Posted 16/03/2022 by Stephanie Gill
For the last ten years, all Bills and legislative instruments have been considered for compatibility with human rights by the Parliamentary Joint Committee on Human Rights (the committee). Over this period 58 parliamentarians have been appointed to the ten member committee, with Graham Perrett MP the longest-serving. While it’s members have predominantly come from the two major parties, it has also incorporated thirteen minor party members and one independent member—Cathy McGowan. The committee has been led by six chairs including senators Dean Smith and Sarah Henderson and members Ian Goodenough, Harry Jenkins, Phillip Ruddock and current Chair Anne Webster.
Enhancing scrutiny
The committee resulted from one of a number of recommendations of the National Human Rights Consultation (NHRC) report, produced in 2009 designed to enhance scrutiny by the Parliament on human rights matters and to improve the quality of the legislation itself. Within a year, this recommendation was implemented by Human Rights (Parliamentary Scrutiny) Bill 2011. On 1 March 2012 in the House of Representatives and 13 March 2012 in the Senate, resolutions appointing the committee were passed. As a statutory committee, it continues to be re-established at the commencement of each Parliament.
Assessing compatibility with human rights
The role of the committee is set out in section 7 of the Human Rights (Parliamentary Scrutiny) Act 2011. The committee’s main function involves assessing Bills and legislative instruments for compatibility with human rights—set out in the seven international treaties to which Australia is a party. It also publishes the committee’s initial examination in a scrutiny report that is usually tabled during each sitting week. Since 2012, the committee has tabled 123 Human rights scrutiny reports including one scrutinising COVID-19 legislation. According to the committee’s annual reports, it has examined 2,020 Bills and 15,737 legislative instruments, or on average 238 Bills and 1,851 legislative instruments per year.
The right to privacy is the most commonly engaged human right
The committee’s annual reports indicate the most commonly engaged human rights considerations identified in legislation.
From the 21 human rights raised across the committee’s eight annual reports, the right to privacy was the most common, as indicated in the below graph.
Source: PJCHR Annual Reports
The right to privacy has held the number one spot in the committee’s list of most commonly engaged rights on five of eight occasions and is specifically contained in Article 7 of the International Covenant on Civil and Political Rights. Notable recent legislative examples engaging with the right to privacy include the Social Security (Administration) Amendment (Continuation of Cashless Welfare) Bill 2020, Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 and Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Bill 2021.
In addition to the committee identifying which human rights are engaged, it then determines if further action is required by the relevant portfolio Minister. Between 2012 and 2020:
- 22 per cent of Bills required a response from the Minister;
- 9 per cent of Bills were advice only; and
- 70 per cent of Bills raised no concerns.
| Action required on Bills |
| Year |
Response required |
Advice only |
No. concerns |
No. considered |
| 2012–13 |
137 |
12 |
152 |
289 |
| 2013–14 |
71 |
10 |
110 |
191 |
| 2014–15 |
53 |
26 |
161 |
240 |
| 2015–16 |
31 |
17 |
144 |
192 |
| *2016–17 |
54 |
42 |
309 |
405 |
| 2018 |
38 |
19 |
181 |
238 |
| 2019 |
26 |
43 |
146 |
213 |
| 2020 |
31 |
15 |
206 |
252 |
| Total |
441 |
184 |
1409 |
2020 |
* (30 August 2016 to 31 December 2017)
Source: PJCHR Annual Reports
Over time there has been a downward trend in the number of Bills requiring a response from the Minister and fluctuations in the number of Bills where the committee provided advice only comment, and in Bills which raised no human rights concerns. Almost all legislative instruments (97 per cent) did not raise issues of human rights concern.
In addition to this overview, further information about the particular rights engaged by the Bills are available in the scrutiny reports and index of bills and legislative instruments.