Parliamentary scrutiny processes

2.16       Parliamentary debate during the passage of legislation is the ultimate forum for the scrutiny of, and judgments about, encroachments on fundamental rights, freedoms and privileges. However, in order to ensure the Parliament is well-informed in conducting such debates, a number of scrutiny committees specifically consider whether Commonwealth laws encroach upon fundamental rights, freedoms and privileges. This began with the Regulations and Ordinances Committee, established in 1932 to review disallowable instruments. The scrutiny function was expanded to the Scrutiny of Bills Committee in 1981. Both committees have a long-standing history of conducting a technical scrutiny function, which does not delve into the policy merits of a particular provision.^[17] In 2011, the Human Rights Committee was established to consider a wider range of human rights—specifically tied to Australia’s international human rights obligations—in conducting its review. The Human Rights Committee specifically considers the policy merits of provisions as part of its scrutiny.^[18]

2.17       Additionally, the Parliamentary Joint Committee on Intelligence and Security (Intelligence Committee), Parliamentary Joint Committee on Law Enforcement (Law Enforcement Committee) and the Senate Standing Committee on Legal and Constitutional Affairs (Legal and Constitutional Affairs Committee) review legislation which impact on fundamental rights, freedoms and privileges, particularly in relation to migration, counter-terrorism and national security legislation.

Senate Standing Committee on Regulations and Ordinances

2.18       The Regulations and Ordinances Committee was established in 1932. It is required to review, and, if necessary, report on whether disallowable instruments:

• are in accordance with the statute;

• unduly trespass on personal rights and liberties;

• unduly make the rights and liberties of citizens dependent upon administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal; or

• contain matter more appropriate for parliamentary enactment.^[19]

2.19       The Regulations and Ordinances Committee is comprised of six members supported by a legal adviser who reviews all disallowable instruments against the principles above, and provides a report on compliance.^[20]

2.20       Where an instrument raises a concern with respect to the matters being tested, the Regulations and Ordinances Committee usually writes to the responsible Minister for further explanation, or to seek an undertaking for specific action to resolve the concern.^[21] This process is usually completed within 15 sitting days of the instrument being tabled, to allow the Committee to seek disallowance of an instrument if its concerns are not allayed. Where the scrutiny process is not completed, the Regulations and Ordinances Committee may move a notice of motion for disallowance in order to provide it with sufficient time to complete its review, and retain its power to seek disallowance if concerns about compliance with its scrutiny principles are not addressed.^[22]

Senate Standing Committee for the Scrutiny of Bills

2.21       The Scrutiny of Bills Committee was established in 1981, on a six month probationary basis, with its functions carried out by the Constitutional and Legal Affairs Committee.^[23] In May 1982, the Scrutiny of Bills Committee was constituted as a separate committee, but it was not until 1987 that it was made a standing committee of the Senate.^[24] The scrutiny principles applied by the Committee are drawn from those applied by the Regulations and Ordinances Committee, and require it to consider whether bills or Acts:

• trespass unduly on personal rights and liberties;

• make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers;

• make rights, liberties or obligations unduly dependent upon non-reviewable decisions;

• inappropriately delegate legislative powers; or

• insufficiently subject the exercise of legislative power to parliamentary scrutiny.^[25]

2.22       The Committee is comprised of six members, supported by a legal adviser who reviews all bills against the scrutiny principles, and provides a report on whether and how the principles are breached. Based on this advice, the Scrutiny of Bills Committee publishes, on each Wednesday of a sitting week, an Alert Digest containing an outline of each of the Bills introduced in the previous sitting week, along with any comments it wants to make in relation to a particular Bill.

2.23       If concerns are raised in the Digest, the Scrutiny of Bills Committee writes to the Minister responsible for the bill, inviting a response to its concerns, and sometimes suggests an amendment. The Minister’s response may include a revised version of a section of legislation, a slight alteration to the legislation or explanatory memorandum, or the response may better explain why the bill has appeared in its current form. If these responses do not allay the Scrutiny of Bills Committee’s concerns, it will draw the provisions in question to the Senate’s attention through its Report, and leave it to the Senate to determine the appropriateness of the relevant encroachment.

2.24       The Scrutiny of Bills Committee’s concerns, the Minister’s responses and the Committee’s conclusions are published in a Report. Since February 2015, the Scrutiny of Bills Committee also publishes a newsletter highlighting key scrutiny issues. It focuses on ‘information that may be useful when bills are debated’.^[26]

Parliamentary Joint Committee on Human Rights

2.25       The Human Rights Committee was established under section 4 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (Parliamentary Scrutiny Act). The Human Rights Committee must examine all bills and legislative instruments that come before either House of Parliament for compatibility with human rights, and report to both Houses on that issue.^[27] It is an extension of existing parliamentary rights review mechanisms, and draws an explicit connection with international human rights instruments.

2.26       Unlike the Regulations and Ordinances Committee and the Scrutiny of Bills Committee, which draw their scrutiny principles broadly from the International Covenant on Civil and Political Rights (ICCPR),^[28] the Human Rights Committee’s scrutiny is tied directly to international human rights instruments. The Parliamentary Scrutiny Act defines human rights as those rights and freedoms declared in the ICCPR and International Covenant on Economic, Social and Cultural Rights (ICESR),^[29] as well as a number of other international instruments which relate to the rights in the ICCPR and ICESR.^[30]

2.27       The Committee is comprised of 10 members,^[31] and is supported by a legal adviser and secretariat. If the Human Rights Committee is not initially satisfied with the human rights compatibility of a bill, it will write to the relevant Minister seeking further detail about the bill. The Committee also has the power to request a briefing, call for written submissions, hold public hearings and/or call for witnesses.^[32]

2.28       On each Tuesday of a sitting week, the Human Rights Committee publishes a report commenting on provisions raising human rights concerns, or where insufficient information has been provided to allow it to undertake an analysis. It also comments on responses received in response to comments in earlier reports.

2.29       In conducting its examination, the Human Rights Committee categorises bills and instruments into three groups: legislation which does not give rise to human rights concerns; legislation which potentially raises human rights concerns; and legislation that raises human rights concerns the Committee considers require closer examination.^[33] The third category refers to those pieces of legislation that raise human rights concerns of such significance or complexity that the Committee may examine it more closely, and use its powers to hold hearings or request a briefing.^[34]

2.30       The primary focus of the Committee is ‘determining whether any identified limitation of a human right is justifiable’.^[35] It does so by reference to what are known as the Siracusa Principles,^[36] 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.^[37]

Senate Standing Committee on Legal and Constitutional Affairs

2.31       First established in 1970, eight legislative and general purpose standing committees, including the Legal and Constitutional Affairs Committee, are appointed under Senate Standing Order 25.^[38] It is comprised of a pair of committees, the Legislation Committee, which deals with bills, estimates processes and oversees departmental performance, and the References Committee, which deals with references from the Senate.^[39] The Legislation Committee is required to take into account, in its review of bills, comments made by the Scrutiny of Bills Committee.^[40] As a result, the Constitutional and Legal Affairs Committee considers encroachments on fundamental rights, freedoms and privileges to the extent that the Scrutiny of Bills Committee raises these issues in its reports. As discussed above, the Scrutiny of Bills Committee is specifically required to review bills to determine whether they trespass on personal rights and liberties.

2.32       Each committee is allocated a group of departments and agencies to oversee.^[41] The Legal and Constitutional Affairs Committee has coverage of the Attorney-General’s Department and Department of Immigration and Border Protection.^[42] As part of its oversight, it scrutinises a number of legislative frameworks which may have an impact upon fundamental rights, freedoms and privileges, such as migration law, and counter-terrorism and national security legislation.

2.33       The Legislation and References Committees of the Legal and Constitutional Affairs committee are comprised of six members each, with a Government majority in the Legislation Committee and an Opposition majority in the References Committee.^[43] In the Legislation Committee, three of the members are nominated by the Leader of the Government in the Senate, two are nominated by the Leader of the Opposition in the Senate and one by minority groups and independent senators.^[44] In the References Committee, three members are nominated by the Leader of the Opposition in the Senate, two by the Leader of the Government and one by minority groups and independent senators.^[45] The Committees have the power to appoint persons with specialist knowledge.^[46]

Parliamentary Joint Committee on Intelligence and Security

2.34       The Intelligence Committee was established in 2001, under s 28 of the Intelligence Services Act 2001 (Cth) (Intelligence Services Act). It is comprised of eleven members, the majority of whom must be Government members.^[47] Five members are drawn from the Senate and six from the House of Representatives.^[48]

2.35       The Intelligence Committee is required to review any matter, including bills before the Parliament, relating to Australia’s intelligence and security agencies referred to it by the Attorney-General or a resolution of either House of Parliament.^[49] It may also request the Attorney-General to refer a matter to it.^[50] Some examples of bills the Intelligence Committee has reviewed since January 2014 include the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014(Cth), Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (Cth), and the National Security Legislation Amendment Bill (No. 1) 2014 (Cth).

2.36       The Intelligence Committee also has a role in post-implementation review. It is required, under s 29 of the Intelligence Services Act, to review the operation, effectiveness and implications of the following provisions by 7 May 2018:

• pt III div 3 of the Australian Security Intelligence Organisation Act 1979 (Cth);

• pt 1AA div 3A of the Crimes Act 1914 (Cth);

• divs 104 and 105 of the Criminal Code 1995;^[51] and

• ss 119.2 and 119.3 of the Criminal Code 1995.^[52]

2.37       While the Intelligence Services Act does not expressly require that the Intelligence Committee consider fundamental rights, freedoms and privileges as part of its review of bills, in practice, the Committee considers whether the bill provides adequate safeguards and accountability mechanisms.^[53] These are matters that are relevant to whether encroachments on fundamental rights, freedoms and privileges are justified.^[54] The Intelligence Committee has the power to conduct private hearings,^[55] which may allow it to conduct a more thorough evidence-based review of justifications for encroachments on fundamental rights, freedoms and privileges based on national security concerns.

Parliamentary Joint Committee on Law Enforcement

2.38       The Law Enforcement Committee was established in December 2013, and is comprised of ten members,^[56] with a Government majority. Five members are drawn from the House of Representatives and five from the Senate.^[57] The five members of the House of Representatives are comprised of three members nominated by the Government Whip and two by the Opposition Whip. The five members of the Senate are comprised of two members nominated by the Leader of the Government in the Senate, two members by the Leader of the Opposition in the Senate and one by any minority group or independent senator. ^[58] The Committee is chaired by a Government member,^[59] and a non-Government member is the deputy chair.^[60]

2.39       The Law Enforcement Committee is concerned mostly with the activities of the Australian Crime Commission (ACC) and the Australian Federal Police (AFP). It reviews annual reports of the ACC and the AFP, providing additional oversight of agencies with ‘strong, coercive powers’.^[61] It is required, among other things, to examine trends and changes in criminal activities, practices and methods and report on changes it thinks desirable to the structure, functions, powers and procedures of the ACC and AFP.^[62] It is also required to oversee the operation of pt 2–6 and s 20A of the Proceeds of Crime Act 2002 (Cth).^[63]

2.40       The Law Enforcement Committee is not expressly required, under the Parliamentary Joint Committee on Law Enforcement Act 2010 (Cth), to consider fundamental rights, freedoms and privileges as part of its review. However, its oversight functions are designed to monitor the implementation and operation of legislative frameworks which may encroach upon fundamental rights, freedoms and privileges.^[64]