Efficacy of scrutiny and review mechanisms

Overlapping parliamentary scrutiny

3.61     Since the establishment of the Human Rights Committee, the overwhelming majority of Bills which have an impact on the traditional rights, freedoms and privileges listed in the Terms of Reference have been subject to at least two separate streams of parliamentary committee review. This section considers the level of overlap, and whether streamlining the functions of the committees may be useful.

3.62     Where no concerns arise about human rights compatibility, or where further information is required before a determination on compatibility can be made, the work of the Human Rights Committee, in practice, appears quite similar to the work of the Scrutiny of Bills Committee. In particular, the reports of each Committee reflect that both Committees commonly write to the Minister seeking additional information or explanation as to why a law that limits rights is justified.^[97]

3.63     However, where there are stronger concerns about the impact of a proposed law on human rights, it seems that only the Human Rights Committee regularly seeks evidence to justify an encroachment, and focuses on the measure as a whole.^[98] A similar approach appears to be reflected in considering legislative instruments.^[99]

3.64     The Scrutiny of Bills Committee, in its own Inquiry into the future role and direction of the Committee, recognised the potential for significant overlap in the work of the Committees.^[100] However, the Committee also noted that there were significant areas of difference. The Scrutiny of Bills Committee does not conduct its scrutiny function by reference to international law, and potentially does not cover many of the economic, social and cultural rights considered by the Human Rights Committee. Similarly, the Human Rights Committee does not usually address matters like administrative law principles that are covered by the Scrutiny of Bills Committee. This can result in the two Committees focusing on very different issues. Additionally, even where the two Committees consider the same right, the scope of the right discussed may vary. For example, in looking at provisions which have retrospective effect, the Human Rights Committee focuses only on retrospective criminal offences. By contrast, the Scrutiny of Bills Committee considers retrospective civil provisions, as well as other matters such as ‘legislation by press release’ in taxation matters.^[101] 

3.65     It may be useful to consider reviewing the scope of the work of the Committees, and the relationship between them. For instance, the Human Rights Committee might focus its attention only on the most significant limitations on a set of identified rights and liberties, while the Scrutiny of Bills Committee and Regulations and Ordinances Committees might continue to undertake a technical review of all Bills and disallowable instruments. Any consideration of the scope of the Committees and their relationship should take into account the range of rights considered by each Committee, and the application of each Committee’s scrutiny principles.

3.66     The United Kingdom’s experience provides an instructive precedent. The Joint Committee on Human Rights (UK Human Rights Committee) was established in 2001.^[102] The UK Human Rights Committee has, since its inception, focused only on Bills which appear to raise ‘significant questions of human rights’.^[103] The legal adviser to the UK Human Rights Committee reviews all Bills at an early stage, and brings those Bills which raise significant concerns to the Committee’s attention.^[104] Significance is determined by reference to various criteria, including

how important is the right affected, how serious is the interference with it, and in the case of qualified rights, how strong is the justification for the interference, how many people are likely to be affected by it, and how vulnerable they are.^[105]

3.67     Since 2006, the UK Human Rights Committee has begun an additional sifting process, to further target its scrutiny. The additional criteria used to determine its work program include whether:

• the European Court of Human Rights or United Kingdom higher courts have recently given a judgment on the issue raised;

• the Bill has attracted broad public or media attention;

• ‘reputable’ stakeholders such as non-governmental organisations have commented on the Bill;

• the Explanatory Notes are incomplete; and

• the Bill raises an issue that has consistently been a concern for the UK Human Rights Committee in the past, but which the Government does not appear to have addressed.^[106]

3.68     Similar criteria adapted for Australia could, for example, be used by the Human Rights Committee. However, any such approach would need to be carefully adapted, given the comparative sizes of the two Parliaments, and the respective workloads of Parliamentarians.

Statements of compatibility and explanatory memoranda

3.69     Since January 2013, the Human Rights Committee has identified over 80 statements of compatibility that did not meet its expectations.^[107] The Scrutiny of Bills Committee, in the same period, asked the relevant Minister to include further information and justification in explanatory memoranda for 78 Bills.^[108]

3.70     The need for explanatory material that sets out adequate justification for encroachments on rights is well documented. In its 2006 report on future approaches to scrutiny, the UK Human Rights Committee noted:

[t]he provision of proper Explanatory Memoranda is absolutely essential to the effective functioning of the [scrutiny process].^[109]

3.71     Such concerns have been echoed in the Australian context:

Deficient [explanatory memoranda] means that committees are required to seek additional information from agencies about the proposed legislation. This delays the scrutiny process and could have been avoided had a sufficient EM been provided. This is not an ideal outcome given the tight timeframes under which committees often operate when reporting to Parliament.^[110]

3.72     In 2004, the Scrutiny of Bills Committee specifically considered the quality of explanatory memoranda. It recommended that an ‘appropriately qualified person’ check that the explanatory memorandum complies with requirements set out in a new Legislation Handbook, which would consolidate material contained in the existing Legislation Handbook, Legislation Circular and the OPC’s Drafting Directions.^[111]

3.73     The Human Rights Committee has also emphasised the need to include, in statements of compatibility, a detailed and evidence-based assessment of proposed provisions that interfere with rights.^[112]

3.74     Statements of compatibility are also required in New Zealand, the UK, ACT and Victoria. In the ACT and New Zealand, the Attorney-General prepares the statement of compatibility. In Victoria and the United Kingdom, as in the Commonwealth, it is the Minister or the sponsor of the Bill who prepares the statement of compatibility.

3.75     The Law Council of Australia (Law Council) submitted that a more centralised approach to preparing statements of compatibility—for example, by an independent statutory body such as the AHRC—should be considered.^[113]

3.76     At the Commonwealth level, the Parliamentary Scrutiny Act was designed to ‘deliver improved policies and laws in the future by encouraging early and ongoing consideration of human rights issues in the policy and law-making process’.^[114] Centralising the preparation of statements of compatibility, however, may reduce the extent to which a culture of human rights permeates among policy makers as a whole.

3.77     Training for policy makers and parliamentarians on human rights and proportionality analyses may be useful. The Law Council submitted that the Attorney-General’s Department should be provided with additional resources to conduct such training.^[115] Other bodies such as the AHRC may also be well placed to conduct such training. The Human Rights Law Centre supported this approach.^[116]

3.78     Additionally, it may be useful to consider stipulating in (primary or delegated) legislation, what must be included in statements of compatibility.^[117] One approach may be to incorporate the Committee’s expectations into pt 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).^[118] The object of such procedures would be to ensure that statements of compatibility and explanatory memoranda provide sufficiently detailed and evidence-based rationales for encroachments on rights to allow the parliamentary scrutiny Committees to complete their review.

Time constraints and parliamentary consideration of Committee reports

3.79     Parliamentary Committees tasked with legislative scrutiny are subject to significant time constraints. Parliamentarians have identified that ‘the main thing that would make parliamentary scrutiny more effective is more time’.^[119] Bills may pass into legislation with little or no consideration of the committees’ reports.^[120] Bills may even be passed into legislation before the Scrutiny of Bills Committee has published its reports. Since 2000, this has occurred in relation to 109 of the Bills considered in the Scrutiny of Bills Committee’s reports. Since its inception, over 50 Bills have been passed before the Human Rights Committee completed its review. The Scrutiny of Bills Committee has indicated that the ‘main difficulty the Committee encounters is when legislation is introduced and passed before the Committee can complete its scrutiny process’.^[121]

3.80     The Scrutiny of Bills Committee, in its own Inquiry into its future role and direction, concluded that minimum timeframes for Committee consideration of legislation were not appropriate, on the basis that its role is not to delay the passage of legislation, but to provide timely reports which alert the Senate to the need for possible further examination of provisions of concern. It also noted that the Scrutiny of Bills Committee retains the discretion to set its own timeframe for considering and reporting on a Bill, while acknowledging that the passage of legislation is not deferred pending the Committee’s views.^[122]

3.81     A number of parliamentarians^[123] and commentators^[124] support the imposition of minimum timeframes for scrutiny Committees to consider Bills.

3.82     As discussed above, where the Senate Standing Committee for Selection of Bills (Selection of Bills Committee) refers a Bill to a legislative or general purpose Committee for review, that Committee must take into account any comments made by the Scrutiny of Bills Committee. While the legislative or general purpose Committee is reviewing the Bill, debate in relation to the Bill is suspended. However, the Selection of Bills Committee has not published any guidance on its criteria for determining which Bills should be referred. One approach to ensure that sufficient time is provided may be to amend the Standing Orders to require all Bills which attract adverse comment by the parliamentary scrutiny Committees (Scrutiny of Bills Committee and Human Rights Committee) to be referred for review by a legislation or general purpose Committee.

3.83     A separate concern is the extent to which Parliament takes into account reports of the Scrutiny of Bills Committee and Human Rights Committee in passing legislation. Speaking about the Human Rights Committee, Professor George Williams noted that ‘there is little or no evidence that [the reports of the Committee] have had a significant impact in preventing or dissuading parliaments from enacting laws that infringe basic democratic rights’.^[125] A review of Bills before the Commonwealth Parliament in the three year period from 2001 to 2003 found that, of the 63 Bills considered to burden human rights, 43 (or approximately 68%) were enacted.^[126]

3.84     In the UK, of 1,006 substantive references to the UK Human Rights Committee’s reports during debate in Parliament, only 16 resulted in the Government offering amendments.^[127] In a further seven instances, the Government issued guidance based on the UK Human Rights Committee’s reports.^[128]

3.85     The effectiveness of the scrutiny process was also queried in the context of the Anti-Terrorist, Crime and Security Act 2001 (UK):

[A]ll 124 clauses of the ATCSA 2001 were discussed in sixteen hours, which resulted in no amendments to the Government’s proposal. If parliamentary debate is unable to effect changes to potential legislation that breaches human rights standards, its effectiveness must be questioned. One possibility for the complacency of the Commons might be that the s 19 Declaration of Compatibility gives the impression that the Act has already been ‘proofed’ for human rights compliance. Thus it may serve as a ‘legitimizing cloak’ which detracts from the quality of debate.^[129]

3.86     However, determining the efficacy of scrutiny Committees solely, or even primarily, by reference to the number of amendments resulting from consideration of Committee reports is not necessarily appropriate. As noted by political scientists Meghan Benton and Meg Russell, ‘take-up by government of recommendations is only one form of Committee influence and arguably not even the most important’.^[130] Influencing policy debate, improving transparency within the bureaucracy, holding the government to account by scrutiny and questioning, and creating incentives to draft or amend legislation to avoid negative comments from the Committee, are all examples of other important functions of scrutiny Committees.

3.87     Since 2005, the UK Human Rights Committee has adopted the practice of recommending amendments to Bills in its reports to give effect to its recommendations, and encourages its members to table these amendments before both Houses of Parliament.^[131] This has contributed to a dramatic increase in parliamentary consideration of its reports, increasing from 23 substantive references in the 2001–2005 Parliament to 1,006 substantive references in the 2005–2010 Parliament.^[132]

3.88     A more radical suggestion to facilitate greater parliamentary consideration of Committee reports is, in effect, to incorporate the scrutiny process into a Bill’s passage through Parliament, with scrutiny Committees empowered to amend the text of a Bill. These amendments would be subject to rejection in a vote before the Parliament.^[133] However, this has the potential to result in more politically partisan scrutiny Committees, subject to greater executive control.^[134]

3.89     Alternatively, consideration might be given to providing that the Senate ‘cannot deal with a Bill until the Committee has presented a report which in itself has been dealt with by the parliament’.^[135] A number of stakeholders supported this approach.^[136] For example, the Public Interest Advocacy Centre (PIAC) submitted that, outside of a ‘clearly defined emergency’, a Bill should not be passed unless the relevant parliamentary scrutiny Committee has considered the Bill, the relevant Minister has responded to questions raised, and the parliament has had the opportunity to read and debate the recommendations made in any report of such Committees.^[137]

3.90     It may be constructive to consider reviewing the operations of the Committees and Senate procedures to ensure that the relevant parliamentary scrutiny bodies have sufficient time to conduct their reviews, and to facilitate adequate consideration of scrutiny reports during parliamentary debates. While political interests may, in some circumstances, result in a Bill being passed without adequate time for review, or consideration by the Parliament, such procedures may assist in creating a rights-minded culture, and facilitate more informed decision-making by the legislature.

3.91     A number of submissions to the Scrutiny of Bills Committee’s Inquiry into its future role and direction also noted that the Scrutiny of Bills Committee should have access to adequate resources to complete its scrutiny task.^[138] The Law Council submitted to this Inquiry that the Human Rights Committee should be better resourced.^[139] The need for specialist assistance for the Intelligence Committee was also raised in consultations during this Inquiry. In particular, it was suggested that the Intelligence Committee may benefit from specialist intelligence assistance provided by seconding members of the intelligence community to work with the Committee.

Review bodies

3.92     Some stakeholders raised questions about the capacity of the INSLM to conduct comprehensive and transparent reviews of counter-terrorism and national security laws. PIAC, for example, expressed concern about scrutiny being ‘left to a body that only recently was entirely defunded by the Government, the position only being restored when the Government sought to pass a number of controversial counter-terror laws’.^[140] The National Association of Community Legal Centres stated that ongoing support and funding for the INSLM is required.^[141]

3.93     The INSLM noted, in its 2014 Annual report, that there has been no Government response to any of the INSLM’s recommendations.^[142] Since this statement, while the INSLM has commenced a number of inquiries, these are still ongoing. The Law Council submitted that this highlighted a need for the Independent National Security Legislation Monitor Act 2010 (Cth) to be strengthened, for example, by requiring the Government to respond to the INSLM’s recommendations within certain timeframes.^[143]

3.94     The Law Council also noted reductions in the budget for the Australian Human Rights Commission, and the lack of government response to a number of its reports and publications. It submitted that the government should be required to table a response to any report on complaints within six months of receiving the report.^[144]