Australia’s Human Rights Scrutiny Regime (Advance)

Abstract

The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) aims to improve the protection of human rights in Australia. It does so by requiring federal Bills and legislative instruments to be accompanied by a statement as to their compatibility with a number of international human rights conventions. The Parliamentary Joint Committee on Human Rights, also constituted by the Act, examines such statements and makes recommendations on the human rights compatibility of Bills. In this model of human rights scrutiny, there is no scope for Bills or regulations to be interpreted conformably with rights, or declared invalid, by courts. This article uses empirical analysis to explore whether this model has led to greater discussion about, and protection of, human rights in Australia. While the regime has contributed to the dialogue between lawmakers about the human rights impacts of proposed legislation, the model is failing to deliver better substantive human rights outcomes in federal Bills and legislative instruments. If Australia is committed to enhancing human rights protection, the scrutiny regime should be reinforced, or other measures, such as a charter of rights, must be contemplated.