Inquiry into the future direction and role of the Senate Scrutiny of Bills Committee (2010)
Legal
Inquiry into the future direction and role of the Senate Scrutiny of Bills
Committee
Australian Human Rights Commission
Submission to the Senate Scrutiny of Bills Committee
19 March 2010
-
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- 1 Introduction
- 2 Summary
- 3 Recommendations
- 4 The mandate and operation of the Senate Scrutiny of Bills Committee
- 5 How could enhanced parliamentary scrutiny of human rights be achieved?
- 6 How do parliamentary human rights committees operate in other jurisdictions?
1 Introduction
-
The Australian Human Rights Commission (the Commission) makes this
submission to the Senate Scrutiny of Bills Committee regarding its Inquiry into
the future direction and role of the Senate Scrutiny of Bills Committee. -
In this submission, the Commission specifically addresses Terms of Reference
1(a), 1(c) and 2, regarding:1(a) whether its powers, processes and
terms of reference remain appropriate;1(c) what, if any, additional role the committee should undertake in
relation to human rights obligations applying to the Commonwealth;(2) ... the role, powers and practices of similar committees in other
jurisdictions -
The Commission discussed the role of parliamentary committees in protecting
and promoting human rights in some detail in its submission to the National
Human Rights
Consultation.[1] This submission draws on that earlier work.
2 Summary
-
Pre-legislative scrutiny for compliance with Australia’s international
human rights obligations is one of the building blocks of a good system of human
rights protection. It is an important means of reducing the risk that
legislation breaches fundamental human rights. -
Pre-legislative human rights scrutiny should require Members of Parliament
to consider how legislation may affect human rights before the proposed
legislation is put to a vote. The human rights implications of any proposed
measure should be clearly identified. They could then be debated openly in
Parliament. -
The Senate Scrutiny of Bills Committee performs an important pre-legislative
scrutiny role in ensuring that proposed legislation does not violate certain
minimum standards for the protection of personal rights and liberties. The
current Inquiry addresses whether those minimum standards, and the
Committee’s powers in respect of those minimum standards, continue to be
appropriate in modern Australian society and whether the Committee should
undertake an additional role in relation to the human rights obligations
applying to the Commonwealth. -
The Commission considers that the Senate Scrutiny of Bills Committee under
its current mandate is not able to adequately scrutinise proposed legislation
for the Commonwealth’s compliance with its human rights obligations. The
Commission is particularly concerned about the lack of clarity as to what
‘rights and liberties’ should be examined by the Committee. -
The Commission’s preferred option for ensuring adequate
pre-legislative human rights scrutiny is the establishment of a specialist
parliamentary human rights committee. -
However, if a specialist committee is not established, the Commission
recommends that the role of the Senate Scrutiny of Bills Committee be expanded
so that it is required to scrutinise compliance of proposed legislation with all
of the human rights set out in the international human rights treaties to which
Australia is a party. -
The Commission further recommends that the Senate Scrutiny of Bills
Committee be adequately resourced to undertake this task.
3 Recommendations
- The Australian Human Rights Commission
recommends:
Recommendation 1: A parliamentary Human Rights
Committee should be established to review the compatibility of proposed
legislation with Australia’s human rights obligations, as set out in the
international human rights treaties to which Australia is a party.
Recommendation 2: If a specialist parliamentary Human Rights Committee
is not established, the terms of reference of the Senate Scrutiny of Bills
Committee should be amended to require examination of the compliance of proposed
legislation with human rights, as set out in the international human rights
treaties to which Australia is a party.
Recommendation 3: If the human rights scrutiny role of the Senate
Scrutiny of Bills Committee is enhanced, the Committee should be adequately
resourced to fulfil this role.
4 The
mandate and operation of the Senate Scrutiny of Bills Committee
-
The general terms of reference of the Senate Scrutiny of Bills Committee
require the Committee to consider whether bills that come before the Parliament
‘trespass unduly on personal rights and
liberties’.[2] This requirement
is also contained in the relevant Senate Standing
Order.[3] The Senate Scrutiny of Bills
Committee has played a valuable role in monitoring whether proposed legislation
unduly infringes on rights and liberties. -
However, the Committee is given no guidance on which rights and liberties it
should consider, or how they should determine when those rights can be
justifiably limited. -
When the Committee determines whether legislation trespasses unduly on
personal rights and liberties they generally consider whether the legislation
might:-
have a retrospective and adverse effect on those to whom it applies;
-
not only operate retrospectively, but its proposer (invariably the
Government) might treat it as law before it is enacted – usually from the
date the intention to legislate is made public; this is often referred to as
legislation by press release; -
abrogate the common law right people have to avoid incriminating themselves
and to remain silent when questioned about an offence in which they were
allegedly involved; -
reverse the common law onus of proof and require people to prove their
innocence when criminal proceedings are taken against them; -
impose strict liability on people when making a particular act or omission
an offence; -
give authorities the power of search and seizure without requiring them to
obtain a judicial warrant prior to exercising that power; -
abrogate legal professional privilege; or
-
directly affect fundamental entitlements such as the right to
vote.[4]
-
-
The Commission considers this to be a narrow conception of personal rights
and liberties. According to Senator Andrew Murray, this focus only evolved from
‘a combination of history and
precedent’.[5] -
The Commission is aware of a range of concerns about the mandate and
operation of the Senate Scrutiny of Bills Committee. The Commission shares the
concerns heard by the National Human Rights Consultation about:the
capacity of these existing committees to engage in comprehensive human rights
scrutiny. It was said there is a lack of formal guidance about which rights and
liberties the committees should consider, how the committees should determine
whether those rights and liberties have been justifiably limited, and how or
whether to assess compliance with international human rights standards. Concern
was also expressed about the Scrutiny of Bills Committee’s lack of
‘teeth’, the limited time frame available to it for scrutinising
Bills, and the fact that the committee’s response is not always available
before the parliamentary
debate.[6] -
The limitations of the Senate Scrutiny of Bills Committee are also outlined
by Simon Evans and Carolyn Evans, who generally argue that human rights scrutiny
of legislation ‘is ad hoc and unsystematic and as a result is highly
variable in its scope and
intensity’.[7] -
Evans and Evans found that the Senate Scrutiny of Bills Committee comments
on one-half to two-thirds of the International Covenant on Civil and
Political Rights issues raised by legislative
proposals.[8] They have also concluded
that the Committee’s ‘approach is narrowly focused on civil
liberties issues and its coverage is far from
complete’.[9] -
In summary, Evans and Evans argue that while scrutiny committees can act
expeditiously to provide an initial assessment of some rights impacts of
bills:-
the scrutiny committees tend to restrict their focus to civil liberty
issues -
the scrutiny committees rarely express a concluded view on bills or a clear
position as to whether a bill trespasses unduly on rights and freedoms -
the impact of scrutiny can be hard to
identify.[10]
-
-
The Commission also notes that the extent to which the Senate Scrutiny of
Bills Committee is resourced has an impact on the scope of its work. This issue
is discussed further below at paragraphs 45 and 46.
5 How
could enhanced parliamentary scrutiny of human rights be achieved?
5.1 Establishment
of a dedicated parliamentary human rights committee
-
The Commission’s submission to the National Human Rights Consultation
noted that there are a number of parliamentary committees in Australia with
special areas of expertise. However, there is no specialist committee
focused on examining the human rights implications of proposed
laws.[11] The Commission’s
preferred approach is the establishment of a parliamentary committee dedicated
to the examination of bills for their compatibility with human rights. -
The National Human Rights Consultation report ultimately recommended the
establishment of a Joint Committee on Human Rights:Recommendation
7: The Committee recommends that a Joint Committee on Human Rights be
established to review all Bills and relevant legislative instruments for
compliance with the interim list of rights, and, later, the definitive list of
Australia’s human rights
obligations.[12] -
The Commission’s view is that a parliamentary Human Rights Committee
(such as the Joint Committee on Human Rights, as recommended in the National
Human Rights Consultation report) should be permanent and dedicated to
conducting human rights scrutiny. This would produce a better result than simply
expanding the role of existing legislative scrutiny committees, because it would
enable the Committee to build special expertise in analysing human rights
issues.[13] -
According to the Allen Consulting report commissioned by the National Human
Rights Consultation, a specialist human rights committee would be a low-cost
option, its transition and ongoing costs would be moderate, and it could be
reasonably quickly
established.[14] -
Recommendation 1: A parliamentary Human Rights Committee should be
established to review the compatibility of proposed legislation with
Australia’s human rights obligations, as set out in the international
human rights treaties to which Australia is a party. -
The Commission submits that a parliamentary Human Rights Committee
should:-
have broad functions
-
be adequately resourced
-
accompany the adoption of a national Human Rights
Act.[15]
-
-
The Commission recognises that if a dedicated parliamentary human rights
committee is established, the Senate Scrutiny of Bills Committee could continue
to play an important role in identifying bills which raise human rights issues.
The Committee could either seek the advice of the human rights committee, or
refer legislation to the human rights committee for more intensive
consideration.
(a) A parliamentary Human
Rights Committee should have broad functions
-
The parliamentary Human Rights Committee should consider each bill
introduced into Parliament and inquire into whether the bill is consistent with
the Human Rights Act. -
A Human Rights Act would guide the parliamentary committee on the rights
that it should consider when conducting these functions. It would also provide
guidance on how to assess whether a limitation upon a right could be
justified. -
The Committee should report its findings to Parliament before Parliament is
due to vote on the bill in question. -
The parliamentary Human Rights Committee could also inquire into any
questions referred to it by Parliament. -
A parliamentary Human Rights Committee could adopt broad terms of reference
similar to those used in the UK, which enable the UK Joint Committee on Human
Rights (JCHR) to consider ‘matters relating to human rights in the United
Kingdom (but excluding consideration of individual
cases)’.[16] The JCHR undertakes a wide range of other functions including:-
examining existing laws on an ad hoc basis
-
examining pre-legislative documents (for example, Green Papers)
-
monitoring implementation of the human rights legislation
-
monitoring the work of human rights commissions
-
monitoring the government’s human rights
policy.[17]
-
(b) A parliamentary Human
Rights Committee should be adequately resourced
- The Committee should be provided with adequate resources and time to be able
to properly assess the human rights implications of proposed legislation. The
Commission acknowledges that the demands and complexities of legislative
programs can be difficult to manage. However, it is important that every effort
be made to ensure that all aspects of pre-legislative scrutiny are conducted
appropriately.
(c) A parliamentary Human
Rights Committee should accompany the adoption of a national Human Rights
Act
-
The Commission acknowledges the view that human rights protections in
Australia could be improved by strengthening parliamentary committees, without a
Human Rights Act. -
However, the Commission believes that parliamentary committees alone cannot
ensure comprehensive human rights protection. -
A Human Rights Act would provide guidance to the parliamentary committee as
to what rights it should consider, and a framework for assessing proposed
limitations upon rights. -
Further, improving the way human rights are considered in the legislative
process is only one of many reforms required to develop a culture of respect for
human rights in government. All levels of government, including government
agencies and other public authorities, need to consider human rights in
decision-making. A Human Rights Act is a comprehensive way of ensuring that this
occurs.
5.2 Improving the
existing parliamentary committee system
- If a dedicated parliamentary Human Rights Committee is not established, the
Commission considers that enhancing the mandate and role of the Senate Scrutiny
of Bills Committee would improve pre-legislative human rights scrutiny. This
would be achieved by:- expanding the range of rights that the Committee should consider
- providing adequate resources for an enhanced scrutiny
role.
(a) Expanding the range of rights that the Committee
should consider
- The report of the National Human Rights Consultation observed that improving
the existing parliament committee system would:involve amending the
terms of reference of the Senate Standing Committee on the Scrutiny of Bills and
the Senate Standing Committee on Regulations and Ordinances in order to define
the personal rights and liberties against which the committees must scrutinise
federal laws.[18] - Rev Prof Michael Tate AO, in his submission to the National Consultation,
argued that the terms of reference of the Senate Scrutiny of Bills Committee
should be clarified to:indicate that it encompasses personal
rights and liberties whether recognised or expressed under the Australian
constitution, in the Common Law, in Statutes of Parliament or in Treaties
ratified by the Government of Australia and incorporated into
law.[19] -
The Commission agrees that the terms of reference of the Senate Scrutiny of
Bills Committee should be clarified. -
The capacity of the Senate Scrutiny of Bills Committee to adequately
scrutinise proposed legislation for compliance with Australia’s human
rights obligations would be enhanced if the term ‘rights and
liberties’ was replaced with the term ‘human rights’, clearly
defined. The Commission agrees with Evans and Evans that ‘terms of
reference that identify rights more explicitly would link the scrutiny process
more explicitly to the worldwide jurisprudence on civil and political rights and
provide more structure and robustness to the identification of rights issues and
analysis of whether limitations on rights could be
justified’.[20] -
The term ‘human rights’ should include those rights set out in
the major international human rights treaties to which Australia is a party,
namely the:-
International Convention on the Elimination of All Forms of Racial
Discrimination -
International Covenant on Economic, Social and Cultural Rights
-
International Covenant on Civil and Political Rights
-
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
-
International Labor Organisation Treaty 111.
-
-
Recommendation 2: If a specialist parliamentary Human Rights
Committee is not established, the terms of reference of the Senate Scrutiny of
Bills Committee should be amended to require examination of the compliance of
proposed legislation with human rights, as set out in the international human
rights treaties to which Australia is a party.
(b) Providing adequate resources for an enhanced
scrutiny role
-
The Commission considers that if the Senate
Scrutiny of Bills Committee is to adequately scrutinise legislation for
compatibility with international human rights standards it should be adequately
resourced to undertake this role. -
The Commission agrees with Simon Evans’
conclusion that:The Committees need resources to make scrutiny
effective: a guarantee of adequate time to review and seek responses from
government before legislation comes on for debate; research and specialist
advisory capacity; and members committed to the task of scrutiny
...[21] -
Recommendation 3: If the human rights scrutiny role of the Senate
Scrutiny of Bills Committee is enhanced, the Committee should be adequately
resourced to fulfil this role.
6 How do parliamentary
human rights committees operate in other jurisdictions?
-
In other jurisdictions, parliamentary human rights committees have
effectively scrutinised the human rights compliance of proposed legislation.
They have made a positive contribution to parliamentary consideration of the
impact of law on fundamental human rights. The Commission considers that in
particular there is much to learn from the operation of the JCHR in the United
Kingdom. -
The JCHR was established in 2001, and is made up of twelve members each of
whom must be a member of either the House of Commons and the House of
Lords. -
As mentioned above, the Terms of Reference of the JCHR are to consider:
-
(a) matters relating to human rights in the United Kingdom (but excluding
consideration of individual cases); -
(b) proposals for remedial orders, draft remedial orders and remedial orders
made under section 10 of and laid under Schedule 2 to the Human Rights Act 1998;
and -
(c) in respect of draft remedial orders and remedial orders, whether the
special attention of the House should be drawn to them on any of the grounds
specified in Standing Order 73 (Joint Committee on Statutory
Instruments).[22]
-
-
The JCHR conducted a review of its operations in 2006 and as a result has
moved to a broader human rights dialogue which involves all facets of the
government and the wider community. It is scrutinising fewer bills that
previously, holding more thematic inquiries and reporting on proposed laws prior
to their introduction into
Parliament.[23] It is at this stage
that the JCHR has been able to usefully suggest amendments. -
The model of the JCHR has been recommended by the Council of Europe for
other member states.[24] -
Murray Hunt, the legal advisor to the JCHR, has outlined the valuable role
of the JCHR in allowing some members of the legislature to develop expertise on
human rights matters, particularly since debate amongst politicians is important
when undertaking the balancing exercise of determining whether the interference
of a law with a right is
justified.[25] -
The Commission believes that establishing a dedicated parliamentary Human
Rights Committee with similarly broad functions would enhance the
Parliament’s capacity to ensure the protection of fundamental human rights
within Australia.
[1] Australian Human Rights
Commission, Submission to the National Human Rights Consultation (June
2009), paras. 27, 146-8, 243, 342, 348-64, and Recommendation 13. At http://www.humanrights.gov.au/legal/submissions/2009/200906_NHRC_complete.pdf (viewed 15 March 2010).
[2] Senate
Scrutiny of Bills Committee, Terms of Reference, at http://www.aph.gov.au/senate/committee/scrutiny/cominfo.htm (viewed 11 March 2010).
[3] Senate
Table Office, Standing Orders and other Orders of the Senate (2006),
Standing Order 24, pp 21 – 2. At http://www.aph.gov.au/senate/pubs/standing_orders/standingorders.pdf (viewed 11 March 2010).
[4] Senate
Scrutiny of Bills Committee, The Work of the Committee during the
41st Parliament November 2004 – October 2007 (2008), p 15. At
http://www.aph.gov.au/senate/committee/scrutiny/work41/report.pdf (viewed 11
March 2010).
[5] Senator A. Murray, Parliamentary Committees and the Protection of Rights: a Partial
Evaluation, (Paper for the International Conference on Legislatures and the
Protection of Human Rights, Melbourne, 20-21 July 2006) p 6. At http://cccs.law.unimelb.edu.au/index.cfm?objectId=9E065F87-1422-207C-BAC23913D7DB519D (viewed 15 March 2010).
[6] Commonwealth of Australia, National Human Rights Consultation Report, September 2009, p
169.
[7] S. Evans and C. Evans,
'Australian parliaments and the protection of human rights' (2007) 47 Papers
on Parliament 17, 25.
[8] S.
Evans and C. Evans, note 7, p 26.
[9] S. Evans and C. Evans, note 7,
p 26.
[10] S. Evans and C. Evans,
note 7, p 28.
[11] Australian
Human Rights Commission, note 1,
para 147.
[12] Commonwealth of
Australia, note 6, p 175.
[13] Australian Human Rights Commission, note 1, para
350.
[14] Commonwealth of
Australia, note 6, p 173.
[15] Australian Human Rights Commission, note 1, paras
348-62.
[16] See, for example,
Parliament of the United Kingdom of Great Britain, Joint Committee on Human
Rights. At http://www.parliament.uk/parliamentary_committees/joint_committee_on_human_rights/jchrabout.cfm (viewed 2 June 2009).
[17] UK
Department for Constitutional Affairs, Review of the Implementation of the
Human Rights Act (2006), p
21.
[18] Commonwealth of
Australia, note 6, p 171.
[19] M. Tate, Submission to the National Human Rights Consultation, available
at http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Publicsubmissions_SubmissionstotheNationalHumanRightsConsultation (viewed 11 March 2010).
[20] C.
Evans and S. Evans, The effectiveness of Australian parliaments in the
protection of rights (Paper for the Legislatures and the Protection of Human
Rights Conference, Melbourne, 20-21 July, 2006), p 6. At http://cccs.law.unimelb.edu.au/go/research-and-publications/legislatures-and-human-rights-project/international-conference/conference-papers-and-presentations/index.cfm (viewed 15 March 2010).
[21] S.
Evans, Submission to the National Human Rights Consultation, at http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Publicsubmissions_SubmissionstotheNationalHumanRightsConsultation (viewed 11 March 2010).
[22] Parliament of the United Kingdom of Great Britain, Joint Committee on Human
Rights, http://www.parliament.uk/parliamentary_committees/joint_committee_on_human_rights/jchrabout.cfm (viewed 11 March 2010).
[23] Joint Committee on Human Rights, 23rd Report of Session
2005-06: The Committee’s Future Working Practices, p3-4. At http://www.parliament.the-stationery-office.com/pa/jt200506/jtselect/jtrights/239/239.pdf (viewed 15 March 2010).
[24] The
Committee on Legal Affairs and Human Rights, Parliamentary Assembly, Council of
Europe, Parliamentary scrutiny of the standards of the European Convention of
Human Rights, October 2009. At http://assembly.coe.int/Main.asp?link=/CommitteeDocs/ComDocMenuJurEN.htm (viewed 16 March 2010).
[25] M.
Hunt, The UK Human Rights Act as a ‘parliamentary model’ of
rights protection: lessons for Australia (Paper presented to Australian
Human Rights Commission, 17 February 2009). At http://www.humanrights.gov.au/letstalkaboutrights/events/Hunt_2009.html (viewed 15 March 2010).