About the PJCHR

The Commonwealth Parliamentary Joint Committee on Human Rights (PJCHR) is an Australian first. While the ACT and Victoria broke new ground by introducing human rights charters, the Commonwealth chose instead to pioneer a human rights oversight model that sidestepped the baggage of a bill of rights with its prospect of meddling judges. Its centrepiece is a parliamentary joint committee dedicated exclusively to human rights scrutiny. The PJCHR has been modelled in part on its UK counterpart but a significant difference is the breadth of its mandate, which expressly covers a far more comprehensive set of rights.

The PJCHR draws its mandate from (and owes its existence to) the Human Rights (Parliamentary Scrutiny) Act 2011, which was introduced under the stewardship of the then Attorney-General, Robert McClelland.

In a nutshell, the PJCHR’s functions are to:

• examine bills and legislative instruments for compatibility with human rights (the equivalent ACT committee does not do human rights scrutiny of legislative instruments, while the Victorian SARC may report on incompatible regulations (but not other delegated legislation) if the contravention is ‘substantial’);
• examine existing Acts for compatibility with human rights (the ACT committee only scrutinises bills and the Victorian SARC must jump through a few hoops before it can look at Acts); and
• undertake inquiries on any human rights matters referred to it by the Attorney-General (what a shame that a succession of AGs (ok, three – as Robert McClelland was no longer the incumbent when the HRPS Act kicked in), have so far declined to exercise this (potentially) intriguing power).

Once done, it is to report its findings to both Houses of Parliament.

The PJCHR is required to do all this examining, inquiring and reporting against the seven (yes, seven) international human rights treaties that Australia has agreed to be bound by. The committee is helped along in its task by the requirement – also introduced by the HRPS Act – for all bills and disallowable legislative instruments to be accompanied by a statement of compatibility, which is to set out the government’s (or proponent’s) view on the compatibility or otherwise of the legislation.

The PJCHR was established on 13 March 2012, when the Senate agreed to a resolution from the House of Representatives, passed on 1 March 2012. The committee’s resolution of appointment* sets out its powers and proceedings – similar to other parliamentary committees, the PJCHR can call for submissions, hold public hearings and examine witnesses when it chooses to. The resolution of appointment also spells out the nuts and bolts relating to the membership of the PJCHR. The HRPS Act requires the 10-member committee to be composed of backbenchers, drawn equally from the House of Representatives and the Senate. The resolution of appointment translates this to mean three government Members and two non-government Members selected from the lower house, and two government Senators and three non-government Senators appointed from the upper house. The government, therefore, does not have a majority on the committee, but the committee must elect a government member as its Chair (and a non-government member as its Deputy).

Early on in the piece, the PJCHR issued a practice note setting out the approach that it would take to fulfilling its mandate:

• The committee views its human rights scrutiny tasks as primarily preventive in nature and directed at minimising risks of new legislation giving rise to breaches of human rights in practice. The committee also considers it has an educative role, which includes raising awareness of legislation that promotes human rights.
• Consistent with the approaches adopted by other human rights committees in other jurisdictions, the committee will test legislation for its potential to be incompatible with human rights, rather than considering whether particular legislative provisions could be open to a human rights compatible interpretation. In other words, the starting point for the committee is whether the legislation could be applied in ways which would breach human rights and not whether a consistent meaning may be found through the application of statutory interpretation principles.
• The committee considers that the inclusion of adequate human rights safeguards in the legislation will often be essential to the development of human rights compatible legislation and practice. The inclusion of safeguards is to ensure a proper guarantee of human rights in practice. The committee observes that human rights case-law has also established that the existence of adequate safeguards will often go directly to the issue of whether the legislation in question is compatible. Safeguards are therefore neither ancillary to compatibility and nor are they merely ‘best practice’ add-ons.
• The committee considers that, where relevant and appropriate, the views of human rights treaty bodies and international and comparative human rights jurisprudence can be useful sources for understanding the nature and scope of the human rights defined in the Human Rights (Parliamentary Scrutiny) Act 2011.
• The committee notes that previously settled drafting conventions and guides are not determinative of human rights compatibility and may now need to be re-assessed for the purposes of developing human rights compatible legislation and practice.

Since its first report in August 2012, the PJCHR has applied this approach to hundreds of bills and thousands of legislative instruments covered in over 25 reports.

More background info will be added to this page as time permits, but you’ll find further details about the PJCHR and its work practices on the committee’s website.

* Update: Unfortunately, the PJCHR appears to have removed the resolution of appointment from its website but you can find the Hansard copy here.

(Further update 8/11/14: The PJCHR’s website now has a link to the Hansard copy of the committee’s resolution of appointment – but oddly, it’s for its predecessor committee. The content of both resolutions is essentially the same, bar some minor differences – eg, para (a) of the previous resolution referred to the nomination of a ‘non-aligned Member’ from the lower house, while the current resolution talks about a ‘minority group or Independent member’. )