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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 5 to 28
February 2013 and legislative instruments registered with the Federal Register
of Legislative Instruments (FRLI) during the period 5 January to 15 February 2013.
The report also provides the committee's comments on a number of responses to
comments made in previous committee reports.
Bills
introduced 5 to 28 February 2013
The
committee considered 29 bills all but one of which were introduced with a
statement of compatibility. Twelve of the bills considered do not require
further scrutiny as they do not appear to give rise to human rights concerns.
The committee has identified 17 bills that it considers require further
examination and for which it will seek further information.
Instruments registered between 5 January 2013 and 15
February 2013
The committee considered 300 legislative instruments. The
full list of instruments scrutinised by the committee can be found in Appendix
1.
The majority of these instruments do not appear to raise any
human rights concerns and have statements of compatibility that are adequate. The
committee will seek further information in relation to four instruments before
forming a view about their compatibility. The committee has deferred
consideration of two instruments.[1]
The remaining 83 instruments do not appear to raise any human
rights concerns but have statements of compatibility that do not fully meet the
committee's expectations. The committee proposes to write to the relevant
Ministers in a purely advisory capacity to provide guidance on preparing statements
of compatibility.
The
committee considered 16 ministerial responses to comments made in various
previous reports. The committee has concluded its examination of seven bills
and intruments and has decided to seek further clarification in relation to two
bills[2].
The
committee has suggested modifications to the explanatory memorandum in its
comments on one bill[3] and has suggested the inclusion of
safeguards for two bills.[4] The committee regrets that two
bills had long been passed by the Parliament before the committee received the
Minister's response.[5]
The committee has decided to defer its consideration of
responses in relation to five bills and instruments to enable closer
examination of the issues in light of the information provided in the response.
Issues arising
A number of the bills
considered by the committee in this report have led it to reflect on some fundamental
principles with regard to the role of this committee in the scrutiny of
legislation.
Human rights
scrutiny of appropriation bills
In commenting on the two
appropriation bills considered in this report,[6]
the committee has noted that it does not anticipate it will generally be
necessary for it to make substantive comments on such bills. Nonetheless, the
committee has set out its expectation that the incorporation of human rights
considerations in the underlying budgetary processes, where appropriate, would
provide the most practical approach to ensuring that human rights are taken
into account in the development of policy and legislation. The committee has
stated that it would find it helpful if the statements of compatibility that
accompany appropriation bills identified any proposed cuts in expenditure which
may amount to retrogression or limitations on human rights.
Human rights scrutiny
of principal acts
The committee has noted a
tendency for proponents of legislation to suggest that, where an amending bill
incorporates by reference the provisions of an existing Act, such amendments do
not raise any human rights concerns by virtue of this reference to existing
legislation.
In this report, the
committee sets out its expectation that in such circumstances the statement of
compatibility should include an analysis of the human rights implications and
compatibility of the provisions of the existing or parent Act as they are
applied or extended by the amendment.[7]
The committee expects that this practice will be adopted even where the parent Act
commenced operation before the commencement of the Human Rights
(Parliamentary Scrutiny) Act 2011 (the Act).
This approach is
consistent with the committee's functions under the Act in two respects. First,
the operation of amendments have to be analysed in terms of their legal effect
and practical impact, which can only be done by reviewing their operation in
the statutory framework of which they form part. Second, such a review
contributes to the committee's performance of its mandate 'to examine Acts for
compatibility with human rights, and to report to both Houses of the Parliament
on that issue'.[8]
Human rights
scrutiny of national co-operative or uniform schemes of legislation
The committee has taken
the opportunity provided by the Marine Safety (Domestic Commercial Vessel)
National Law Amendment Bill 2013, to set out its concerns regarding areas of
activity regulated under national schemes of legislation resulting from
intergovernmental agreements. While the minor amendments proposed by this bill
do not give rise to any human rights concerns, the committee considers that the
Marine Safety (Domestic Commercial Vessel) National Law Act 2012 gives
rise to human rights concerns. The committee has noted the challenges for human
rights scrutiny posed by national co-operative schemes of legislation and has
stated its view that the issue of compatibility with human rights should be an
integral part of the development of any national scheme.
The committee has
determined that I should draw attention to each of these issues in my tabling
statement.
Mr Harry Jenkins MP
Chair
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