19 June 2010

A Parliamentary 'Dialogue' Model to Protect Human Rights

The Government has introduced the Human Rights (Parliamentary Scrutiny) Bill proposing a parliamentary joint committee on human rights.

The Committee is to examine compliance of all forms of legislation with international instruments purporting to capture the rights and freedoms of people.

They include the:

International Convention on the Elimination of All Forms of Racial Discrimination;

International Covenant on Economic, Social and Cultural Rights;

International Covenant on Civil and Political Rights;

Convention on the Elimination of All Forms of Discrimination Against Women;

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

Convention on the Rights of the Child; and

Convention on the Rights of Persons with Disabilities.

The intention behind both the committee and a requirement for administrators to prepare statements of compatibility when introducing legislative instruments is the creation of a human rights ‘dialogue’.

Time will tell whether this form of ‘dialogue’ is accepted by the advocates of ‘dialogue’ between courts and the parliaments created by the human rights charters in force in the ACT and Victoria. Somehow one doubts it will.

The bona fides of government will be tested by both the time and resources the committee will be given to examine every legislative instrument prepared by government.

There are lots of legislative instruments prepared and the seven international agreements purport to confer an extremely wide range of rights.

They range from from (for example) Article 9 of the International Covenant on Economic, Social and Cultural Rights, which requires consideration of the ‘right of everyone to social security’to Article 25(a) of the Convention on the Rights of Persons with Disabilities, which requires signatories to ‘(p)rovide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes’.

So if this is a fair dinkum committee, it will require fair dinkum resources.

The other issue relates to the compatibility statements to accompany legislative instruments.

Subclause 9(2) of the Bill requires ‘an assessment of whether the legislative instrument is compatible with human rights’ with the explanatory memorandum to the Bill suggesting the statements are to be ‘succinct assessments aimed at informing Parliamentary debate and containing a level of analysis that is proportionate to the impact of the proposed legislation on human rights’.

Frankly, despite all the training that will (perhaps) be offered, we doubt that most ‘rule makers’ making legislative instruments would have the background to know their instrument may require consideration of one of the widely drawn rights contained in instruments listed in the Bill let alone the tricky question of determining whether an instrument is ultimately ‘compatible’ with human rights.

The jury is well and truly out as to whether this is a serious attempt at ‘dialogue’ or a mere fig leaf to cover what some may regard as another area where the government has overpromised and underdelivered.