Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights
(Parliamentary Scrutiny) (Consequential Provisions) Bill 2010

Australian Human Rights Commission Submission to the Senate Legal and
Constitutional Affairs Committee

7 July 2010

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1
Introduction

1. The Australian Human Rights Commission (the Commission) makes this
   submission to the Senate Legal and Constitutional Affairs Committee in its
   Inquiry into the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 (the bills).
2. The Commission is established by the Australian Human Rights Commission
   Act 1986 (Cth) and is Australia’s national human rights institution.
3. The Commission supports the passage of the bills.
4. The Commission considers that the proposed Joint Parliamentary Committee
   will form an important mechanism at the parliamentary level to ensure that the
   human rights impact of legislation and delegated instruments are fully
   considered as part of the policy development process.
5. The Commission hopes that over time the Committee’s operation will
   contribute to broad acceptance and understanding of human rights in Australia,
   and that its role will be seen as an accepted and expected level of scrutiny for
   all proposed legislation.
6. The Commission makes 4 recommendations intended to ensure the most
   effective operation of the Committee as a human rights scrutiny body, and to
   better address consequential matters that arise from the bills. We note that
   some of the matters addressed in our recommendations could be addressed through
   the practical operation of the Committee once established, whereas others could
   be most effectively addressed in the legislation itself.
7. The Commission would be willing to expand upon the points raised in this
   submission at any public hearing of the committee into the bills.

2 Functions of the committee

8. The Commission notes the functions of the Committee as set out in section 7
   of the Human Rights (Parliamentary Scrutiny) Bill 2010. We support the
   Committee having a scrutiny role in relation to future legislation (section
   7(a)) as well as existing legislation (section 7(b)). We also support the
   Committee being able to conduct inquiries into other matters relating to human
   rights upon referral by the Attorney-General (section 7(c)), and note that a
   referral by a Minister is consistent with the practices of other joint
   parliamentary committees.
9. Recommendation 1: The Commission recommends that the functions of the
   Committee be expanded to include an ability to initiate and conduct inquiries
   regarding the issues raised in the findings of United Nations treaty bodies
   (such as concluding observations) and special procedures of the UN Human Rights
   Council (such as reports of special rapporteurs, working groups and under the
   Universal Periodic Review process). Such a function should be able to be
   self-initiated by the Committee.
10. Australia appears before each UN human rights treaty committee on a periodic
    basis. Those UN committees provide recommendations on how Australia’s
    human rights performance can be improved, including recommendations about
    legislative change For most treaties, for example in the case of the Human
    Rights Committee and Committee on Economic, Social and Cultural Rights, this is
    every 5 years. Such an additional function would, therefore, not be onerous.
11. An additional function of this nature would enable the Joint Committee to
    more efficiently address a range of human rights concerns that may exist across
    a number of pieces of legislation in a holistic and coordinated matter. It would
    also ensure a clearer link between international scrutiny and domestic
    implementation of our human rights obligations.
12. The Commission notes that the Australian Human Rights Framework commits the
    Government to develop and implement a National Action Plan on Human Rights. In
    the future, a broad monitoring role on the National Action Plan would also be an
    appropriate activity for the Joint
    Committee.

3 Definition of human rights

13. The Commission considers that there should be consistency between the
    definition of human rights for the purposes of the Joint Committee and for the
    purposes of the Commission’s mandate under the Australian Human Rights
    Commission Act 1986. This will entail amendments to the definition of human
    rights in the current bills, and the definition of human rights in the Australian Human Rights Commission Act.

Amendments to the definition in the
bills

14. The Commission notes the definition of human rights in section 3(1) of
    the Human Rights (Parliamentary Scrutiny) Bill 2010. The Commission
    supports the Committee’s role covering the seven human rights treaties
    that are listed in section 3(1) and to which Australia is a party. However, the
    Commission also recommends three additions to the jurisdiction of the
    Committee.
15. Firstly, The Commission notes that the Australian Human Rights Commission
    Act 1986 empowers the Commission to investigate complaints and to report to
    Parliament on breaches of human rights in relation to ILO Convention 111 and the
    UN Declaration on Religion and Belief. Given that people in Australia have an
    avenue to pursue a remedy through the Commission where their rights are breached
    under these instruments, it would be logical for government to ensure processes
    to assess compatibility with these instruments in order to avoid infringements
    of people’s rights in the first place.
16. Secondly, while the UN Declaration on the Rights of Indigenous Peoples does
    not create binding legal obligations, it does provide a comprehensive guide to
    assist in protecting the rights of Indigenous peoples. The rights in the
    Declaration are covered in the seven instruments listed and under which
    Australia does have binding legal obligations. Including the Declaration in the
    definition of human rights would explicitly acknowledge this connection and
    ensure that the rights of Indigenous peoples are explicitly considered in the
    development of statements of compatibility and by the Joint Committee. It would
    also give meaning to Australia’s formal position that it supports the
    Declaration.
17. Recommendation 2: The Commission recommends that the following
    instruments be included in the definition of human rights in the bills:
    • International Labour Organisation Convention 111 concerning
      Discrimination in Respect of Employment and Occupation
    • UN Declaration on the elimination of Intolerance and Discrimination Based
      on Religion and Belief
    • UN Declaration on the Rights of Indigenous
      Peoples.

Amendments to the definition in the Australian
Human Rights Commission Act 1986

18. The Commission notes that the first key principle of the Australian Human
    Rights Framework is based on reaffirming our ‘commitment to promoting
    awareness and understanding of human rights in the Australian community and
    respecting the seven core United Nations human rights treaties to which
    Australia is a party.’^[1] The
    absence of some of these core treaties from the mandate of the Australian Human
    Rights Commission is a longstanding concern and is inconsistent with this
    commitment. It should be addressed through this legislative process in order to
    ensure that the Commission’s work can fully reflect the purposes of the
    Australian Human Rights Framework.
19. Furthermore, for the reasons stated above, there should be consistency
    between the definitions of human
    rights.^[2]
20. Recommendation 3: The Commission recommends that the Human Rights
    (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 include
    amendments to the Australian Human Rights Commission Act 1986 to include
    the following instruments within the definition of human rights for the purposes
    of that Act:
    • International Covenant on Economic, Social and Cultural Rights;
    • Convention Against Torture and Other Cruel, Inhuman or Degrading
      treatment or Punishment; and
    • UN Declaration on the Rights of Indigenous
      Peoples.

4 Operational matters

21. The Commission also makes the following brief comments on administrative and
    technical matters relating to the bills. These are matters of implementation,
    once the bills are passed, rather than requiring amendment to the
    legislation.
22. The Commission believes that the Committee will be best able to execute its
    complex role with the assistance of independent legal advice. This will require
    adequate resourcing of the committee to ensure such advice as required. This is
    a common practice for committees of this nature. It is also a common feature of
    parliamentary scrutiny committees on human rights in other jurisdictions (such
    as in Victoria and in the United Kingdom).
23. The Commission notes that section 8(3) of the bill states that “a
    statement of compatibility must include an assessment of whether the Bill is
    compatible with human rights”. The Commission reads this as requiring a
    narrative assessment of whether a bill complies with human rights, as well as
    reasons and justifications for why any limitations on rights are included in
    proposed legislation.
24. The Commission also notes that ordinary principles of interpretation of
    human rights would include international jurisprudence of UN human rights treaty
    committees, general comments of the treaty committees and international
    customary law.
25. The Commission notes that the Human Rights Law Resource Centre’s
    submission to this inquiry provides useful elaboration on the operational
    considerations in the preparation of statements of compatibility and in the
    interpretation of human rights.
26. Recommendation 4: Bearing in mind the three above recommendations, the
    Commission recommends that the bills be passed.

5 Recommendations

The following recommendations are included at the relevant section of the
submission above.

Recommendation 1: The Commission recommends that the functions of the
Committee be expanded to include an ability to initiate and conduct inquiries
regarding the issues raised in the findings of United Nations treaty bodies
(such as concluding observations) and special procedures of the UN Human Rights
Council (such as reports of special rapporteurs, working groups and under the
Universal Periodic Review process).

Recommendation 2: The Commission recommends that the following
instruments be included in the definition of human rights in the bills:

• International Labour Organisation Convention 111 concerning Discrimination
  in Respect of Employment and Occupation
• UN Declaration on the elimination of Intolerance and Discrimination Based on
  Religion and Belief
• UN Declaration on the Rights of Indigenous
  Peoples.

Recommendation 3: The Commission recommends that the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 include amendments to the Australian Human Rights Commission Act 1986 to include the following instruments within the definition of human rights for
the purposes of that Act:

• International Covenant on Economic, Social and Cultural Rights;
• Convention Against Torture and Other Cruel, Inhuman or Degrading treatment
  or Punishment; and
• UN Declaration on the Rights of Indigenous
  Peoples.

Recommendation 4: Bearing in mind the three above
recommendations, the Commission recommends that the bills be passed.

^[1] Attorney-General, Australian
Human Rights Framework, p3.

^[2] See also the Commission’s submission to the National Human Rights
Consultation, which also called for these instruments to be scheduled to the
AHRC Act. Available online at: http://humanrights.gov.au/legal/submissions/2009/200906_NHRC.html.