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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 9 December to 12 December
2013 and legislative instruments received during the period 23 November 2013
and 31 January 2014. The committee has also considered responses to the
committee's comments made in previous reports.
Bills introduced 9 December to 12 December 2013
The committee considered twelve bills,
all of which were introduced with a statement of compatibility. Of these twelve
bills, six 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 six
bills that it considers require further examination and for which it will seek
The committee also commented on three
bills deferred from its First Report of the 44th Parliament.
Legislative instruments received between
23 November 2013 and 31 January 2014
The committee considered 315
legislative instruments received between 23 November 2013 and 31 January
2014. The full list of instruments scrutinised by the committee can be found in
Appendix 1 to this report.
Of these 315 instruments, 294 (or over
93 percent) do not appear to raise any human rights concerns and are
accompanied by statements of compatibility that are adequate. A further 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 has decided to seek further information from the
relevant Minister in relation to the remaining 12 instruments before forming a
view about their compatibility with human rights.
The committee has deferred its
consideration of three instruments. One of these raises issues in relation to
Australia's sanctions and extradition regimes that our predecessor committee
commented on in the 43rd Parliament.
The committee wrote to the former Minister for Foreign Affairs and Trade to
request a review of the sanctions regime in light of Australia's international
human rights obligations and to report back to the committee in the 44th
Parliament. The former Minister responded stating that he had instructed the
department to carefully consider the committee's recommendation. The committee
has decided to draw the current Minister for Foreign Affairs' attention to the
committee's request and defer consideration of this instrument until it has
received the Minister's response.
The committee has decided to defer a
further two instruments while it considers our predecessor committee's
recommendation that a 12-month review of the Stronger Futures package of
legislation be undertaken in the 44th Parliament to evaluate the
latest evidence and consider the continuing necessity for the Stronger Futures
The committee has considered six
responses, four of which were in response to the committee's comments its First
Report of the 44th Parliament and two responses to comments made
in previous reports by our predecessor committee in the 43rd
Parliament. The committee has concluded its consideration of two bills and three
instruments as the responses relating to them appear to have adequately
addressed the committee's concerns.
The committee has decided to write to
the relevant Ministers seeking further information, or suggesting the inclusion
of safeguards, in relation to two bills.
The committee notes that a number of
responses to comments in its First Report of the 44th Parliament
were not received in time to be considered in this report. The committee will consider
these responses in its next report.
In its First Report of the 44th
Parliament, the committee highlighted the importance it places on
statements of compatibility and observed that the quality of a number of statements
of compatibility accompanying legislation considered in that report fell short
of the committee's expectations. The committee set out its expectation that
statements of compatibility should provide a clear justification for each
limitation and demonstrate that it is aimed at a legitimate objective and that there
is a rational and proportionate connection between the limitation and the
In particular, the statement of
compatibility should set out how the objectives being sought have been weighed
against any limitations on rights. The statement should also set out the
safeguards that will be applied to ensure that the implementation of any
limitations is compatible with human rights.
Regrettably, the committee notes that
the statements of compatibility accompanying some significant bills and
instruments considered during this current reporting period have fallen short
of the committee's minimum expectations so as to restrict a full and proper
examination of the human rights compatibility of the measures.
The committee is particularly
concerned to note that some statements of compatibility provide assertions with
no supporting evidence.
The committee emphasises that it is not enough for a statement of compatibility
to merely claim that a measure will contribute to the achievement of a
particular objective or that a measure is 'necessary, reasonable and
proportionate'. The committee considers that the sponsor of a bill or instrument
bears the onus of demonstrating that this is the case. Where the matter is
capable of evaluation in the light of empirical evidence, the statement of
compatibility should set this evidence out in sufficient detail to facilitate the
committee's consideration of the compatibility of the measure with human rights.
The committee will continue to write
to the sponsors of bills and instruments to draw attention to the committee's
expectations for statements of compatibility when it considers that particular
statements do not adequately meet these expectations.
At the same time, the committee notes
that some statements of compatibility have assisted the committee in its work. The
statement of compatibility that accompanied the Defence Legislation Amendment
(Woomera Prohibited Area) Bill 2013 is a case in point.
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