Efficacy of scrutiny and review mechanisms

Overlapping parliamentary scrutiny

2.45       Since the establishment of the Human Rights Committee, the overwhelming majority of bills which have an impact on the rights, freedoms and privileges listed in the Terms of Reference have been subject to at least two separate streams of parliamentary committee review. Table 1 sets out the extent of overlap in the consideration of these rights by the three parliamentary rights scrutiny committees.

Table 1   Parliamentary scrutiny of fundamental rights, freedoms and privileges[77]

ALRC Terms of Reference

Human Rights Committee

Scrutiny of Bills Committee

Regulations and Ordinances Committee

Freedom of speech

Freedom of religion

Freedom of association

Freedom of movement

Vested property rights

x

Retrospective offences

Retrospective application of obligations (civil)

x

Fair trial

Burden of proof

Privilege against self-incrimination

Client legal privilege

[78]

Strict and absolute liability

Appeal from acquittal

Procedural fairness

Judicial review

[79]

Delegating legislative power

x

Authorising what would otherwise be a tort

Limited[80]

Executive immunities

Limited[81]

2.46       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 for why a law that limits fundamental rights, freedoms or privileges is justified.[82]

2.47       However, where stronger concerns about human rights impacts arise, it seems that only the Human Rights Committee seeks empirical evidence to justify an encroachment, and focuses on the measure as a whole, while the Scrutiny of Bills Committee conducts a more technical analysis.[83]

2.48       A similar approach appears to be reflected in considering disallowable instruments, with the Regulations and Ordinances Committee focused on technical scrutiny.[84] Of the 283 instruments the Regulations and Ordinances Committee commented on in 2012–13, 70 related to a failure to provide sufficient information on consultation.[85]

2.49       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.[86] In light of this, it may be useful to consider reviewing the scope of the committees, and the relationship between them. For instance, the Human Rights Committee mght focus its attention only on the most significant limitations on human rights, while the Scrutiny of Bills Committee and Regulations and Ordinances Committees might continue to undertake a technical review of all bills and disallowable instruments. Another possible approach could see the requirement to conduct a human rights compatibility analysis added to the scope of the Scrutiny of Bills Committee’s work.

2.50       The United Kingdom’s experience provides an instructive precedent. The Joint Committee on Human Rights (UK Human Rights Committee) was established in 2001.[87] The UK Human Rights Committee has, since its inception, focused only on bills which appear to raise ‘significant questions of human rights’.[88] 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.[89] 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.[90]

2.51       Since 2006, the UK Human Rights Committee has begun an additional sifting process, to further target those bills to concentrate upon. 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 broader public or media attention;

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

  • the Explanatory Notes are incomplete so as to necessitate an inquiry into the relevant human rights issues; 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.[91]

2.52       Similar criteria adapted for Australia could, for example, be used by the Human Rights Committee.

Statements of compatibility and explanatory memoranda

2.53       Since January 2013, the Human Rights Committee has identified over 80 statements of compatibility that did not meet its expectations.[92] 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.[93]

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

the provision of proper Explanatory Memoranda is absolutely essential to the effective functioning of the [scrutiny process].[94]

2.55       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.[95]

2.56       In 2004, the Scrutiny of Bills Committee specifically considered the quality of explanatory memoranda. It recommended:

Before a Bill is introduced into the Parliament, an appropriately qualified person should check the explanatory memorandum accompanying the Bill to ensure it explains fully the effect and operation of the proposed legislation and complies with the requirements contained in [a new Legislation Handbook which consolidates the information contained in the Legislation Handbook, Legislation Circulars and Office of Parliamentary Counsel Drafting Directions].[96]

2.57       The Human Rights Committee has also emphasised the need for detailed and evidence-based assessments in statements of compatibility.[97]

2.58       Additional procedures could be put in place to improve the rigour of statements of compatibility and explanatory memoranda to assist Parliament in understanding the impact of proposed legislation on fundamental rights, freedoms and privileges. 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 fundamental rights, freedoms and privileges to allow the parliamentary scrutiny committees to complete their review.

Time constraints and parliamentary consideration of committee reports

2.59       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’.[98] Bills may pass into legislation with little or no consideration of the committees’ reports.[99] An extreme example of this arises where bills are 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.

2.60       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 of 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.

2.61       However, a number of parliamentarians[100] and commentators[101] support the imposition of minimum timeframes for scrutiny committees to consider bills.

2.62       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’.[102] 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.[103]

2.63       In the United Kingdom, 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.[104] In a further seven instances, the Government issued guidance based on the UK Human Rights Committee’s reports.[105]

2.64       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.[106]

2.65       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’.[107] 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.

2.66       However, Michael Tolley, in his consideration of the effectiveness of the UK Human Rights Committee concluded that ‘the jury is still out on the JCHR’s effectiveness’,[108] suggesting:

in most instances … the JCHR is unable to get the government to consider its views during the drafting stage ... [and] is unable to prevent the Government from passing the bills it wants.[109]

2.67       The UK Human Rights Committee has, since 2005, 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.[110] 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.[111]

2.68       A more radical suggestion to facilitate greater parliamentary consideration of committee reports is to, in effect, incorporate the scrutiny process into a bill’s passage through Parliament, with scrutiny committees empowered to amend the text of the Bill. These amendments would be subject to rejection in a vote before the Parliament.[112] However, this has the potential to result in more politically partisan scrutiny committees, subject to greater executive control.[113] Alternatively, it may also be useful to provide 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’.[114]

2.69       The ALRC considers that it may be constructive to consider reviewing the operations of the committees and Senate procedure 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.

2.70       A number of submissions to the Scrutiny of Bills Committee’s inquiry into its future role and direction, including that of the ALRC, also noted that the Scrutiny of Bills Committee should have access to adequate resources to complete its scrutiny task.[115]

[77]         This table is derived from: the definition of human rights in Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) s 3; the scrutiny principles listed in Senate, Parliament of Australia, Standing Order 23 (24 August 1994);  Senate, Parliament of Australia, Standing Order 24 (15 July 2014); and the reports of the relevant committees.

[78]         Respect for professional duties of confidentiality (such as the confidentiality of legal communications) is considered to fall under the category of a ‘right to privacy’: See, eg, Parliamentary Joint Committee on Human Rights, Parliament of Australia, Examination of Legislation in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, Fifteenth Report of the 44th Parliament  (November 2014), [1.52].

[79]         Parliamentary Joint Committee on Human Rights, above n 33, 18.

[80]         Where a contravention of the ICCPR would constitute a tort, authorisation of such conduct falls within the purview of art 2(3)(a) of the ICCPR, which requires that an effective remedy be available.

[81]         Executive immunities for actions which contravene the ICCPR fall within the purview of art 2(3)(a) of the ICCPR, which requires that an effective remedy be available.

[82]         Cf Parliamentary Joint Committee on Human Rights, Parliament of Australia, Examination of Legislation in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, Second Report of the 44th Parliament (February 2014), [1.317]; Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, Sixth Report of 2014 (June 2014), 238–9.

[83]         Cf Parliamentary Joint Committee on Human Rights, Parliament of Australia, Examination of Legislation in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, Second Report of the 44th Parliament (February 2014), [1.37]–[1.42]; Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, Fourth Report of 2014 (March 2014), 94–126.

[84]         Cf Parliamentary Joint Committee on Human Rights, Parliament of Australia, Examination of Legislation in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, Tenth Report of 2013 (June 2013), [3.11], [3.19]; Senate Standing Committee on Regulations and Ordinances, ‘Delegated Legislation Monitor No. 6 of 2013’ (Parliament of Australia, 20 June 2013), 403–4.

[85]         Senate Standing Committee on Regulations and Ordinances—Report on the Work of the Committee in 2012–13. Report No. 118, [3.7].

[86]         Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, Final Report—Inquiry into the Future Role and Direction of the Senate Scrutiny of Bills Committee (May 2012), [3.12].

[87]         Joint Committee on Human Rights, ‘The Work of the Committee in the 2001–2005 Parliament—19th Report of the 2004–05 Session’, [1].

[88]         Ibid [46].

[89]         Joint Committee on Human Rights, above n 87, [47].

[90]         Ibid.

[91]         House of Lords House of Commons Joint Committee on Human Rights, ‘The Committee’s Future Working Practices—Twenty Third Report of Session 2005–06’ (Report No 239, 24 July 2006), [29].

[92]         This figure is derived from a review of reports of the Human Rights Committee. Where a number of bills are introduced as part of a package, it has been counted as a single bill. Data has been collected from January 2013 because the Human Rights Committee began regularly drawing attention to statements of compatibility it judged inadequate from its first report of 2013 onwards.

[93]         This figure is derived from a review of reports of the Scrutiny of Bills Committee from January 2013 onwards.

[94]         House of Lords House of Commons Joint Committee on Human Rights, above n 91, [41].

[95]         Alex Hickman, ‘Explanatory Memorandums for Proposed Legislation in Australia: Are They Fulfilling Their Purpose?’ (2014) 29 Australasian Parliamentary Review 116, 120.

[96]         Senate Standing Committee for the Scrutiny of Bills, ‘The Quality of Explanatory Memoranda Accompanying Bills—Third Report of 2004’ (Parliament of Australia), 31.

[97]         Parliamentary Joint Committee on Human Rights, ‘Drafting Statements of Compatibility’ (Guidance Note No 1, Parliament of Australia, 2014), 1.

[98]         Carolyn Evans & Simon Evans, Messages from the Front Line: Parliamentarians’Perspectives of Rights Protection in Tom Campbell, KD Ewing and Adam Tomkins (eds) The Legal Protection of Human Rights: Sceptical Essays (Oxford University Press, 2011) 329, 342.

[99]         See, eg, ‘Ten Years of Scrutiny—a Seminar to Mark the Tenth Anniversary of the Senate Standing Committee for the Scrutiny of Bills’, above n 23, 33, 96–7; Carolyn Evans & Simon Evans, Messages from the Front Line: Parliamentarians’Perspectives of Rights Protection in Tom Campbell, KD Ewing and Adam Tomkins (eds) The Legal Protection of Human Rights: Sceptical Essays (Oxford University Press, 2011) 329, 342.

[100]       A number of parliamentarians interviewed by Professors Carolyn and Simon Evans indicated that ‘there was a need for parliamentarians, and parliamentary committees, to be given sufficient time to carry out their role seriously and responsibly’: Carolyn Evans & Simon Evans, Messages from the Front Line: Parliamentarians’Perspectives of Rights Protection in Tom Campbell, KD Ewing and Adam Tomkins (eds) The Legal Protection of Human Rights: Sceptical Essays (Oxford University Press, 2011) 329, 343.

[101]       See, eg, Law Council of Australia, Submission 19 to Senate Standing Committee for the Scrutiny of Bills, Inquiry into the Future Direction and Role of the Scrutiny of Bills Committee, 6 April 2010; Amnesty International, Submission 18 to Senate Standing Committee for the Scrutiny of Bills, Inquiry into the Future Direction and Role of the Scrutiny of Bills Committee,, 6 April 2010; Combined Community Legal Centres NSW, Submission 16 to Senate Standing Committee for the Scrutiny of Bills,  Inquiry into the Future Direction and Role of the Scrutiny of Bills Committee, 1 April 2010; Australian Human Rights Commission, Submission 11 to Senate Standing Committee for the Scrutiny of Bills, Inquiry into the Future Direction and Role of the Scrutiny of Bills Committee, 19 March 2010; Civil Liberties Australia, Submission 7 to Senate Standing Committee for the Scrutiny of Bills, Inquiry into the Future Direction and Role of the Scrutiny of Bills Committee, 19 March 2010.

[102]       Professor George Williams, Submission 76.

[103]       Carolyn Evans and Simon Evans, ‘Australian Parliaments and the Protection of Human Rights’ Papers on Parliament No 47, figure 1.

[104]       Murray Hunt, Hayley Hooper and Paul Yowell, ‘Parliaments and Human Rights: Redressing the Democratic Deficit’ (Arts & Humanities Research Council, 18 April 2012) 43–4.

[105]       Ibid 44.

[106]       Rhonda Powell, ‘Human Rights, Derogations and Anti-Terrorist Detention’ 69 Saskatchewan Law Review 79, 98.

[107]       Meghan Benton and Meg Russell, ‘Assessing the Impact of Parliamentary OVersight Committees: The Select Committees in the British House of Commons’ [2012] Parliamentary Affairs 1, 26.

[108]       Michael Tolley, ‘Parliamentary Scrutiny of Rights in the United Kingdom: Assessing the Work of the Joint Committee on Human Rights’ 44 Australian Journal of Political Science 41, 53.

[109]       Ibid 54.

[110]       Murray Hunt, Hayley Hooper and Paul Yowell, above n 104, 22.

[111]       Ibid 41.

[112]       Jonathan Morgan, Amateur Operatics: The Realization of Parliamentary Protection of Civil Liberties in Tom Campbell, KD Ewing and Adam Tomkins (eds) The Legal Protection of Human Rights: Sceptical Essays (Oxford University Press, 2011) 428, 444.

[113]       Ibid.

[114]       ‘Ten Years of Scrutiny—a Seminar to Mark the Tenth Anniversary of the Senate Standing Committee for the Scrutiny of Bills’, above n 23, 97.

[115]       Australian Law Reform Commission, Submission 32 to Senate Standing Committee for the Scrutiny of Bills, Inquiry into the Future Direction and Role of the Scrutiny of Bills Committee, 9 April 2010; Rule of Law Institute of Australia, Submission 28a to Senate Standing Committee for the Scrutiny of Bills, Inquiry into the Future Direction and Role of the Scrutiny of Bills Committee,24 June 2010; Australian Lawyers for Human Rights, Submission 24a to Senate Standing Committee for the Scrutiny of Bills, Inquiry into the Future Direction and Role of the Scrutiny of Bills Committee, 9 July 2010; Law Council of Australia, Submission 19 to Senate Standing Committee for the Scrutiny of Bills, Inquiry into the Future Direction and Role of the Scrutiny of Bills Committee, 6 April 2010; Australian Human Rights Commission, Submission 11 to Senate Standing Committee for the Scrutiny of Bills, Inquiry into the Future Direction and Role of the Scrutiny of Bills Committee, 19 March 2010; Civil Liberties Australia, Submission 7 to Senate Standing Committee for the Scrutiny of Bills, Inquiry into the Future Direction and Role of the Scrutiny of Bills Committee, 19 March 2010; Rev Prof the Honourable Michael Tate AO, Submission 2 to Senate Standing Committee for the Scrutiny of Bills, Inquiry into the Future Direction and Role of the Scrutiny of Bills Committee, 2 March 2010.