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Executive Summary

This report provides the Parliamentary Joint Committee on Human Rights' view on the compatibility with human rights as defined in the Human Rights (Parliamentary Scrutiny) Act 2011 of bills introduced into the Parliament during the period 17 to 20 June 2013 and legislative instruments registered with the Federal Register of Legislative Instruments (FRLI) during the period 18 May to 7 June 2013. The committee has also considered 42 responses to the committee's comments made in previous reports.

Bills introduced 17 to 20 June 2013

The committee considered 13 bills, all of which were introduced with a statement of compatibility. The committee considers that none of these bills appear to give rise to human rights concerns. Some of these bills do not engage human rights, some engage and promote rights and a number engage and limit rights, but are accompanied by statements of compatibility that set out an adequate justification for each of these limitations.[1] In one bill, the Tax Laws Amendment (2013 Measures No. 3) Bill 2013, a number of civil penalty provisions are proposed, yet the statement of compatibility does not assess whether these provisions are properly characterised as 'civil' or 'criminal' under human rights law. The committee intends to write to the Treasurer to draw his attention to the committee's recently issued Practice Note 2 (interim) that sets out the type of analysis it considers may be appropriate to include in statements of compatibility accompanying bills that introduce or incorporate civil penalty regimes.

Select instruments registered between 18 May to 7 June 2013

The committee considered 140 legislative instruments registered with FRLI between 18 May 2013 and 7 June 2013. The full list of instruments scrutinised by the committee can be found in Appendix 1 to this report.

127 instruments do not appear to raise any human rights concerns and are accompanied by statements of compatibility that are adequate. Six instruments do not appear to raise any human rights concerns but are not accompanied by statements of compatibility that fully meet the committee's expectations. As the instruments in question do not appear to raise human rights compatibility concerns, the committee has written to the relevant Ministers in a purely advisory capacity providing guidance on the preparation of statements of compatibility.

The committee is seeking further information from the relevant Minister on five instruments before forming a view about their compatibility with human rights. The committee has also made comments on two instruments that relate to the same sanctions regime as that contained in an earlier instrument it had previously commented on. It has received a response from the Minister for Foreign Affairs in relation to the previously registered instrument, and so has considered these two related instruments in its comments relating to this response.[2]

Responses

The committee has considered 42 responses to comments made in various previous reports. The committee has concluded its consideration of 16 bills and 15 instruments as the 28 responses relating to them appear to have adequately addressed the committee's concerns or further information is unlikely to be elicited. The committee has made comments in relation to a further 14 responses and in some cases has recommended that a more detailed review of the human rights compatibility of the relevant legislative regime be undertaken.

The committee notes with appreciation that a number of responses indicate that the proponent of the bill or instrument is giving consideration to the concerns raised by the committee.[3] It notes, with thanks, the Prime Minister's response to its concerns about the incorporation of human rights considerations in the drafting process for national uniform legislation, and her advice that consideration will be given to amending the Protocol on Drafting National Uniform Legislation to refer to the Commonwealth's requirements for assessing human rights compatibility.[4]

The committee thanks the Attorney-General for his indication that his Department will consider whether it may be appropriate to specifically include provision in the Human Rights (Parliamentary Scrutiny) Act 2011 in relation to constitutional alterations.[5] The committee considers that this review is important as it considers that the human rights compatibility of proposals to alter the Constitution should be subject to scrutiny by the committee and the Parliament in the ordinary way. The committee notes that even if a constitutional alteration might be lawful under Australian law, it would engage Australia's responsibility under international law if it is inconsistent with Australia's international human rights obligations. This highlights the importance of the role of this committee in scrutinising such proposals before they become law.

Notice of motion to disallow

The committee notes that in scrutinising instruments it seeks to operate within the disallowance timeframe established by the Legislative Instruments Act 2003. It therefore asks that correspondence be provided to the committee in a timely manner, and in the event that a response addressing the committee's comments is not received, the committee notes the option available to it to give a notice of motion to disallow the instrument as a precautionary measure. On 18 June 2013 the committee took this step in relation to the Customs (Drug and Alcohol Testing) Regulation 2013. As the committee had not received a response to its concerns, notice was given in order to give the committee adequate time to consider the compatibility of the instrument, pending the Minister's response. The committee now thanks the Minister for Home Affairs and Justice for his response and his commitment to making a broad range of amendments to the instrument that the committee considers, once implemented, will address its concerns with this instrument.[6]

Ministerial discretion

The committee notes its comments on the Attorney-General's response in relation to the safeguards in the Extradition Act 1988 and the Mutual Assistance in Criminal Matters Act 1987.[7]In examining legislation for compatibility with human rights, the committee emphasises that its task is to 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. It does not consider that a general Ministerial discretion provides an appropriate human rights safeguard. The committee must assess the compatibility of legislation as drafted, including its potential to be applied in ways which might breach human rights. The committee notes that there may be an obligation under international law for a Minister, in exercising his or her discretion, to ensure that the law is applied in a manner that respects human rights. However, this, on its own, cannot be considered to adequately safeguard human rights in domestic law.

 

Mr Harry Jenkins MP
Chair

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