David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

On behalf of the Parliamentary Joint Committee on Human Rights, I present the fifth report of 2018, Human rights scrutiny report, together with the committee's annual report for 2016-17, and I seek leave to have the tabling statement incorporated into Hansard.

Leave granted.

The statement read as follows

The statement was unavailable at the time of publishing.

Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source

I move:

That the Senate take note of the annual report.

The Parliamentary Joint Committee on Human Rights annual report for 2016-17 covers a range of issues that, I think, bear attention of the Senate. We know that the Parliamentary Joint Committee on Human Rights is one of the key committees in this parliament. It examines and reports on the human rights compatibility of all bills and legislative instruments that come before the parliament. In those Monday evening meetings in every sitting period, we can have a large number of bills and instruments in front of us that take considerable time for close scrutiny and also involve a great deal of discussion. It is a very important committee. I know a number of members in this place have served on the committee, and I hope many more will take the opportunity to read some of the reports and see some of the recommendations made by our committee on our responsibilities under the human rights legislation, to which we are party, for consideration of all legislation that comes before our parliament. It's most important that we understand that all legislation that comes before the parliament is subject to scrutiny by the human rights committee.

Australia has voluntarily accepted obligations under the seven core United Nations human rights treaties, and it's a general principle of international human rights law that the rights protected by the human rights treaty are to be interpreted generously and any limitations on human rights are to be interpreted narrowly. Accordingly, and this is important for the role of the committee, the primary focus of the committee's report is determining whether any identified limitation of a human right is justifiable. That's often where debates occur, because there is no particular statement that says that everything has to apply and that there is no human right that cannot be questioned. What the committee does consider, and the committee takes its responsibilities very seriously, is that human rights law recognises that reasonable limits may be placed on most rights and freedoms. There are very few absolute rights that cannot be limited in any circumstances, and all the other rights must be limited as long as the limitation meets certain standards. There are a number of key criteria that our committee looks at: rights need to be prescribed by law, be in pursuit of a legitimate objective, be rationally connected to the stated objective, and be a proportionate way to achieve that objective.

What I want to discuss this evening is that this annual report draws particular attention to the statements of compatibility that are prepared by ministers and ministers' offices that come to the committee for consideration. As I've said, it is the responsibility of the ministers to explain what, if any, is the impact of our compatibility on the core human rights responsibilities, and, if there could be any way that an impact on these human rights laws is being recommended in legislation, what is the reason and does it meet those criteria that I've explained.

What we have found over the period that I've been on the committee—which is this parliament and part of the last parliament—is that way too often these statements of compatibility do not fulfil the expectations of professional ministerial offices. We get basic statements of compatibility. There are very few times that we don't receive a statement from a minister's office. It happens rarely. We receive a statement that actually links the legislation to the human rights responsibilities. And then it is the responsibility of the minister's office to make a case to identify whether, in fact, there have been decisions that used the proportionality defence to say why there is a justifiable reason—a reason that the can be defended—that a particular human right may be called into question.

We are not getting the quality of responses across the board that we should expect in a system that has been operational in our parliament for a number of years. For about four parliaments now, we have had an operational Parliamentary Joint Committee on Human Rights, so it's not new. Our chair, Mr Ian Goodenough from the other place, made a statement in this year's annual report which talks about the timeliness of the reports. And this is worrying in itself, because the whole object of our committee is that we consider the human rights responsibilities before the bills or the instruments are debated in this place. Because, actually, that's the idea: that parliament knows the human rights responsibilities when we are debating the legislation. It's really helpful if we find out that bills meet our human rights requirement. More importantly, we can find out several months after the parliament has passed the legislation that it doesn't meet our requirements. The reason for that is the timeliness and the adequacy and the effectiveness of the ministerial statements.

We have on record for the last 12 months that 30 per cent of responses were on time and 68 per cent were late. Two per cent were outstanding—which means we haven't even got a response from the ministerial office. I'm not going to name the offices because that's inappropriate, but if this continues it may well be that we have to have this debate openly, because it is a requirement of the parliament that all legislation and regulations should be subject to scrutiny by the Parliamentary Joint Committee on Human Rights. Timeliness is very important, but what is necessary is that when the reports are received they are complete. I see Senator Reynolds across the chamber. The number of times we spend hours on a Monday evening and then have to refer questions back to the ministerial office because the arguments that are there do not effectively respond to the needs of the committee! That's just a waste of everyone's time. If we just meet a particularly difficult or sensitive point and we need more information, of course that would be standard practice. But, if it's just because it's sloppy or inadequate work, it's offensive to the minister, because the minister's name is signed on it; to the very professional secretariat of this committee, who work so hard to ensure that we have the best possible support; to the professional adviser we have; and also to the members and senators who have been appointed to this committee and who give up their time to ensure that this scrutiny is effective.

So I think it's important. The human rights committee secretariat has put out a very impressive, professional drafting statement for compatibility statements, Guidance Note 1. That's on the website and it's in the system. If you're writing a compatibility statement, if you follow these processes, you should come very close to getting it right. So we draw that to the attention of various departments so that we can justifiably take up our responsibilities in this committee.

I also want to put on notice that this afternoon I want to talk about another committee, but I'm going to run out of time. We in the human rights committee did a full and very interesting inquiry this year on 18C. I think it was a particularly effective use of the joint human rights committee to use this process, and I'll talk about that at another time. But what I want to say—and I hope that all members of the committee know it—is that, in the report of the implementation of the Sustainable Development Goals which our government is going to take to the UN in a couple of weeks time, there is a particular statement about the role of our Joint Standing Committee on Human Rights. It says that Australia has been a leading supporter of national human rights institutions globally. It talks about the incredibly important role of the Australian Human Rights Commission and how it promotes human rights in the wider community. It talks about our committee in parliament and says that we have this focus on human rights in our parliament. Again, it is celebrating the fact that we not only sign up to core human rights treaties internationally but take them seriously and ensure, as I've said before, that all legislation and all legislative instruments that come before the parliament are subject to human rights consideration. So I think it's very impressive. I believe it's going to be Minister Connie Fierravanti-Wells who will be taking this report to the UN. The report indicates to the international community—because certainly the SDG framework is based on respect for human rights across the world—that the Australian parliament has a committee that reports regularly. We've had the most recent report this evening, on the legislation we've looked at in the last few months, and there is also the annual report. There is also our role now on the United Nations Human Rights Council. So we not only talk about human rights but also assess our performance and live the importance of human rights. As we know, we've just had the unfortunate news about the decision of the US government to remove itself from the UN Human Rights Council. I think it's most important that countries like Australia continue to celebrate our commitment to and our absolute knowledge of and respect for human rights in our parliament.

Carol Brown (Tasmania, Australian Labor Party, Shadow Minister for Disability and Carers) Share this | Link to this | Hansard source

I congratulate Senator Moore on her contribution. Senator Moore is a very active member of the Parliamentary Joint Standing Committee on Human Rights.

Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source

A regular attendant.

Carol Brown (Tasmania, Australian Labor Party, Shadow Minister for Disability and Carers) Share this | Link to this | Hansard source

Yes, indeed. So thank you. I rise to speak to the 2016-17 annual report of the Parliamentary Joint Standing Committee on Human Rights, because this is an important committee and does extraordinary work. The secretariat is a very hardworking, professional secretariat and should be congratulated on the work that it has done throughout the year and on putting this report together, along with, of course, the chair of the committee, Mr Ian Goodenough.

The role of the committee is to scrutinise legislation before the parliament and to consider these matters with respect to their impact on human rights under our international obligations. First and foremost, the committee was set up to act preventatively in order to safeguard human rights through the legislative process. To that end, we work together to examine various pieces of legislation, ensure their compatibility with human rights and report to the House and the Senate on this. We are also an educative body and, where possible, seek to raise awareness of legislation that promotes human rights and broadcast work that safeguards human rights.

The previous period for which this annual report is reporting was very busy for the committee, with a total of 405 bills and acts considered as well as 2,942 legislative instruments. It is important to let the Senate know what some of the most commonly engaged rights that were identified in legislation are and what the committee has put together in this annual report. There's a section on it. It's very important for all the senators and the members of the House of Representatives to actually go and grab a copy of the annual report, if they haven't already done so, and read through the work of the committee and what the committee has done. It is important to see some of the issues that are continually raised within the committee. The report that we have before us puts together these issues in a very clear way as to some of the things that can be done. Senator Moore talked about these things in her contribution, particularly around the compatibility statement. There is work that needs to be done there.

I will just take a few moments to talk through some of those most commonly engaged human rights which have been identified in legislation and commented on during the reporting period. They are listed in order. They are: the right to privacy, the right to equality and non-discrimination, the right to a fair trial, the right to a fair hearing, the right to an adequate standard of living, the protection of the respect for family life, the right to social security, the right to be assumed innocent, the right to freedom of expression or opinion, the rights of children and the best interests of the child. As you can see, this is extremely important work that this committee carries out. What we saw in the committee was that a number of the key rights came up time and time again. That was most notably through social security, workplace relations and migration legislation. I'm pretty proud of the work that this committee does and that the very, very active committee members have undertaken. I'm proud that the committee has been able to complete such important work.

While the nature of much of this legislation has clearly been contentious, we on the opposite side of the chamber can work compatibly, at times, to project our views across the chamber. The work of the committee is undertaken in a cross-party fashion to ensure that our human rights obligations come first and foremost. Indeed, some of the legislative measures that we looked at over the course of the last year were highly political matters. We examined the Fair Work (Registered Organisations) Act 2009 and the Building and Construction Legislation Amendment Act 2016. We considered the grounds for the cancellation of registered organisations and what may be displayed or prohibited from display. These are matters that I and my colleagues from other parties have had widely diverging views on. We were able to work together in the committee nonetheless, considering the human rights implications of these pieces of legislation, in order to ensure that the right to freedom of association, the right to collectively bargain and the right to freedom of expression continue to be upheld in Australia now and into the future.

In assessing the impact of legislation on the rights of Australians, the committee considers the seven core treaties to which Australia is a party. Most notably, I'm proud to consider the impact of legislation on Australians with respect to the Convention on the Rights of Persons with Disabilities, a matter of great importance to me in my capacity as shadow minister for disability and carers. Australia signed the Convention on the Rights of Persons with Disabilities alongside 80 other countries in 2007, the same time I joined this committee. At this time the convention had already been in development, as people have been calling on the UN to adopt such legislation since the early eighties. When we looked at how this convention was enacted and safeguarded in Australian legislation, the committee often did so with respect to the right to freedom of expression or opinion. After all, in a society that is not inclusive and accessible to all, how can one truly engage in full freedom of expression or opinion? This was therefore a matter that we looked into across approximately four per cent of the legislation we reviewed, including in relation to the workplace relations legislation and the migration legislation.

It is critical that we continue this work as a committee, also acting as a check and balance for the legislative process to ensure that at all times we are safeguarding the rights of persons with disability. The role of this committee is to continue to provide scrutiny across all legislation and across all areas of human rights to make sure that this is not something that we are addressing only with singular pieces of legislation at isolated moments in time. That is why the committee often refers to statements of compatibility. And, as I've mentioned, Senator Moore in her contribution went through some of the details and some of the issues and concerns the committee has around statements of compatibility that have been supplied. The statement of compatibility with human rights accompanies the bills and the legislative instruments. It is a requirement that bills and legislative instruments provide a statement of compatibility with human rights, but it's not a requirement that such a statement take a specific form. This is one reason statements of compatibility can be highly variable and unfortunately one reason they're often lacking key details. We've seen through this process that if we don't have statements of compatibility that are thorough and that address the detail of the legislation we continue to have to go back to ministers asking them to provide information about the statement of compatibility.

While it is indicated in the annual report, signed off by Mr Goodenough, that timeliness in terms of reporting during the last period was an issue, most of the legislation that we've seen before the committee did adhere to the requirements set out under the statement of compatibility, and we actually did see that most of the— (Time expired)

I seek leave to continue my remarks later.

Leave granted; debate adjourned.