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Annual Report 2019 Page 5 Chapter 2 The committee's mode of operation Overview 2.1 The committee examines and reports on the human rights compatibility of all bills and legislative instruments that come before the Parliament.

In keeping with the longstanding conventions of the Senate scrutiny committees,1 the committee adopts a technical approach to its scrutiny of legislation, and does not consider the policy merits of the legislation.
During the reporting period, the committee generally met when both the 2.2 House of Representatives and the Senate sat, and had a regular reporting cycle around these meetings.

The committee's reports were generally tabled after these meetings, and generally dealt with the bills and legislative instruments introduced or tabled in the preceding period.
2.3 The committee seeks to conclude and report on its examination of bills while they are still before the Parliament, so that its findings may inform the legislative deliberations of the Parliament.

The committee's ability to do so is, however, dependent on Parliament's legislative program and the timeliness of responses to the committee's inquiries.
Where a bill is passed before the committee has been able to conclude its examination, the committee nevertheless completes its examination of the legislation and reports its findings to the Parliament.
The committee also examines all legislative instruments tabled in the 2.4 Parliament, including legislative instruments that are exempt from the disallowance process.2 The committee seeks to conclude and report on its examination of legislative instruments within the timeframe for disallowance prescribed by the Legislation Act 2003 (generally 15 sitting days after tabling).3 1 2 3 The three scrutiny committees in the Parliament are the Senate Standing Committee for the Scrutiny of Bills; the Senate Standing Committee for the Scrutiny of Delegated Legislation (formerly the Senate Standing Committee on Regulations and Ordinances); and the Parliamentary Joint Committee on Human Rights.
Legislative instruments may be exempt from disallowance as a result of exemptions in its enabling legislation, and the Legislation Act 2003 also provides that certain legislative instruments are exempt from disallowance (see section 44).
In the event that the committee's concerns cannot be resolved before the expiry of this period, the committee retains the option to give a 'protective' notice of motion to disallow the instrument, extending the disallowance period by a further 15 sitting days, to ensure that the ability of the Parliament to disallow the instrument is not lost pending the conclusion of the committee's examination.
Page 6 Annual Report 2019 The committee's analytical framework 2.5 Australia has voluntarily accepted obligations under the seven core United Nations human rights treaties.

It is a general principle of international human rights law that the rights protected by the human rights treaties are to be interpreted generously and any limitations on human rights are to be interpreted narrowly.
Accordingly, the primary focus of the committee's reports is determining whether any identified limitation of a human right is permissible under international human rights law.

International human rights law recognises that permissible limits may be 2.6 placed on most rights and freedoms—there are few absolute rights (that is, rights which cannot be limited in any circumstances).4 All other rights may be limited as long as the limitation meets certain standards.
In general, any measure that limits a human right must comply with the following criteria (the limitation criteria): • • • • be prescribed by law; be in pursuit of a legitimate objective; be rationally connected to (that is, effective to achieve) its stated objective; and be a proportionate way to achieve that objective.
2.7 Where a bill or instrument limits a human right, the statement of compatibility should provide a detailed and evidence-based assessment of the measures against these limitation criteria.

2.8 Where relevant, the committee takes into account the views of human rights treaty bodies, as well as international and comparative human rights jurisprudence.

These sources are relevant to the interpretation of the human rights against which the committee is required to assess legislation.
Statements of compatibility The Human Rights (Parliamentary Scrutiny) Act 2011 requires that each bill 2.9 instrument be accompanied by a statement of and disallowable compatibility.5 The statement of compatibility serves as the starting point for the application of the committee's analytical framework, and sets out the legislation proponent's assessment of the extent to which the legislation engages human rights.
legislative 4 Absolute rights are: the right not to be subjected to torture, cruel, inhuman or degrading treatment or punishment (including the prohibition on non-refoulement); the right not to be subjected to slavery; the right not to be imprisoned for inability to fulfil a contract; the right not to be subject to retrospective criminal laws; the right to recognition as a person before the law.

5 See Human Rights (Parliamentary Scrutiny) Act 2011, Part 3.
Annual Report 2019 Page 7 2.10 The committee sets out compatibility in its Guidance Note 1.6 its guidance in relation to statements of The scrutiny dialogue model The committee's main function of scrutinising legislation is pursued through 2.11 legislation proponents (usually ministers).
Accordingly, where dialogue with legislation raises a human rights concern which has not been adequately explained in the relevant statement of compatibility, the committee's usual approach is to publish an initial report setting out the questions it has in relation to the legislation and advising that it intends to seek further information from the legislation proponent.
Any response from the legislation proponent is subsequently considered and published alongside the committee's concluding report on the matter.

As well as making concluding remarks on the human rights compatibility of the relevant legislation, the committee may recommend that consideration be given to implementing recommendations to strengthen the compatibility of the legislation with Australia's human rights obligations.
2.12 In some cases, legislation proponents may undertake to address the committee's concerns in the future (for example, by amending legislation or undertaking to conduct a review of the legislation in due course), or may advise that amendments have been made to address the committee's earlier concerns when introducing a future iteration of a bill.7 2.13 The committee does not generally call for public submissions in relation to its technical scrutiny of legislation.8 However, the committee welcomes correspondence and submissions from parliamentarians, interested groups and other stakeholders who wish to bring matters to the committee's attention that are relevant to its functions under the Act.
The committee will take these into account where relevant to the examination of a particular item of legislation.
Structure of the committee's scrutiny reports 2.14 The structure of the committee's scrutiny reports reflects the progress of the dialogue model described above, with matters proceeding from an initial report describing the human rights engaged by the bill, to a concluding report that analyses 6 7 8 See Guidance Note 1,Drafting statements of compatibility, available on the committee's webpage at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Guidance _Notes_and_Resources.
See, for example, the Hon Peter Dutton MP, Crimes Legislation Amendment (Police Powers at Airports) Bill 2019, second reading speech, 4 July 2019.

During the reporting period, the committee undertook an inquiry into the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019, where it called for public submissions.

See further information in relation to this in Chapter 3.

Page 8 Annual Report 2019 information received by the any committee's initial report.
legislation proponent in response to the Chapter 1 of the committee's reports include new and continuing matters.

2.15 This generally includes all bills introduced during the preceding sitting week and legislative instruments tabled in the preceding period.
Where the committee considers that a bill or instrument engages human rights and further information is required in order for the committee to complete its examination, these bills and instruments are the subject of substantive report entries describing the relevant measures, the human rights that appear to be engaged by the measure, and the information that is required in order for the committee to complete its assessment.
2.16 Where the committee considers that legislation does not engage, or only marginally engages, human rights; promotes human rights; and/or permissibly limits human rights, it lists these bills in a 'no comment' section of the report, or in relation to instruments, states it has no comment in relation to the remaining instruments in the relevant period.9 From September 2019,10 the committee registered introduced a new approach to the consideration of bills introduced by private members and senators, listing any such bills which appear to engage and potentially limit human rights in Chapter 1, and noting that should they proceed to further stages of debate, the committee may request further information from the legislation proponent as to the human rights compatibility of the bill.
This assists in enabling the committee to manage its high workload and prioritise those bills which are more likely to move to further stages of debate.

2.17 Chapter 1 also considers continuing matters (or further response required matters), where the committee has received a response from the legislation proponent, but requires further information in order to conclude its examination of the matter.
Chapter 2 of the committee's reports examine responses received in relation 2.18 to the committee's requests for information, on the basis of which the committee has concluded its examination of the legislation in question.

Ministerial responses 9 Each report states that the committee examines the legislative instruments registered on the Federal Register of Legislation during a specified period.
Due to the very high volume of legislative instruments examined by the committee, instruments on which no substantive comment is made are not listed in the report itself.

All legislative instruments scrutinised by the committee during the stated period can be viewed on the Federal Register of Legislation using its advanced search function, available at: https://www.legislation.gov.au/AdvancedSearch.

10 See Parliamentary Joint Committee on Human Rights, Report 4 of 2019 (10 September 2019), p. 10.
Annual Report 2019 Page 9 are published in full alongside the report on the committee's website.11 These responses are also extracted and analysed in Chapter 2 of the report.

As noted above at paragraph [2.11], the committee's concluding remarks on legislation may include findings as legislation, and recommendations to address any human rights concerns.

rights compatibility of the human the to 2.19 During 2019, the committee adopted a new report entry structure.
From Report 6 of 2019, report entries clearly distinguish between the international human rights legal advice which has been provided to the committee, and the committee's subsequent consideration of that advice in relation to the legislation under review.

Assessing legislation for compatibility with international human rights law often requires an assessment of whether a human right is limited and whether this can be appropriately justified by way of a permissible limitation.
The new structure of the committee reports provides appropriate transparency as to the legal advice received by the committee as distinct from the independent analysis of that legal advice, and other relevant materials as the case may be, by committee members.

This is an important distinction to make as only committee members, as democratically elected parliamentarians, are empowered to report to the Parliament as to the human rights implications of any bill or instrument.
Legal advice 2.20 The committee is assisted by an external legal adviser on a part-time basis, who is appointed by the Presiding Officers of the Parliament.

The committee's legal adviser during the reporting period was Associate Professor Jacqueline Mowbray.

Associate Professor Mowbray has extensive research and teaching experience in international law and human rights.
Associate Professor Mowbray has also published widely on related matters, leading work on the International Covenant on Economic, Social and Cultural Rights.

Associate Professor Mowbray previously served as co-director of the Sydney Centre for International Law and as editor of the Australian International Law Journal.

During her time as legal adviser to the committee she remained employed by the University of Sydney.
including, as co-author, a In addition to the external legal adviser, the human rights committee 2.21 secretariat also includes staff with expertise in international human rights law.

Committee publications and resources 2.22 In addition to its regular reports on the human rights compatibility of legislation, the committee has produced a number of publications and resources to assist ministers, departments and interested parties more generally in engaging with the committee and its work.
11 Ministerial responses are available at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_ reports.

Page 10 Committee guidance notes Annual Report 2019 The committee has produced two guidance notes, which are available on the 2.23 committee's website.12 Guidance Note 1—Drafting statements of compatibility This note sets out the committee's approach to human rights assessments 2.24 and provides guidance as to statements of compatibility.
It is primarily designed to assist legislation proponents in the preparation of statements of compatibility.

Guidance Note 2—Offence provisions, civil penalties and human rights 2.25 This guidance note sets out some of the key human rights compatibility issues in relation to provisions that create offences and civil penalties.

It is not intended to be exhaustive but to provide guidance on the approach in relation to assessing the human rights compatibility of such provisions.
Guide to human rights The committee's Guide to human rights (the guide) provides an introduction 2.26 to the key human rights protected by the human rights treaties relevant to the committee's assessments of legislation.13 2.27 The guide is intended to provide a brief and accessible overview of Australia's human rights obligations, the key human rights considered by the committee, and the manner in which human rights may be permissibly limited.
Case studies are provided to illustrate how human rights may be engaged and limited in practice.

The guide also includes a references section for those seeking more comprehensive information about the rights listed in the guide.
The guide is available on the committee's website.14 Index of bills and legislative instruments The Index of bills and legislative instruments lists all the bills examined by the 2.28 committee, and those legislative instruments in relation to which the committee has substantively commented on.
The index contains a shorthand description of any rights engaged by the legislation and the action taken by the committee (that is, whether the committee made no comment, an advice-only comment, or a comment 12 Available at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Guidance _Notes_and_Resources 13 14 The committee's first Guide to Human Rights was published in March 2014.

This guide was updated in June 2015.


The committee's Guide to Human Rights is available at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Guidance _Notes_and_Resources.

Annual Report 2019 Page 11 requiring a response from the legislation proponent); and the relevant report(s) in which the committee's full comments may be found.15 Scrutiny reports and databases 2.29 The committee's scrutiny reports themselves are also a key resource.
These are available on the committee's website.

They can be downloaded as single PDF documents or separate chapters.16 The scrutiny reports are also available on the Australasian Legal Information Institute (AustLII) website where each report entry for legislation is available separately and is individually searchable.17 15 16 The Index of bills is available at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/ Index_of_bills_and_instruments.
The committee's scrutiny reports are available at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_ reports.

17 The Australasian Legal Information Institute PJCHR database is available at: http://www.austlii.edu.au/cgi-bin/viewdb/au/other/AUPJCHR/.