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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
House of Representatives
HUMAN RIGHTS (Parliamentary scrutiny) BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
HUMAN RIGHTS (Parliamentary scrutiny) BILL 2010
Outline
This Bill, together with the Human Rights (Parliamentary Scrutiny)
(Consequential Provisions) Bill 2010, implements the legislative
elements of Australia's Human Rights Framework announced by the
Government in April 2010. The Human Rights Framework outlines a range
of measures to further protect and promote human rights in Australia.
It reflects the key recommendations of the National Human Rights
Consultation Committee which undertook extensive public consultation on
the promotion and protection of human rights in Australia.
Part 1 of the Bill deals with preliminary matters including
commencement and definitions. The Bill will define 'human rights' as
the rights and freedoms recognised or declared by the seven core United
Nations human rights treaties as they apply to Australia. These
treaties are:
. International Convention on the Elimination of All Forms of Racial
Discrimination
. International Covenant on Civil and Political Rights
. International Covenant on Economic, Social and Cultural Rights
. Convention on the Elimination of All Forms of Discrimination against
Women
. Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
. Convention on the Rights of the Child, and
. Convention on the Rights of Persons with Disabilities.
Part 2 of the Bill establishes the Parliamentary Joint Committee on
Human Rights (the Committee) and sets out the functions and
administrative arrangements for the Committee.
The Committee will have the functions of examining Acts, bills for Acts
and legislative instruments for compatibility with Australia's human
rights obligations and reporting to both Houses of Parliament. It will
also inquire into, and report to Parliament, on matters relating to
human rights referred to it by the Attorney-General.
Part 3 of the Bill introduces a requirement for statements of
compatibility to be prepared for all bills and legislative instruments
subject to disallowance. A statement of compatibility must assess
whether the bill or legislative instrument is compatible with the human
rights in the seven core United Nations human rights treaties.
For bills, preparation and presentation to Parliament of a statement
will be the responsibility of the Minister or private member or Senator
responsible for the bill. For legislative instruments, the amendments
in the Human Rights (Parliamentary Scrutiny) (Consequential Provisions)
Bill 2010 will require a rule-maker to lodge a statement of
compatibility as part of the explanatory statement of a legislative
instrument. The explanatory statement is then tabled with that
instrument in accordance with the requirements in the Legislative
Instruments Act 2003.
Part 4 of the Bill deals with miscellaneous matters and enables the
Governor-General to make regulations.
The Human Rights (Parliamentary Scrutiny) (Consequential Provisions)
Bill 2010 contains the consequential amendments to the Legislative
Instruments Act relating to statements of compatibility. It also
contains amendments to the Administrative Appeals Tribunal Act 1975 to
include the President of the Australian Human Rights Commission as an
ex officio member of the Administrative Review Council, as announced
under the Human Rights Framework, and related amendments.
Financial Impact Statement
The items in this Bill have no financial impact on Government revenue.
Part 1 - Preliminary
Clause 1: Short title
Clause 1 provides that when the Bill is enacted, it is to be cited as
the Human Rights (Parliamentary Scrutiny) Act 2010.
Clause 2: Commencement
Sections 1-3 will commence on the day the Act receives Royal Assent.
Parts 2, 3 and 4 of the Bill will commence on the later of 1 January
2011 and 28 days after the Act receives the Royal Assent.
Clause 3: Definitions
Clause 3 defines the key terms used in the Bill. The term 'human
rights' is defined in the Bill as the rights and freedoms recognised or
declared by the seven core United Nations human rights treaties as that
treaty applies to Australia. The treaties are:
. International Convention on the Elimination of All Forms of Racial
Discrimination
. International Covenant on Civil and Political Rights
. International Covenant on Economic, Social and Cultural Rights
. Convention on the Elimination of All Forms of Discrimination against
Women
. Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
. Convention on the Rights of the Child, and
. Convention on the Rights of Persons with Disabilities.
The term 'rule maker' has the same meaning as in the Legislative
Instruments Act 2003.
Part 2-Parliamentary Joint Committee on Human Rights
Clause 4: Parliamentary Joint Committee on Human Rights
Clause 4 provides that as soon as practicable after commencement of the
first session of each Parliament, a Joint Committee on Human Rights is
to be appointed according to the practices of the Parliament.
Clause 5: Membership of the Committee
Clause 5 sets out the administrative arrangements for the establishment
of the Committee and for the appointment of members according to the
practices of Parliament. This clause is consistent with provisions for
the appointment of other statutory committees such as the Parliamentary
Joint Committee on the Australian Commission for Law Enforcement
Integrity, the Parliamentary Joint Committee on the Australian Crime
Commission and the Parliamentary Joint Committee on Corporations and
Financial Services.
The Committee will consist of ten (10) members of Parliament, five (5)
members of the House of Representatives, to be appointed by that House,
and five (5) members of the Senate, to be appointed by the Senate. A
Minister, President, Speaker, Deputy-President or Chair of Committees
cannot be appointed to the Committee and will cease to be a member of
the Committee if he or she obtains one of these offices after their
appointment. Either House of the Parliament may appoint one of its
members to fill a vacancy amongst the members of the Committee
appointed by that House.
Clause 6: Powers and proceedings of the Committee
Clause 6 requires all matters relating to the powers and proceedings of
the Committee to be determined by resolution of both Houses of
Parliament.
Clause 7: Functions of the Committee
Clause 7 sets out the functions of the Committee which are:
. to examine Bills for Acts and legislative instruments for compatibility
with human rights
. to examine Acts for compatibility with human rights, and
. to inquire into any matter relating to human rights which is referred
to it by the Attorney-General.
The Committee is to report on each of these matters to both Houses of
Parliament.
The Committee will examine bills and legislative instruments and report
to both Houses of Parliament on compatibility with human rights as
defined in clause 3. This is primarily a traditional scrutiny function
and will be the major activity of the Committee. The Committee will
also be able to inquire more thoroughly into bills and legislative
instruments including calling for submissions, holding public hearings
and examining witnesses, when it considers this appropriate.
In addition to the scrutiny function, the Committee will be able to
examine Acts and conduct broader inquiries on matters related to human
rights referred to it by the Attorney-General. In performing these
functions, the Committee will be able to call for submissions, hold
public hearings and examine witnesses.
The Committee will be able to determine the manner in which it performs
its scrutiny function to ensure that reports on compatibility of bills
and legislative instruments with human rights are provided to
Parliament in a timely manner.
Part 3-Statements of compatibility
Clause 8: Statements of compatibility in relation to Bills
Clause 8 sets out the requirements for preparation of statements of
compatibility for bills and presentation of statements to Parliament.
The clause does not prescribe a particular form for statements of
compatibility but provides that a statement of compatibility must
include an assessment of whether the bill is compatible with human
rights as defined in clause 3. 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.
The member responsible for the bill must cause the statement of
compatibility to be prepared. The statement of compatibility must be
presented to the House or the Senate (as appropriate) by the Member of
Parliament who introduces the bill, or another member acting on his or
her behalf. A statement will ordinarily form part of the explanatory
memorandum for the bill.
Subclause 8(4) provides that a statement of compatibility in relation
to a bill is not binding on a court or tribunal. This provision is not
intended to exclude the operation of section 15AB of the Acts
Interpretation Act 1901 which deals with use of extrinsic material in
the interpretation of an Act.
As is currently the case, courts may use extrinsic material to assist
in determining the meaning of a provision in the event of ambiguity.
This can include other material considered by Parliament in the passage
of legislation such as accompanying Explanatory Memoranda, Second
Reading Speeches and Parliamentary Committee reports. Consistent with
current rules of statutory interpretation, a statement of compatibility
and a report of the Joint Committee on Human Rights could be used by a
court to assist in ascertaining the meaning of provisions in a statute
where the meaning is unclear or ambiguous.
Subclause 8(5) provides that a failure to comply with this clause does
not affect the validity or operation or enforcement of the Act or any
other law of the Commonwealth.
Clause 9: Statements of compatibility in relation to certain legislative
instruments
Clause 9 sets out the requirements for preparation of statements of
compatibility for legislative instruments subject to disallowance under
the Legislative Instruments Act. A statement of compatibility must
include an assessment of whether the legislative instrument is
compatible with human rights as defined in clause 3. As with bills,
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 legislative instrument on
human rights.
The rule-maker for a disallowable legislative instrument must cause a
statement of compatibility to be prepared in respect of that
legislative instrument.
The note under subclause 9(1) refers the reader to section 4 of the
Legislative Instruments Act and explains that the statement of
compatibility must be included in the explanatory statement for a
legislative instrument to be prepared by the rule-maker. The
Legislative Instruments Act sets out the process for tabling
legislative instruments and accompanying explanatory statements.
Amendments to the Legislative Instruments Act to include a requirement
for statements of compatibility for a disallowable legislative
instrument to form part of an explanatory statement prepared by the
rule-maker of that instrument are contained in the Human Rights
(Parliamentary Scrutiny) (Consequential Provisions) Bill 2010.
Subclause 9(3) provides that a statement of compatibility in relation
to a legislative instrument is not binding on a court or tribunal.
This provision is not intended to exclude the operation of section 15AB
of the Acts Interpretation Act. Consistent with current rules of
statutory interpretation, a statement of compatibility in relation to a
disallowable legislative instrument could be used by a court to assist
in ascertaining the meaning of provisions in a legislative instrument
where the meaning is unclear or ambiguous.
Part 4-Miscellaneous
Clause 10: Regulations
This clause enables the Governor-General to make regulations as
required or permitted by the Bill, or as necessary or convenient in
order to give effect to the Bill.