Peter A Clarke

The Human Rights (Parliamentary Scrutiny) Act 2011 will commence on 4 January 2012.  It passed through Parliament on 25 November 2011.

The Attorney General’s press release provides:

The new Act will also improve parliamentary scrutiny of legislation for consistency with Australia’s human rights obligations through two measures:

• requiring that all new bills and disallowable legislative instruments be accompanied by an assessment of compatibility with human rights, and

• establishing a new Parliamentary Joint Committee on Human Rights.

The Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Act 2011 will also enable the President of the Australian Human Rights Commission to become an ex officio member of the Administrative Review Council to ensure that a human rights perspective is integrated into the discussions of the Council.
“The Act will make positive contributions to the lives of our fellow Australians.  They will sharpen our focus on standards which promote freedom, respect, equality, dignity and a fair go for all”, Mr McClelland said.
FACT SHEET
Review of the definition of ‘human rights’
Human rights are defined as the rights and freedoms in the seven core United Nations treaties to which Australia is a party:
–         International Covenant on Civil and Political Rights
–         International Covenant on Economic, Social and Cultural Rights
–         International Convention on the Elimination of All Forms of Racial Discrimination
–         Convention on the Elimination of All Forms of Discrimination against Women
–         Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
–         Convention on the Rights of the Child
–         Convention on the Rights of Persons with Disabilities
Assessing human rights against Australia’s obligations in these treaties provides a clear and workable framework for government officials and the Parliamentary Joint Committee to engage with human rights.
These treaties are the human rights treaties with the widest acceptance in Australian and international communities.
The Government will refer the definition of ‘human rights’ to the Parliamentary Joint Committee for review 12 months after it tables its first report.
The review will enable the Committee to consider, in view of its experience with the new requirements, whether these treaties provide the most appropriate definition for the development of rights-compatible legislation and policy in Australia.
The Committee will also contribute to the broader review of Australia’s Human Rights Framework scheduled to occur in 2013-14.
The Government will be further considering the definition of human rights as part of the review of Australia’s Human Rights Framework in 2013-14.
Role of the Parliamentary Joint Committee on Human Rights
The Committee’s primary role will be the scrutiny of legislation for compatibility with human rights.
The Government is keen to see the Committee develop this role and its human rights expertise during its early operation.
There is also potential for the proposed Committee to facilitate public dialogue about human rights through a range of mechanisms.
Like other Committees, the new Committee will be able to look to a range of sources to inform itself when examining legislation and carrying out inquiries.  This includes, but is not limited to, Australian and international jurisprudence.
The Government will consider the effectiveness of the Committee’s powers as part of the 2013-14 Review of Australia’s Human Rights Framework.
Statements of Compatibility
Statements of compatibility will require those presenting new legislation and disallowable legislative instruments to demonstrate that they have considered the impact of the Bill on human rights and assessed the extent to which any human rights may be limited.
Those statements will inform the debate by alerting Parliament to the relevant human rights considerations when Parliament comes to consider bills and disallowable legislative instruments.
Statements may justify limitations on rights under the human rights treaties – in certain circumstances – if they are in the interests of other individuals or society more generally.
To that end, statements will evaluate how and why rights are being limited.
The Government considers that it is not necessary to prescribe the content of statements as the purpose of statements and their place in Parliamentary debate is clear.
Statements of compatibility will ordinarily form part of the explanatory memorandum for the Bill, but nevertheless shall be presented to Parliament at the same time as the explanatory memorandum for the Bill.
Review of Australia’s Human Rights Framework in 2013-14
In addition to considering the definition of ‘human rights’,  the Government also will consider the effectiveness of the Committee’s powers and the content and function of statements of compatibility as part of its broader 2013-14 review of Australia’s Human Rights Framework.
By this time, there will be a significant body of Committee work to assess as well as significant experience in the public sector and the Parliament with statements of compatibility.