Embedding UNDRIP compliance within the Parliamentary Joint Committee on Human Rights
05.05.25
This post is part of a series providing a detailed and critical examination of a number of proposals directed at giving effect to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in the Australian context.
Why do parliamentary committees scrutinise laws in the Australian parliamentary system?
Scrutiny of laws is an important function of the legislature or parliament. Using parliamentary committees (smaller groups of elected members of parliament) to undertake scrutiny of the new laws proposed by government, or the actions or powers used by the executive is an important component of both responsible government derived from our Westminster system and of the concept of separation of powers. It is designed to improve the quality of the law-making process by helping to identify mistakes, raise the alarm about concerning proposals and to provide the reset of the parliament and the broader community with more information about the laws being proposed or decisions being made.
Some say the parliamentary committees that do this scrutiny work - such as the Senate Standing Committee for the Scrutiny of Bills or the Senate Standing Committee for the Scrutiny of Delegated Legislation in the Australian Senate - are technical committees looking to see what technical problems might exist in proposed laws that make them unclear, or that unduly trespass on rights or liberties or that unduly extend executive administrative power. The scrutiny criteria applied by these committees is either set out in the Standing Orders of the Parliament, or in the case of the Parliamentary Joint Committee of Human Rights (PJCHR) in a specific piece of legislation.
The membership of the scrutiny committees is also prescribed, but ultimately determined by the parliament itself. The Scrutiny of Bills Committee, for example, has six senators, three members nominated by the Government, and three nominated by non-government parties.
These scrutiny committees have a proud history of adopting a non-partisan, consensus-based approach to applying their scrutiny criteria that seeks to avoid evaluating the ‘policy merits’ of a bill or regulation. These committees have a practice of ‘drawing attention’ to an aspect of the proposed law that breaches one of its scrutiny criteria through correspondence with the proponent Minister and through their Monitor or Digest Reports, and then drawing the Minister’s response to the attention of the Senate in their subsequent reports. The Scrutiny Committees also track Ministerial responses on their websites, drawing attention to outstanding correspondence.
Others see the role of these committees as closer to a forum to develop and give meaning to fundamental democratic norms and values including the rule of law. This is because this scrutiny work demands that the members of parliament who are part of these committees understand what these principles or norms mean and practice applying them to complex examples that arise within the parliament.
What impact does parliamentary scrutiny have on lawmaking?
Parliamentary committees cannot directly change the content of the law: only the Parliament itself can do that through proposing an amendment and voting on the change in the parliamentary chamber. In fact, there is nothing to stop a Minister or a government completely ignoring the recommendations of parliamentary committees, or being very open about the fact that they are intending to a make a law that offends the human rights or rule of law criteria these committees use to evaluate laws. However, the parliamentary committee scrutiny process at least means that this type of brazen rights-abrogating law-making is done out in the open – and in full knowledge of the relevant Minister, the rest of the Parliament and the broader community. It puts everyone on notice that introducing rights- breaching laws will result in ‘alarm raising’ by the scrutiny committee, even if the Committee cannot stop these types of laws being made.
There are examples of scrutiny committees having an influence on the content of the law, for example when a parliamentarian introduces an amendment that responds to or refers to a scrutiny committee’s concerns or recommendations, or when a Minister makes changes to the explanatory material accompanying a bill. The Delegated Legislation Committee can also suggest that the Parliament use the disallowance process to oppose certain types of delegated legislation in whole or in part.
These examples are relatively rare. More striking is the behind the scenes impact these committees can have. This is because the reports of these scrutiny committees inform the work of parliamentary drafters, public servants, policy makers and other organisations interested in developing and designing laws.
The work of the scrutiny committees provides templates, examples and guidelines for future parliamentarians to follow when seeking to craft a new law that involves the use of government power or restriction of individual liberty.
The work of these scrutiny committees also provides important foundation for more deliberative discussions on controversial or contentious policy issues. This is because the reports of the scrutiny committees summarise the impact of the law on people's rights, and explain the powers that will be used by government and sound the alarm about parts of the law that might have unintended or disproportionate impacts or consequences.
What kind of rights scrutiny work does the Parliamentary Joint Committee on Human Rights do?
The Parliamentary Joint Committee on Human Rights (PJCHR) came about following debates in Australia about whether we should enact a federal Human Rights Act. It’s functions, membership and scrutiny criteria are set out in the Human Rights (Parliamentary Scrutiny) Act 2010 (Cth). At the time the PJCHR was established, the government decided not to enact a Human Rights Act but instead established a committee that was to look at all proposed laws and examine them against the list of rights that comes from the seven human rights treaties that Australia has signed. It also set up a process whereby the proponents of new laws have to introduce their proposal with a statement of compatibility against this long list of internationally protected human rights.
This process of assessment of proposals against human rights criteria by both the government and then the parliament promised to help create a culture of rights where parliamentarians and public servants thought carefully about what specific human rights demand of them, and to explain how they were protecting promoting or limiting human rights with their proposals. This was also designed to increase human rights literacy across all aspects of public service for example by building a sense of familiarity with concepts like indivisibility of different human rights progressive realisation of social economic and cultural rights and concepts of proportionality for those rights that can be justifiably limited.
In practice the PJCHR has at times struggled to have a clear impact on the content of proposed laws. Certainly it is common for the work of the PJCHR to be ignored, or for Ministers or private Members to propose laws that limit or even breach human rights. Sometimes this is actively acknowledged in the Statement of Compatibility accompanying the proposal, or sometimes a justification for a rights limitation is given, for example, rights limiting provisions have been justified on grounds of protecting ‘public safety’. As noted above, whilst the PJCHR can play an important role in drawing parliamentary and public attention to any aspects of the law that fail to align with human rights standards, it cannot prevent the parliament from enacting a rights-limiting law.
It is also common for the reports of the PJCHR to come too late for political debates on proposals and not all public servants or proponents of bills take their responsibilities under this system seriously. However the reports of the PJCHR have informed the work of other parliamentary committees and other contributors to debates on law reform. We have many examples now of what rights compliant provisions might look like in a range of context, for example on the handling of personal information or on the way we might make decisions about somebody's eligibility for a certain scheme or how we might ensure fair process in government decision making.
We also have a reason now to connect in with human rights jurisprudence and practise occurring in other jurisdictions and at the international level to help us better understand the content of the rights that we've signed up to in Australia and how they might play out in the lawmaking process.
How could the United Nations Declaration on the Rights of Indigenous Peoples be included within the scrutiny criteria of the Parliamentary Joint Committee on Human Rights?
On 29 March 2022, the Senate referred an inquiry into the application of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Australia to the Senate Legal and Constitutional Affairs References Committee for inquiry and report by 15 September 2022. Due to the 2022 Federal Election, the Senate Committee was unable to progress its inquiry and 2 August 2022, the Senate referred the inquiry into the application of UNDRIP in Australia to the Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs. When this Committee issued its report in November 2023, it included the following recommendation:
that the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) be amended to include the United Nations Declaration on the Rights of Indigenous Peoples in the definition of ‘human rights’, so that it be formally considered by the Parliamentary Joint Committee on Human Rights when scrutinising legislation [Recommendation 6].
The list of rights that forms the PJCHRs scrutiny criteria comes from the treaties that Australia has signed and does not specifically include the UNDRIP. However, the PJCHR has at different stages used the UNDRIP as an interpretive tool to provide clarification about the content of human rights standards under international law and how they apply to the lives and experiences of First Nations peoples.
If the principles contained within the UNDRIP were formally included within the scrutiny mandate of the PJCHR it could provide a mechanism for lawmakers and policy makers to consider the impact of proposed laws on the rights and lives of First Peoples and uphold Australia's international human rights commitments in a more fulsome, practicable way. It would deepen and reshape the rights inquiries and questions that are currently asked of proponents of new laws. It could be used to demand the development of a broader evidence base to support claims of rights compliance, that could in turn strengthen the overall quality of the human rights scrutiny occurring within the Australian Parliament.
However what we've learned from the older scrutiny committees is that in order to have this kind of culture building or norm building impact on the way that we think about lawmaking policy making and accountability for executive power it is imperative that the members of the committee have a strong understanding and connection to the scrutiny criteria they're applying.
There is no reason in theory why the UNDRIP could not be well understood by members of parliament and public servants. In fact, the UNDRIP can actually help give practical meaning and content to some of the other rights that already fall within the scrutiny mandate of a number of parliamentary committees. However there are also aspects of the Declaration that could present conceptual challenges for many MPs and public servants. For example the UNDRIP has a strong focus on collective rights and centres ideas of free prior and informed consent. These concepts are familiar to many human rights scholars and advocates but would require some unpacking for members of the committee and public servants tasked with assessing compatibility of their proposals against these standards.
There are important incentives for encouraging members of parliament and public servants to become familiar with these ideas many of which we've already heard about. The UNDRIP has the potential to deliver a range of ‘upstream’ benefits to ensure we don’t encounter expensive, harmful ‘downstream problems’. It does this by checking that we don’t introduce laws that (1) invest governments with unconstrained power and (2) don’t ignore the right of First Peoples to actively contribute to the development of laws that seek to either secure their dignity or regulate their freedom. This shouldn’t be controversial or strange in the Australian system – but rather a continuation and deepening of what the scrutiny committee have – or should have been - doing for decades.
So I have a lot of hope about the potential benefits that will derive from the inclusion of the UNDRIP within the scrutiny mandate of the PJCHR, but we must think carefully about how we intend to measure the impact of such a change. The ability of any parliamentary committee to change the content of the law or to change a specific outcome for a group of people is limited. Their true value lies in their potential to shift cultures and to create or sustain norms. For this type of impact to be realised investment needs to be made in providing the right kinds of incentives for parliamentarians and public servants to learn about and practise the application of the UNDRIP to propose laws. Those incentives could come through the enactment of Human Rights Act at the federal level that includes the UNDRIP, or through the codification of UNDRIP principles in some other form, or through some other framework that mandates ongoing high quality human rights training among those cohorts.
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Associate Professor Sarah Moulds (UniSA) is an expert in parliamentary process, and has done a number of critical analyses of how effectively the parliamentary committee system in Australia works for the protection of rights.
