Policy development and legislative drafting

3.9        Policy is usually developed by government departments. The Office of Parliamentary Counsel (OPC) drafts legislation on instructions provided by the government department with policy responsibility. Policy development and legislative drafting are not undertaken in a rights vacuum. Guidance on developing rights-compatible legislation is provided in the Legislation Handbook and Legislative Instruments Handbook,^[5] in drafting directions prepared by the OPC,^[6] and other guidance documents.^[7]

Drafting and policy development

3.10     The Legislation Handbook published by the Department of Prime Minister and Cabinet states that the Attorney-General’s Department should be consulted on legislative proposals which may be ‘inconsistent with or contrary to an international instrument relating to human rights,’ in particular the International Covenant on Civil and Political Rights (ICCPR).^[8]

3.11     The drafting directions prepared by the OPC specifically alert policy makers to the types of provisions that have drawn adverse comment from the Senate Standing Committee on the Scrutiny of Bills (Scrutiny of Bills Committee).^[9]

3.12     The Attorney-General’s Department has published a number of guidance documents for policy makers about human rights issues.^[10] Guidance sheets are available on a range of issues including, fair trial and fair hearing rights, the presumption of innocence, retrospective criminal laws, and freedom of movement.^[11] The Attorney-General’s Department also provides guidance on ‘permissible limitations’ on rights included in the ICCPR.^[12] This is based on the Siracusa Principles,^[13] which broadly invite an analysis of whether the limitation is prescribed by law, in pursuit of a legitimate objective, rationally connected to its stated objective, and proportionate to the achievement of the objective. The guidance sets out useful questions to ask in conducting this analysis.

3.13     The Attorney-General’s Department also provides guidance and performs a scrutiny role in specific subject areas. For example, the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers provides guidance on a variety of issues relating to criminal offences, including when it is appropriate to: impose strict or absolute liability; reverse the burden of proof; or abrogate the privilege against self-incrimination.^[14] It also guides policy makers to relevant areas within the Attorney-General’s Department for other issues, such as when it may be appropriate to abrogate legal professional privilege.^[15] The Security and Intelligence Law Branch of the Attorney-General’s Department scrutinises all draft Bills and legislative instruments containing secrecy provisions. It provides an advisory assessment as to whether the provision is appropriately tailored and adequately justified and may also suggest alternative drafting.

Explanatory material

3.14     Since 1983, it has been standard practice for government Bills to be accompanied by an explanatory memorandum, and since 2003, all Commonwealth regulations must be accompanied by an explanatory statement. However, the history of explanatory statements and explanatory memoranda goes back to 1932 and the 1950s respectively.^[16]

3.15     Explanatory material is prepared by the government department with policy responsibility for the Bill or instrument, for approval by the relevant Minister. It contains the policy objectives of the Bill or legislative instrument, and contains a short explanation about each of the clauses. Explanatory material ought, where possible, to address matters relating to the principles considered by the Scrutiny of Bills Committee^[17] or Senate Standing Committee on Regulations and Ordinances (Regulations and Ordinances Committee).^[18]

3.16     The OPC may also indicate, as part of the drafting process, that particular matters—such as those that have been of interest to the Scrutiny of Bills Committee—should be explained in the explanatory memorandum.^[19]

3.17     Since 2011, all legislation and disallowable instruments must also be accompanied by a ‘statement of compatibility’. Statements of compatibility must include an assessment of whether a Bill or disallowable instrument is compatible with human rights.^[20] These are prepared by the relevant department for approval by the relevant Minister.

3.18     Following the introduction of this requirement, the Attorney-General’s Department developed a tool for assessing human rights compatibility. Templates and example statements of compatibility assist departments in the drafting of statements of compatibility.^[21] The Attorney-General’s Department provides specific assistance and advice to departments on statements of compatibility where requested and assists policy makers in responding to requests for further information from the Parliamentary Joint Committee on Human Rights (Human Rights Committee).^[22]

3.19     Additionally, the Human Rights Committee has published a guidance note on drafting statements of compatibility, setting out ‘the Committee’s approach to human rights assessments and its requirements for statements of compatibility’.^[23]

Consultation on draft Bills

3.20     A draft version of a Bill (an exposure draft) will sometimes be released to the public, particularly where ‘the proposed measures will have a significant impact on groups in the community’.^[24] Cabinet endorsement or Prime Ministerial approval (for Bills that do not include measures endorsed by Cabinet) is required before an exposure draft is released.^[25] This is in addition to consultation with other government agencies, which provides an additional opportunity for potential encroachments on rights to be brought to the attention of policy makers.