Look Who’s Talking

The Legislature

The ACT Legislative Assembly is at the centre of the HR Act dialogue model, which is designed to preserve parliamentary supremacy over human rights matters. The Act invests a number of duties and functions on the Assembly, and utilises various mechanisms to facilitate dialogue on human rights both within and with the Legislative Assembly:

  • the compatibility statement by the Attorney-General, which informs the Legislative Assembly that Government bills have been assessed for HR Act consistency before being introduced (s 37);
  • the pre-enactment scrutiny role of the Scrutiny of Bills Committee which reports to the Legislative Assembly on human rights issues raised by Government and private member’s bills (s 38);
  • the express invitation to benchmark the interpretation of rights, including any limits on rights placed by the Legislative Assembly, against international human rights standards (s 31);
  • the obligation to present a declaration of incompatibility of the Supreme Court in the Legislative Assembly  (via the Attorney-General) for consideration if any remedial action is necessary (s32(4) and s33);
  • the requirement for the Attorney-General to table human rights audit reports by the Human Rights Commissioner in the Legislative Assembly (s 41);
  • the requirement for the Attorney-General to conduct mandatory reviews of the HR Act and report to the Legislative Assembly (s 44); and
  • the annual reports obligation, where Government departments and public authorities are accountable to the Legislative Assembly by reporting on the steps taken to implement the HR Act. (Consequential amendments to the Annual Reports (Government Agencies) Act 2004, s 5 and s 9(3).)

First five years (2004-2009)

The one-year stage: The 12-month review noted that it was ‘clear’ that the HR Act was achieving results within the Legislature, and that ‘the Assembly had been engaged in an intense ‘pre-enactment dialogue’ prior to the passing of a Bill.’ It also noted that the Act had brought a ‘new focus and workload’ for the Scrutiny of Bills Committee:

Section 38 [of the HR Act] has brought about a significant change in the task of the Committee. It must now assess clauses in bills from a rights perspective on a much broader basis than is the case under its terms of reference as provided for in a resolution of the Assembly. … A report on a human rights issue is not confined to making a comment that some clause is, or even may be, in conflict with some rights standard. The Committee might report that a bill enhances rights protections. [It] is aware that its reports may be consulted by members of the Assembly for the purposes of debate on a bill. A report may thus provide explanation, and outline different points of view, in a way that will facilitate a debate about rights.

Five-year stage: The five-year review was similarly positive about the impact of the HR Act within the Legislature:

One of the clearest effects of the HRA has been to improve the quality of law-making in the Territory. The development of new laws by the executive has clearly been shaped by the requirement to issue a statement of compatibility for each new bill, and the approach of Government has been influenced by a robust dialogue with the legislature, the Scrutiny Committee and the Human Rights Commissioner.

The report noted that there were signs that the Scrutiny of Bills Committee’s work was being taken seriously, citing examples of Government amendments to legislative proposals in light of the committee’s criticisms. The committee’s concerns with regard to strict liability offences provisions also resulted in the issue being referred for inquiry by the ACT Standing Committee on Legal Affairs, and the recommendation that ACT laws be audited to determine the prevalence of such offences and their appropriateness in each case. That in turn resulted in the Government developing comprehensive guidelines for framing offences, which were published in 2010.

Second five years (2009-2014)

By all accounts, the HR Act’s main influence remains clearest within the Legislature, where there are signs that it has made a genuine cultural difference to the way the Assembly goes about its work. The Act and the standards that it upholds are frequently invoked in parliamentary debates by members across the political divide.

Significantly, and in contrast to comparable human rights scrutiny committees in Victoria and the Commonwealth, the Scrutiny of Bills Committee’s reports are routinely referred to in second reading debates of bills. The committee’s concerns are also often cited as the basis for Government amendments to bills. In 2014 alone, close to 100 Government amendments in relation to 7 bills were moved, ostensibly in response to comments made by the committee. In contrast, Victoria’s Scrutiny of Acts and Regulations Committee has identified only 8 instances over a period of eight years, where its Charter reports had resulted in a house amendment to a bill. While there are positive signs that the Commonwealth’s Parliamentary Joint Committee on Human Rights’s work is being taken into account in the development of legislation, its reports have not to date resulted in any amendments to bills in the course of their passage through the Parliament.

Areas for improvement

The five-year review made various recommendations which concerned strengthening the statement of compatibility requirement in the HR Act. None of these recommendations were accepted by the Government for reasons that ranged from considering a particular change to be unnecessary, to concerns that they would involve the need for additional resources.  The Government has repeated those concerns in the current Review Report.

The Commissioner, however, considers that the current review provides an opportune time to revisit some of these issues.

(i)       Compatibility statements for secondary legislation

Explanatory statements for regulations and other secondary legislation, which the HR Act does not subject to the statement of compatibility requirement, have nevertheless occasionally included human rights analysis. This ad hoc process, while welcome, could be greatly improved if the HR Act were amended to require statements of compatibility for legislative instruments as well as bills.

The present system which exempts secondary legislation from any systematic human rights scrutiny and review reduces the thoroughness of the ACT’s pre-legislative human rights scrutiny regime. As the Commonwealth model has demonstrated, such a model is feasible and also necessary, given the range of amendments which have an impact on human rights that can be promulgated through secondary legislation.

The Government’s 2014 Review Report states that a requirement for statements for secondary legislation would involve a significant increase in resources even if the responsibility was devolved to the agency developing the legislative proposal. But it does not explain why or how this would be the case. If human rights factors were properly taken into account throughout the legislative development process, then the requirement for a statement at the end of that process should not present any undue burden.  Alternatively, consideration could be given to including appropriate human rights analysis in the explanatory statements for secondary legislation, similar to that which is required for bills.

(ii)      Compatibility statements for private members bills

The continued exemption of private member’s bills from the statement of compatibility requirement is undesirable as it creates a two tier system for the human rights scrutiny of proposed legislation. In principle, there is no reason why private member’s bills should be subjected to lower or different standards of scrutiny.  Both Victoria and the Commonwealth have extended the requirement for statements of compatibility to all bills, regardless of whether the proponent is the Government or a private member.

The Government’s 2014 Review Report rejects the proposal on the basis that it is inappropriate for Government to make determinations based on the policy behind private members bills. It does not, however, explain why it would not be feasible for private members to prepare their own statements, similar to the Victorian and Commonwealth models, and/or include appropriate human rights analysis in the accompanying explanatory materials.