Chapter 7 Parliaments and human rights

7.1                   Organisations that provided evidence to the inquiry had differing views on what roles parliaments should play in protecting human rights within the region.

7.2                   RegNet urged caution noting that parliaments in many pacific countries were not representative of their population, stating:

We would urge caution in considering Parliaments as key institutions for protecting human rights in the region. The Inter-Parliamentary Union reported in March 2008 that Pacific countries have the world's lowest proportion of female representatives. Solomon Islands, Nauru and Tuvalu are among the 13 countries worldwide with no women in Parliament at all. The others include Libya, Saudi Arabia and Burma. The Committee should be careful of using Parliaments as the only mechanism to promote human rights outcomes with respect to groups who are not represented in the Parliament, such as women, people with disabilities, migrants and refugees and indigenous groups.[1]

7.3                   The Asia-Pacific Forum held a contrary view believing that parliaments played a critical role, and advised that:

…the role of parliaments, parliamentarians and legislators remains crucial to the promotion and protection of human rights. In all regional settings, parliamentarians and legislators either play – or potentially could play – a critical role in the incremental “building block” approach to the establishment and/or maintenance of NHRIs and their compliance to the “Paris Principles”, alternative forms of sub-NHRI national human rights machinery, and to the progression of discussions around sub-regional human rights mechanisms.[2]

7.4                   Amnesty was also of the view that parliament could play an important role and encouraged greater engagement ‘through the ASEAN parliamentary process, the international process and, also, more informally’.[3]

7.5                   RegNet agreed that it was important to have parliament-to-parliament initiatives,[4] and other evidence to the Committee also identified the need for parliamentarians to put pressure on governments or to advocate and lobby in order for governments to do the right thing.[5]

7.6                   The AHRC argued that Australian parliaments can ‘both contribute to, and learn from, the practices of other parliaments so far as effective parliamentary procedures for the protection of human rights are concerned’.[6]

7.7                   The AHRC also made a number of recommendations including:

…enacting legislation which gives effect to human rights guarantees, including international treaty obligations, scrutinising bills and delegated legislation to ensure consistency with human rights standards and scrutinising the policies and actions of the executive and in some cases non-state actors for consistency with human rights norms. Importantly, we recommend the establishment of a parliamentary committee to review the implementation of a UN treaty body, including observations on Australian government reports and UN committee decisions on individual complaints.[7]

7.8                   The HRLRC was of the opinion that parliamentarians were ‘essential actors’ in the protection and promotion of human rights[8] and noted that in Australia ‘…there are currently no formal domestic mechanisms to ensure comprehensive parliamentary scrutiny of human rights, including by independently monitoring and reporting on the implementation of the recommendations of UN treaty bodies or Special Procedures’.[9]

7.9                   The Australian Bahá’í Community was of the view that parliaments could be effective in measuring progress against human rights benchmarks[10] and, more specifically, noted that the role of the Committee could be strengthened, stating:

We see the equivalent of human rights subcommittees in other Western parliaments having a very proactive role in processes that this committee is not tasked with. It would be good to see the role of this committee strengthened so that it can have a more active role, and given its place geographically and politically in the region it could start to expand its mandate as well.[11]

7.10               Amnesty was also of the view that the Committee could engage more, stating:

[Amnesty International] would welcome any engagement that this committee can have through the ASEAN parliamentary process, the international process and, also, more informally.[12]

International approaches

Joint Committee on Human Rights, United Kingdom

7.11               The United Kingdom (UK) Joint Committee on Human Rights consists of twelve members appointed from both the House of Commons and the House of Lords. The Committee is charged with considering human rights issues in the UK and undertakes thematic inquiries on human rights issues and reports its findings and recommendations. It scrutinises all Government Bills and picks out those with significant human rights implications for further examination.[13]

7.12               The Joint Committee also looks at Government action to deal with judgments of the UK courts and the European Court of Human Rights where breaches of human rights have been found. As part of this work, the Joint Committee looks at Remedial Orders, the legislative mechanism that allows legislation to be amended in response to these judgments.[14]

7.13               Additional functions of the Joint Committee include scrutiny of compliance with UN human rights treaties; scrutiny of human rights treaties prior to ratification; and inquiries into urgent thematic human rights issues.[15]

7.14               The Council of Europe[16] has noted that the Joint Committee ‘is a rare example of the existence of a special parliamentary body with a specific mandate to verify and monitor the compatibility of national law and practice with the European Convention on Human Rights’.[17]

Tom Lantos Human Rights Commission, United States

7.15               In 1983, the Congressional Human Rights Caucus (CHRC) was founded in the defence of all rights codified in the UN Universal Declaration of Human Rights.[18]

7.16               In 2008, the CHRC was replaced with the Tom Lantos Human Rights Commission. According to its website, the Tom Lantos Human Rights Commission’s mission is ‘to promote, defend and advocate internationally recognised human rights norms in a non-partisan manner, both within and outside of Congress, as enshrined in the Universal Declaration of Human Rights and other relevant human rights instruments’,[19] and it shall:

• develop congressional strategies to promote, defend and advocate internationally recognised human rights norms reflecting the role and responsibilities of the United States Congress;
  
  
• raise greater awareness of human rights issues among Members of Congress and their staff, as well as the public;
  
  
• provide expert human rights advice to Members of Congress and their staff;
  
  
• advocate on behalf of individuals or groups whose human rights are violated or are in danger of being violated;
  
  
• collaborate closely with professional staff of relevant congressional committees on human rights matters;
  
  
• collaborate closely with the President of the United States and the Executive Branch, as well as recognised national and international human rights entities, to promote human rights initiatives in the United States Congress; and
• encourage Members of Congress to actively engage in human rights matters.[20]

Subcommittee on Human Rights, European Parliament

7.17               The Subcommittee on Human Rights consists of 32 Members of the European Parliament and is a subcommittee of the Committee on Foreign Affairs. Its main responsibilities are on ‘issues concerning human rights, the protection of minorities and the promotion of democratic values in third countries’.[21]

7.18               The Subcommittee on Human Rights provides:

…a permanent forum for discussions on the human rights situation and the development of democracy in non-EU countries, with other EU institutions, UN Special Rapporteurs and representatives of the UNDP, the Council of Europe, government representatives, human rights activists and NGOs. It has conducted delegation visits to individual third countries seeking EU membership. One of the main goals of the Subcommittee has been to contribute to the mainstreaming of human rights issues into all aspects of the EU's external relations and the relevant [European Parliament] activities. It has done so inter alia by drafting guidelines for all the [European Parliament’s] inter‑parliamentary delegations with third countries.[22]

Senate Standing Committee on Human Rights, Canada

7.19               In March 2001, the Senate of Canada established the Standing Committee on Human Rights which has a mandate to examine issues relating to human rights, and, inter alia, to review the machinery of government dealing with Canada’s international and national human rights obligations.[23]

7.20               The Standing Committee is able to examine a Bill or undertake a special study. In 2009, the Senate of Canada referred the following inquiries to the Standing Committee:

• examine the issue of the sexual exploitation of children in Canada;
  
  
• monitor the implementation of recommendations contained in the Committee’s report entitled Children: The Silenced Citizens: Effective Implementation of Canada’s International Obligations with Respect to the Rights of Children;
  
  
• examine issues of discrimination in the hiring and promotion practices of the Federal Public Service; and
  
  
• monitor issues relating to human rights and, inter alia, to review the machinery of government dealing with Canada’s international and national human rights obligations.

Inter-Parliamentary Union

7.21               Established in 1889, the Inter-Parliamentary Union (IPU):

• fosters contacts, co-ordination, and the exchange of experience among parliaments and parliamentarians of all countries;
  
  
• considers questions of international interest and concern and expresses its views on such issues in order to bring about action by parliaments and parliamentarians;
  
  
• contributes to the defence and promotion of human rights – an essential factor of parliamentary democracy and development;
  
  
• contributes to better knowledge of the working of representative institutions and to the strengthening and development of their means of action;
  
  
• supports the efforts of the United Nations through close collaboration; and
  
  
• operates with regional inter-parliamentary organisations, as well as with international intergovernmental and non-governmental organisations.[24]

7.22               There are currently 153 Members and 8 Associate Members of the IPU including Australia.[25] The IPU’s main areas of activity include:

• promoting democracy worldwide through setting standards and guidelines; strengthening representative institutions; promoting human rights and protecting members of parliament; promoting knowledge of parliaments; and providing a guide on parliament and democracy in the twenty-first century;[26]
  
  
• working towards peace and security through working for disarmament and the elimination of conflict situations through political negotiation;[27]
  
  
• sustainable development through protection of the environment and making recommendations with regard to various specific problems of world economic and social development;[28]
  
  
• promoting and defending human rights;[29]
  
  
• creating partnerships between men and women in politics;[30]

  and

• working on common thematic issues relating to education, science and culture.[31]

7.23               In particular, part of the IPU’s work to promote human rights includes taking a stance on human rights issues; ensuring that parliamentarians understand human rights and put human rights promotion and protection at the centre of their legislative and oversight work; setting the course for reconciliation in post-conflict situations; and cooperating with a range of national, regional and international partners to promote and protect the human rights standards.[32]

7.24               The IPU has also established a Committee on the Human Rights of Parliamentarians to protect parliamentarians against human rights abuses.[33] It oversees the implementation of the United Nations human rights treaties; provides support to parliamentary human rights committees and an international platform for their members to share experiences and discuss common challenges; and operates a technical cooperation programme to assist national parliaments, particularly in developing countries, to improve the organisation of their work and strengthen their infrastructure.[34]

7.25               The Australian National Group of the IPU, established in 1956, aims to:

…foster and maintain friendship with, and understanding of, particular countries through links with national legislatures. The Groups meet with members of visiting parliamentary delegations and other distinguished visitors of relevance to the groups, as well as with diplomatic representatives in Australia of the countries concerned. Members of the Groups may also take the opportunity to meet with their counterparts when travelling overseas.[35]

Parliamentarians and the Asia-Pacific

7.26               The Asia-Pacific Forum were also of the opinion that parliamentarians within the region are actively engaged in developing a human rights framework:

Numbers of parliamentarians in the Pacific (for instance, the recent regional consultation for parliamentarians from eleven Pacific Island countries on the Pacific Plan and human rights) and in Asia (where ASEAN parliamentarians supported the quick ratification of the ASEAN Charter and have called for the creation of an ASEAN Human Rights Body) have actively engaged with, and supported, developments relating to human rights framework developments in their respective regions.[36]

7.27               In its submission to the inquiry, the APF noted that the human rights infrastructure in the Pacific is comprised of:

• National constitutions: many Pacific countries have constitutional documents which guarantee fundamental human rights and incorporate the principle of the rule of law including Papua New Guinea, Vanuatu, Nauru, the Republic of the Marshall Islands, Fiji, Kiribati, Samoa, Solomon Islands and Tuvalu.
  
  
• Parliamentary systems: Pacific expressions of the parliamentary foundations of democracy do vary, but are generally underpinned by respect for electoral participation and contested national elections.
  
  
• Governance structures and systems: national laws, regulations, government policies, and service administration though government administration provides the machinery through which human rights can be delivered by government agencies. These structures and systems include ministerial offices, leadership codes, public sector codes of conduct, and other policies and practices related to the exercise of governance powers.
  
  
• Legal systems: legal systems to support the rule of law vary including both traditional courts and associated legal systems and judicial court systems.
  
  
• Active civil society: civil society groups, including non-governmental organisations, exist throughout the region and play an active role in critical analysis of and advocacy for promotion and protection of human rights.
  
  
• Regional infrastructure and initiatives: the Pacific Islands Forum has a Secretariat which services the Forum and governments of the region. There is a range of inter-governmental regional agreements (including multi-lateral and bilateral agreements). Regional and international aid and development agencies operate in the region and increasingly these work with both civil society groups and governments on human rights related matters.[37]

Asia-Pacific Parliamentary Forum

7.28               The Asia-Pacific Parliamentary Forum (APPF), established in Tokyo in 1993, aims to:

…promote greater regional identification and cooperation among national parliamentarians in the Asia-Pacific region, especially those from ASEAN, APEC group nations and the South Pacific Forum. The APPF seeks to further the advancement of peace, freedom, democracy and prosperity.[38]

7.29               The APPF focuses its activities on a wide range of areas, aimed at resolving and preventing problems that the region faces, including politics and security; the economy and the environment; law and order; human rights; and education and cultural exchanges.[39]

7.30               According to the APPF website, it seeks to provide opportunities for federal parliamentarians from the Asia-Pacific region to:

…identify and discuss matters of common concern and interest and to highlight them in a global context; to deepen their understanding of the policy concerns, interests and experiences of the countries of the region; to examine the critical political, social, and cultural developments resulting from economic growth and integration; to encourage and promote regional cooperation at all levels on matters of common concern to the region; and to play the roles of national parliamentarians in furthering in their respective countries a sense of regional cohesion, understanding and cooperation.[40]

7.31               Parliamentarians can participate either as delegates of their parliaments or in a personal capacity. The APPF also acts as the legislative branch of the Asia-Pacific Economic Cooperation, and keeps close ties with other regional integration institutions such as ASEAN, the South Pacific Forum, Pacific Economic Cooperation Council, and Pacific Basin Economic Council.[41]

Other initiatives

Networks of parliamentarians

7.32               Amnesty advised that it had been conducting human rights training for MPs from a number of South Pacific countries and was of the opinion that it was an important example of how to engage on specific issues.[42]

7.33               ACFID suggested that an exchange program focusing on MPs could open a dialogue:

…in countries where civil society does not have much of a voice…Where there are not those sorts of very well coordinated and large NGOs holding the government to account on these issues perhaps there is an opening to engage at that parliamentarian level and try to influence a human rights culture within individual leaders from those countries.[43]

7.34               The ACTU agreed that there is value in developing networks at the parliamentary level, stating:

Inter-parliamentary visits can play an important role in developing and promoting sustained relations between Australia and countries in the Asia-Pacific. These delegations can help build political confidence between Australia and its neighbours and facilitate discussion and promotion of human rights in the region. The ASEAN Inter-Parliamentary Myanmar Caucus (AIPMC) is one such structure, where government and opposition MPs work together to promote human rights and democracy in Burma/Myanmar.[44]

ASEAN Inter-Parliamentary Myanmar Caucus

7.35               The ASEAN Inter-Parliamentary Myanmar Caucus (AIPMC) is a network formed by and for parliamentarians from ASEAN countries, with the aim of advocating for human rights and democratic reform in Myanmar/Burma. Its members represent both the ruling and non-ruling political parties of countries such as Malaysia, Indonesia, Singapore, Thailand, Philippines and Cambodia.[45]

7.36               National caucuses, parliamentary groups and individual parliamentarians from India, the Republic of Korea, Japan, Australia and New Zealand are affiliated with AIPMC. It also works closely with civil society organisations and members of Burma’s government-in-exile, to further the democratic cause in Myanmar/Burma.[46]

7.37               Burma Campaign Australia believed that the AIPMC had expanded, noting that:

…[caucus members] in democratic countries have their own national caucuses as well, so it is a growing movement. Working with the MPs are Burma’s border based civil society human rights organisations and other organisations throughout ASEAN, so there is also a forum alongside it for Burma-focused or Burma-sympathetic civil society organisations throughout ASEAN to work together and collaborate.[47]

7.38               The ACTU noted that participation in the AIPMC was very active and that it has ‘provided a real base of discussion and debate and knowledge in those ASEAN governments’, and added that:

Outside of a foreign ministry to ministry relationship, I think we were promoting this as one example in the region where parliamentary dialogue would be really effective, and for Australia to benefit also from understanding the kinds of perspectives and changing perspectives in the region, around promoting human rights in general.[48]

Improving scrutiny of human rights in Australia

7.39               The federal parliament has passed a number of laws which aim to protect people from breaches of their human rights:

• Australian Human Rights Commission Act 1986;
  
  
• Age Discrimination Act 2004;
  
  
• Disability Discrimination Act 1992;
  
  
• Race Discrimination Act 1975;
  
  
• Sex Discrimination Act 1984; and
  
  
• Human Rights (Sexual Conduct) Act 1994.

7.40               The HRLRC was of the view that ensuring ‘compliance with obligations arising under both international and domestic human rights laws requires effective monitoring systems’.[49] It therefore believed that there was some merit in centralising and formalising the Committee process to review both legislation and delegated legislation and the human rights treaties that Australia has signed onto.[50]

7.41               The HRLRC recommended that the Australian Government establish a Joint Parliamentary Committee on Human Rights to:

• scrutinise all Bills and subordinate legislation for compatibility with protected rights;
  
  
• conduct thematic inquiries into human rights issues;
  
  
• monitor and report on the implementation of the concluding observations and views of UN treaty bodies and the recommendations of the special procedures of the UN Human Rights Council; and
  
  
• monitor and assist in government responses to declarations of incompatibility (under any Australian Human Rights Act) and other court and tribunal decisions and judgments.[51]

7.42               As noted earlier in this chapter, the AHRC was of the view that enacting legislation could ensure consistency with human rights standards through scrutinising the policies and actions of the executive.[52] The AHRC also recommended that the role of the Senate Standing Committee for the Scrutiny of Bills and Senate Standing Committee on Regulations and Ordinances be expanded by amending the former’s terms or reference:

…to require that it report to the Senate on whether any provisions of a proposed Bill appear to be in conflict with Australia’s human rights treaty obligations (in particular but not confined to the principal UN human rights treaties to which Australia is party), and make corresponding amendments to the terms of reference of the Senate Standing Committee on Regulations and Ordinances.[53]

7.43               In a similar vein, the National Human Rights Consultation Committee, in its September 2009 report, recommended that a Joint Committee on Human Rights be established. Its responsibilities would include the review of all bills and relevant legislative instruments for compliance with the ‘interim list of rights for protection and promotion’, and eventually the ‘definitive list of Australia’s human rights obligations’ also recommended by the Consultation Committee.[54]

7.44               The AHRC recommended:

…that reports of the Australian government to United Nations treaty bodies and the concluding observations of those committees adopted after their consideration of Australia’s reports, as well as decisions of those committees in individual cases brought under complaints procedures, are tabled before an appropriate Committee of the Parliament and are discussed by that Committee, and that the Committee keeps under review the implementation of those treaty body recommendations.[55]

7.45               The Commission noted that it is able to investigate human rights breaches, stating that it can:

…receive and investigate acts or practices that may be contrary to a human right or that may constitute workplace discrimination under the HREOC Act. If the complaint is unable to be resolved through conciliation and is not discontinued for other reasons, the President may report on the case and make recommendations. The report is tabled in federal Parliament. These complaints do not give rise to any enforceable legal rights.[56]

Committee comment

7.46               Parliaments from around the world have established different oversight mechanisms, on national and regional levels, designed to ensure that human rights are protected. Each of these bodies plays a critical role in monitoring national and international human rights obligations and providing suggestions and recommendations on how to best promote and protect human rights standards.

7.47               However, the Committee acknowledges that some parliaments are not representative of their population. Parliaments in representative and democratic societies, such as Australia, therefore have a responsibility to assist the international community to help strengthen parliamentary systems and protect fundamental human rights.

7.48               In particular, it should be incumbent on parliamentarians to share their knowledge and expertise, especially in the areas of human rights, to ensure that all states have the same understanding of fundamental human rights.

7.49               The IPU publishes a regular report from its Committee on the Human Rights of Parliamentarians that details cases of human rights abuses against parliamentarians around the world. The Committee is supportive of the IPU process and will investigate ways in which to enhance Australia’s involvement.

7.50               The Committee is also mindful that there is scope for improvement domestically. It notes that the Australian Government is still considering the National Human Rights Consultation report. The Committee wishes to express its support for increased parliamentary scrutiny of human rights implications in domestic legislation.

Senator Michael Forshaw

Chair of Joint Standing Committee on Foreign Affairs, Defence and Trade