Improving Human Rights Analysis in the Legislative and Policy Processes

Abstract

In this article I propose and evaluate two mechanisms for improving the protection of human rights in parliamentary systems. I do so in the context of contemporary arguments that legislatures rather than courts should be primarily responsible for decisions about human rights, in the context of acknowledged weaknesses in existing legislative and prelegislative mechanisms for protecting human rights, and with particular reference to Australia (where only one jurisdiction has adopted a Bill of Rights). The mechanisms that I propose focus on enhancing the consideration of human rights issues during the process that leads up to the enactment of legislation. They are, first, a requirement that executive agencies prepare human rights impact statements (modelled on their existing regulatory impact statements) in relation to all significant policy proposals, and, second, that an independent executive agency review the quality of these statements. These mechanisms have two principal objectives. First, they aim to formalise and integrate human rights analysis with the process of developing policy options, rather than to have human rights analysis carried out almost at the end of the policy development process when legislation is ready to be introduced into parliament. And, second, through the provision of independent scrutiny, they aim to ensure that the parliament has the benefit of an appropriately reasoned analysis of the human rights impact of proposed legislation, and not just a perfunctory certification that the legislation is (or is not) compatible with human rights or a low quality analysis of human rights issues prepared as an afterthought by an executive agency that is focused on its 'core business.' Neither a requirement that policy makers prepare human rights impact statements or a requirement that human rights impact statements be scrutinized by an independent executive agency will establish a culture of human rights in Australian government. That depends on a commitment from the Executive to human rights as a yardstick by which government action is to be evaluated. However, the two mechanisms that I propose here can be important signals of the Executive's commitment to human rights. They are a logical extension of the existing commitment to evidence-based policy making. They do not disrupt existing institutional responsibilities and competences. They are designed to cultivate a practice of human rights interpretation and analysis in the executive and to facilitate human rights interpretation and analysis in general. They therefore have the potential to further the fundamental democratic objective of assisting Australian legislatures to make their own assessment of the human rights impact of the governments' proposals.