23 November

Arts Law comment on the Human Rights (Parliamentary Scrutiny) Act

International human rights law requires Australia to respect, protect and fulfil human rights.  There are currently a number of protections in Australia that maintain certain human rights including constitutional, statutory and common law rights.  However, those protections fall short of enshrining our international obligations in a national human rights act as recommended by the National Human Rights Consultation Committee Report in 2009.  The federal government rejected this key recommendation and instead introduced parliamentary scrutiny legislation to fulfil important commitments announced in the 2010 Human Rights Framework.  

The Human Rights (Parliamentary Scrutiny) Act 2011(Cth) (the Act) commenced on 4 January 2012.  The Act requires all new bills and disallowable legislative instruments to be accompanied by a ‘Statement of Compatibility with human rights’.  Statements must assess compatibility against the seven main United Nations human rights treaties to which Australia is a party; however failure to do so will not render the law invalid. 

The treaties are 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; and
  • Convention on the Rights of Person with Disabilities.

The legislation is welcome as it will improve the visibility of human rights concerns regarding new and existing laws and increase the accountability of the federal government.  However, it does not go nearly far enough to fulfilling Australia’s international obligations nor does it provide any real protection against the enactment of legislation that limits human rights.  

Arts Law notes the following limitations to the Act:

  1. The definition of ‘Human Rights’ in the Act does not include the rights comprised in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).  UNDRIP was endorsed by the Government in 2009 and states in Article 31 that;

Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions…They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

The inclusion of the rights described in this Declaration in the Act’s definition of human rights would have increased the transparency of the effects of new laws on Indigenous cultural heritage, traditional knowledge, and traditional cultural expressions.

  1. The definition of ‘Human Rights’ in the Act also does not take into account the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions which Australia became a party to in 2009.  As the UNESCO convention states in Article 2;

Cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed.

The inclusion of this Convention would have further ensured critical examination of the potential impact of new legislation on the freedom of expression of Australians.

  1. The Parliamentary Scrutiny Committee’s power to inquire into any matter relating to human rights is limited to matters referred to it by the Attorney-General.  If the Committee had been vested with the power to inquire into any matter relating to human rights referred to it by resolution of either House of Parliament, it would have enhanced the independence of the Committee because the matters referred to it would have be representative of a variety of political positions.
  1. The Act is silent as to the form, scope and detail of analysis to be contained in Statements of Compatibility under clauses 8 and 9.  Statements of Compatibility should aim to assist in the development of policy and legislation which accords with the core human rights treaties to which Australia is a signatory, rather than being used as a tool to justify departure from those rights.  In order for parliamentary scrutiny to be as effective as possible the Statement of Compatibility should:

a) set out whether and how a Bill limits human rights;

b) where human rights are limited, demonstrably justify whether and how such limitations are reasonable under law; and

c) be tabled with the Second Reading Speech and Explanatory Memorandum provided for a Bill.

In order for Statements of Compatibility to be effective the public needs to be able to physically access, and consider, these statements prior to the enactment of new legislation.

  1. The Act fails to provide any effective remedies for a failure to provide the Statements of Compatibility.  Subclause 8.5 of the Act states “a failure to comply with this section (statement of compatibility) in relation to a Bill that becomes an Act does not affect the validity, operation or enforcement of the Act or any other provision of a law of the Commonwealth.”  In the Second Reading Speech, the then Attorney-General Robert McClelland stated that the goal of the Act was to increase awareness of the executive in proposing legislation and the parliament in considering legislation of the impact of laws on the rights of citizens.  The effectiveness of the Act in protecting and fulfilling human rights may be limited as there are no legal consequences for failing to comply with the Act.

Arts Law welcomes increased parliamentary scrutiny of new laws. However the Human Rights (Parliamentary Scrutiny) Act 2011does not implement Australia’s international obligations regarding the recognition of human rights nor does the Act provide any real protection against the enactment of legislation that limits human rights.

Arts Law aims to provide targeted, quality advocacy on law and policy reform for the benefit of the creative sector.  Arts Law supports a federal Charter of Human Rights for Australia enshrining a right to freedom of expression, both artistic and cultural, and giving positive legal recognition to the cultural heritage rights of Aboriginal and Torres Strait Islander people.  Arts Law advocates for artists’ rights in alignment with Australia’s international human rights obligations including commitment to economic, social and cultural rights and, in particular, Indigenous cultural and intellectual property rights.

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