The Human Rights (Parliamentary Scrutiny) legislation: an important but “second best” development

By Sarah Joseph

New human rights legislation has finally been approved by the Federal Parliament. The Human Rights (Parliamentary Scrutiny) Bill 2010 will require Ministers, when introducing legislation, to table a Statement of Compatibility outlining the extent to which the legislation complies with Australia’s international human rights obligations.  It will also create a Parliamentary Joint Committee on Human Rights, which will scrutinise whether Bills and existing laws are compatible with human rights.  It will also inquire into any other matter relating to human rights referred to it by the Attorney-General.  Furthermore, the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill provides that the President of the Australian Human Rights Commission will become an ex officio member of the Administrative Review Council, ensuring that the Council incorporates human rights considerations into its discussions.

This legislation is welcome.  It will certainly increase the visibility of human rights concerns regarding new and existing laws, which in turn should increase the accountability of the federal government in this regard.  The passage of these laws fulfils important commitments in the federal government’s Human Rights Framework, announced in April 2010.  The Framework is the government’s response to the report of the National Human Rights Consultation Committee from 2009.

A second best option

While many elements of the Framework are laudable, 18 months on it remains a “second best” option.  The main recommendation from the Consultation Committee was for the adoption of a federal human rights charter, after a wide-ranging consultation which attracted the largest ever response in Australia’s history: the vast majority of respondents favoured a Charter.  And yet the government, claiming a Charter would “divide the community”, shied away from introducing real legal accountability for human rights in the federal sphere.  I commented on this development at the time here.

The opposition’s view

Despite the new Bill’s weakness, the federal coalition voted against it on the basis that its definition of “human rights”, which includes all rights in the seven core UN treaties to which Australia is a party, is too broad. They instead wished human rights to be defined as those already protected under Australian law (see the Senate debate from 25 November here). Such a definition would not have increased in any meaningful way the protection of human rights in Australia.  It would also reinforce an unfortunate Australian exceptionalism: we are the only liberal democratic nation which lacks comprehensive legislative human rights protection.

The opposition is apparently worried that the seven international treaties might, according to Shadow Attorney-General George Brandis, become part of our law “by the back door”, through a “line of High Court authorities commencing with the infamous Teoh case”.  In Teoh, the High Court found that a public official must consider Australia’s obligations under any relevant international treaties when making an administrative decision (in that case, the decision to deport Mr Teoh).  Teoh recognised procedural rights under international treaties (ie a right to argue that a treaty should be complied with), rather than substantive rights (ie a right that a treaty be complied with). Teoh has never been followed since it was decided in 1995, and some members of the High Court signalled a willingness to overturn it in a later case.  The legislation will simply mean that the seven international treaties should be considered by the government when laws are enacted, and by the parliamentary committee in relation to all laws.  Furthermore, a failure to do so will not render the law invalid.

Having said that, the laws are unique.  Similar regimes in other jurisdictions, for example the UK, Victoria, the ACT and New Zealand, have been accompanied by human rights charters. The impact on courts, if any, of Statements of Compatibility and parliamentary human rights committee reports in the absence of a Charter is not well understood. Perhaps it is possible that the law will encourage judges to try to interpret laws in accordance with the seven treaties.  However, at common law, judges are already obligated to try to interpret laws in accordance with Australia’s international obligations in the case of ambiguity.  The new human rights laws might mean that there will be more material for judges to base such interpretations on, namely Statements of Compatibility and reports from the new Parliamentary Committee.  On the other hand, Committee reports and (less likely) Statements of Compatibility may in fact make it clear to a court that a law is in fact not in accordance with human rights and should therefore not be interpreted as being so.

While Senator Brandis’s concerns of backdoor incorporation of treaties were overly alarmist, those of his coalition colleagues were occasionally ludicrous. Senator Cash (Liberal, WA) raised the possibility that “future appeals against ministerial decisions” might go to “a UN judicial body rather than the Australian High Court”.  With respect, no such UN body exists, and such an appeals process would be unconstitutional.  Senator Mason (Liberal, Qld) took an apparently very dim view of economic social and cultural rights, simplistically locating them entirely in the milieu of the Soviet Union, Cuba, and China: ‘We can slaughter people, we can mechanise the slaughter and, in fact, we can make it de rigueur for the state, but it is okay because there is free education.’  Please.

The coalition also wanted to remove Statements of Compatibility from the legislation.  In this, the opposition may have a point, as the process of introducing Statements of Compatibility could descend into farce unless the government takes it seriously: there is the possibility that such Statements will simply comprise self-serving readings of our human rights obligations.  Nevertheless, I am pleased that Statements of Compatibility have remained.  The Statements will require the government to put its view on the human rights compatibility of a bill in public view.  Therefore, it will have to formulate a view, which may lead it to reflect on whether the law is a good idea.  The process should ensure that human rights are taken into account at the beginning of the process of policy formulation, rather than as an afterthought at the end. The existence of such an executive role regarding human rights will not, contrary to some of the opposition’s arguments, somehow usurp the Parliament’s role in the consideration of human rights.

Conclusion

The new federal human rights legislation constitutes the most substantial innovation to date arising from the National Human Rights Consultation Committee and the government’s Human Rights Framework.  Time will tell whether it makes a substantial difference to the protection of human rights in Australia.

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