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Yes, but what does the law actually do? How compatibility statements can protect rights in SA

The South Australian Parliament is currently looking into whether and how human rights principles should be incorporated into the lawmaking process, and in particular, the way parliamentary committees undertake their work. One option is to follow the lead of the federal Parliament in Canberra, our neighbours in Victoria and our friends in Queensland and the ACT, and require that new laws be introduced with a statement about whether or not they comply with human rights. This would mean, for example, that if the Attorney General wanted to make it an offence not to wear a mask in public, she would need to set out in writing the impact this might have on freedom of expression or freedom of movement, as well the positive impacts it would have on our right to health. The idea behind these 'Statements of Compatibility' with human rights is not stop rights infringing laws being passed, but to make sure everyone understands the impact they might have on the rights of South Australians. One of the great benefits of this type of information being shared with the public at the time a new law is proposed is that we will all being to understand what the law is actually about rather than having to hop off and get a law degree just to understand what might be about to change. It would also help us work out who to talk to when it comes to making sure we understand how the law will impact certain groups in our community, and whether it might have any unintended consequences.

Adopting the practice of introducing Bills, regulations and legislative instruments with a Statement of Compatibility with human rights could also be an important component of a South Australian human rights framework that would complement the work of existing parliamentary committees who have the job of looking into proposed laws in more detail. Statements of Compatibility could also: improve the human rights literacy of the Parliament, Ministerial officers, parliamentary counsel and instructing departments by providing incentives to clearly and consistently articulate the content of human rights principles, including exceptions that apply to their protection and implementation; provide an important resource for all parliamentarians to access to help improve the collective understanding of the purpose and impact of the Bill or regulation; and provide a basis for the South Australian community to reflect upon any gaps in human rights protection in this State.

Introducing the requirement to table new laws with a Statement of Compatibility means that we would need to think about things like: Which rights should form the basis of the compatibility statement? Who is responsible for preparing the statement of compatibility? And what test should be applied to determining compatibility? Luckily we have some good examples to consider from around Australia, including the recent Human Rights Act 2019 (Qld) that might help provide a model for us to consider in SA.

A range of options for South Australia to consider include:

a. making minor amendments to the Parliamentary Committees Act 1991 (SA) to ensure that all committees could access, review and consider Statements of Compatibility with Human Rights as part of their existing functions (this could be framed in a similar way to Human Rights Act 2019 (Qld) s39 which provides that Statements of Compatibility accompanying Queensland Bills are to be scrutinised and considered by relevant ‘portfolio’ committees who then report back to Parliament; or

b. establishing a specific Human Rights Committee under the Parliamentary Committees Act 1991 (SA) with the specific task of reviewing Statements of Compatibility of Human Rights and reporting back to parliament, similar to the federal Parliamentary Joint Committee on Human Rights. Such a committee could have membership from both the House of Assembly and the Legislative Council and be supported by a specialist legal advisor; or

c. introducing human rights legislation in South Australia that deals with not just the parliamentary scrutiny components of rights protection, but also sets out obligations and functions for other branches of government. A model for such legislation has been outlined recently by the Law Council of Australia.

Of course, it remains possible that even with a requirement to introduce laws with a Statement of Compatibility, individual rights could still be infringed or abrogated by our lawmakers. The statements themselves would not have any legal power to prevent a law being passed. But research conducted into the use of such statements elsewhere suggests some reasons for hope - particularly when it comes to improving the Parliament's and the public's understanding of human rights principles and how they work in practice.

The Rights Resource Network would love to know your thoughts on this idea and whether you think introducing Statements of Compatibility is a good idea or not. Become a member today and be part of the action!


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