Policy development and legislative drafting

2.6          Policy development and legislative drafting does not occur in a rights vacuum. Guidance on developing rights-compatible legislation is provided in the Legislation Handbook,[4] in drafting directions prepared by the Office of Parliamentary Counsel (OPC), and other guidance documents.[5]

Drafting guidance

2.7          The drafting directions specifically alert policy makers to the types of provisions which draw adverse comment from the Senate Standing Committee on the Scrutiny of Bills (Scrutiny of Bills Committee).[6] Policy makers are also encouraged to seek advice from the relevant sections of the Attorney-General’s Department, and engage with drafters at OPC on these issues.

2.8          The Legislation Handbook provides 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]’.[7]

2.9          While some rights-encroaching legislation includes a time limit or ‘sunset clause’,[8] or review or reporting mechanism,[9] there is no general guidance included in either the Legislation Handbook or OPC’s Drafting Directions relating to the inclusion of sunset clauses or review mechanisms where legislation is likely to be inconsistent with fundamental rights, freedoms or privileges.

Explanatory material

2.10       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 span back to 1932 and the 1950s respectively.[10]

2.11       These are prepared by the government department with policy responsibility for the bill or instrument, for approval by the relevant Minister. Explanatory memoranda ought, where possible, to address matters considered by the Scrutiny of Bills Committee or Senate Standing Committee on Regulations and Ordinances (Regulations and Ordinances Committee). The Attorney-General’s Department provides advice and guidance on the drafting of explanatory memoranda.

2.12       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.[11] These are also prepared by the department developing a bill or disallowable instrument, for approval by the relevant Minister.

2.13       Following the introduction of this requirement, the Attorney-General’s Department developed a tool for assessing human rights compatibility, and a number of guidance documents. A non-exhaustive list of policy triggers which may give rise to human rights concerns seeks to engage policy makers on human rights issues from the initial stages of policy development.[12] Templates and example statements of compatibility[13] assist departments in the drafting of statements of compatibility. The Attorney-General’s Department also provides specific assistance and advice to departments on statements of compatibility where requested.

2.14       Additionally, the Parliamentary Joint Committee on Human Rights (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’.[14]

Consultation on draft bills

2.15       In addition to consultation with other government agencies, 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’.[15] Cabinet endorsement or Prime Ministerial approval (for bills that do not include measures endorsed by Cabinet) is required before an exposure draft is released.[16]