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All new federal legislation to be assessed for compatibility with human rights

​Federal Parliament has enacted new laws requiring all proposed federal legislation to be assessed for its compatibility with Australia’s human rights obligations. 

The Human Rights (Parliamentary Scrutiny) Act 2011, which commences on 4 January 2012, introduces two primary measures designed to better protect and promote human rights in Australia.

First, all new bills and legislative instruments introduced into Federal Parliament will be accompanied by a “statement of compatibility”, which will identify the extent to which the proposed legislation complies with Australia’s human rights obligations. 

The statement of compatibility will be prepared and presented by the member of Parliament proposing to introduce the bill into either House of Parliament.  Significantly, the statement of compatibility is not binding on any court or tribunal.  The validity, operation or enforcement of any bill which becomes law is not affected by the fact that a statement of compatibility may identify aspects of the bill which are not compatible with human rights.

Secondly, a new Parliamentary Joint Committee on Human Rights will be established.  The Committee will scrutinise both new and existing legislation for human rights-compatibility, and will have the power to inquire into any other human rights matter referred to it by the Attorney-General.  The Committee will report to both Houses of Parliament on all such matters.

A similar regime involving statements of compatibility and parliamentary committee oversight operates in both the ACT and Victoria, as part of the more substantive human rights mechanisms in the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities 2006 (Vic). 

The Federal legislation defines “human rights” as all rights recognised in the seven core United Nations international human rights treaties to which Australia is a party, namely:

  • the International Convention on the Elimination of all Forms of Racial Discrimination;
  • the International Covenant on Economic, Social and Cultural Rights;
  • the International Covenant on Civil and Political Rights;
  • the Convention on the Elimination of All Forms of Discrimination Against Women;
  • the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
  • the Convention on the Rights of the Child; and
  • the Convention on the Rights of Persons with Disabilities.

Mallesons has considerable experience in human rights issues, including in relation to the operation of statements of compatibility and parliamentary scrutiny committees in the ACT and Victoria. 

Further, the Mallesons Human Rights Law Group made a submission to the Senate Legal and Constitutional Affairs Committee’s inquiry into this proposed legislation in November 2010, and to the Federal Government’s National Human Rights Consultation in 2009, which resulted in a recommendation that more be done to protect and promote human rights in Australia.

National Human Rights Action Plan

Separately, the Federal Government has also released an exposure draft of its National Human Rights Action Plan.  The draft Action Plan identifies the range of measures for improving human rights to which the Federal Government has committed to implementing over the coming years, including:

  • reviewing the reservations made by Australia when acceding to human rights treaties; and
  • working towards ratifying the Optional Protocol to the United Nations Convention Against Torture.

The preparation of the draft Action Plan was substantially informed by a Baseline Study completed in consultation with the public, including NGOs, which sought to identify and assess key human rights issues for Australians, and the existing measures available to address those issues.

The Federal Government has asked for feedback and comments on the draft Action Plan by 29 February 2012.  Mallesons can assist if you wish to make a contribution to the Federal Government’s consideration of the draft Action Plan.

​Who does this affect?

All businesses in Australia that may be affected by any proposed Federal legislation in the future.

​What do you need to do?

Be aware of the additional factors that will be explicitly considered by the Federal Government when new laws are being proposed and debated.  Consider whether it would be useful to refer to Australia’s human rights obligations when lobbying the Federal Government or engaging in consultation processes in respect of proposed new legislation.  We can assist should you wish to do so.

Author(s)

  • Jonathan Kelp - Senior Associate | Email
 

 Key contact(s)

 
  • Robert CooperRobert Cooper
    Partner
    T: +61 3 9643 4405
    M: +61 413 708 462
    Email
 

 Local Contact(s)