Practice Note 1
This practice note:
- sets out the underlying principles that the committee applies to
the task of scrutinising bills and legislative instruments for human rights compatibility
in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011;
- gives guidance on the committee’s expectations with regard to
information that should be provided in statements of compatibility.
The committee’s approach
to human rights scrutiny
committee views its human rights scrutiny tasks as primarily preventive in
nature and directed at minimising risks of new legislation giving rise to
breaches of human rights in practice. The committee also considers it has an
educative role, which includes raising awareness of legislation that promotes human
with the approaches adopted by other human rights committees in other
jurisdictions, the committee will test legislation for its potential to be
incompatible with human rights, rather than considering whether particular
legislative provisions could be open to a human rights compatible interpretation.
In other words, the starting point for the committee is whether the
legislation could be applied in ways which would breach human rights and not
whether a consistent meaning may be found through the application of statutory
- The committee
considers that the inclusion of adequate human rights safeguards in the legislation
will often be essential to the development of human rights compatible
legislation and practice. The inclusion of safeguards is to ensure a proper
guarantee of human rights in practice. The committee observes that human rights
case-law has also established that the existence of adequate safeguards will often
go directly to the issue of whether the legislation in question is compatible.
Safeguards are therefore neither ancillary to compatibility and nor are they merely
‘best practice’ add-ons.
committee considers that, where relevant and appropriate, the views of human
rights treaty bodies and international and comparative human rights jurisprudence
can be useful sources for understanding the nature and scope of the human
rights defined in the Human Rights (Parliamentary Scrutiny) Act 2011.
committee notes that previously settled drafting conventions and guides are not
determinative of human rights compatibility and may now need to be re-assessed
for the purposes of developing human rights compatible legislation and
expectations for statements of compatibility
committee views statements of compatibility as essential to the consideration
of human rights in the legislative process. It is also the starting point of
the committee's consideration of a bill or legislative instrument.
committee expects statements to read as stand-alone documents. The committee relies on
the statement to provide sufficient information about the purpose and effect of
the proposed legislation, the operation of its individual provisions and how
these may impact on human rights. While there is no prescribed form for statements
under the Human Rights (Parliamentary Scrutiny) Act 2011, the committee
has found the
templates provided by the
Attorney-General’s Department to be useful models to follow.
committee expects statements to contain an assessment of whether the
proposed legislation is compatible with human rights. The committee expects
statements to set out the necessary information in a way that allows it to
undertake its scrutiny tasks efficiently. Without this information, it is often
difficult to identify provisions which may raise human rights concerns in the
with the steps set out in the
assessment tool flowchart (and related guidance)
developed by the Attorney-General’s Department, the committee would prefer for
statements to provide information that addresses the following three criteria where
a bill or legislative instrument limits human rights:
and how the limitation is aimed at achieving a legitimate objective;
and how there is a rational connection between the limitation and the objective;
and how the limitation is proportionate to that objective.
- If no
rights are engaged, the committee expects that reasons should be given, where
possible, to support that conclusion. This is particularly important where such
a conclusion may not be self-evident from the description of the objective provided
in the statement of compatibility.
For further information contact:
Parliamentary Joint Committee on Human Rights
PO Box 6100
Canberra ACT 2600
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