Commission guidelines for the examination of enactments under Commission legislation

1. THE LEGISLATIVE POSITION

1. The Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) provides that one of the functions of the Commission is to examine enactments for the purpose of ascertaining whether the enactments are inconsistent with or contrary to any human right. [1] ” Each of the SDA [2] and the DDA [3] include a similar provision but require any such examination by the Commission to consider the objects of the Act. Each provision allows the Commission to report to the Minister the results of any such examination.

2. In each case, that provision also empowers the Commission to examine proposed enactments at the request of the Minister to ascertain whether they would be inconsistent with or contrary to any human right (under the AHRC Act) or with the objects of the SDA or DDA (under those Acts).

3. The RDA contains no such provision. However, in addition to the above provision, section 46C(1)(d) of the AHRC Act confers on the Commission the power to examine enactments, and proposed enactments, for the purpose of ascertaining whether they recognise and protect the human rights of Aboriginal persons and Torres Strait Islanders, and to report to the Minister the results of any such examination.

4. The AHRC Act directs that the function is to be performed by the Aboriginal and Torres Strait Islander Social Justice Commissioner (“Social Justice Commissioner”) on behalf of the Commission. [4]

5. The Social Justice Commissioner has the power to examine proposed enactments without a request from the Minister. Also, section 46C(1)(d) of the AHRC Act describes the function to be performed by the Social Justice Commissioner as examining enactments for the purpose of ascertaining whether "…they recognise and protect the human rights of Aboriginal persons and Torres Strait Islanders…" This is in contrast to the Commission functions cited above which provide for an examination of enactments for the purpose of ascertaining whether they are "…inconsistent with or contrary to…” any human right or the objects of the relevant Act.

6. The AHRC Act therefore confers a broader function directly on the Social Justice Commissioner on behalf of the Commission than is conferred upon the Commission in the other provisions cited.

7. In each case, “enactments” are taken to mean enactments of the Commonwealth or a Territory (but not including the Northern Territory or the ACT). [5]

 

2. PROCESSES FOR CONSIDERING ENACTMENTS FOR EXAMINATION, FOR EXAMINING ENACTMENTS AND FOR REPORTING TO THE MINISTER

A. Where a complaint is received that deals with conduct under an enactment

1. All complaints are assessed on receipt by the Director of Complaint Handling. Those that raise issues that do not concern an “act or practice” but concern conduct under an enactment are identified and recommended for termination by the President as being not unlawful. [6]

2. If the complaint is terminated, the Legal Section is notified by the relevant Complaint Team Leader that the complaint raises issues that may justify the assessment of the enactment.

3. The Legal Section prepares a Commission Paper outlining an assessment of the enactment. Matters to be taken into account in assessing whether an enactment is suitable for examination include

  • whether the terms of the enactment could breach any human right or be inconsistent with the objects of the SDA or DDA;
  • whether the effects of the enactment could result in the breach of any human rights or inconsistency with the objects of the SDA or the DDA;
  • in the case of the Social Justice Commissioner, whether the terms or effect of the enactment or proposed enactment could fail to recognise and protect the human rights of Aboriginal persons and Torres Strait Islanders;
  • whether legislative amendment could significantly address any breach or failure discovered during an examination.

4. The Legal Section submits the Commission Paper to the Commission, with copies to Policy Unit Managers and Complaint Team Leaders. In the event that the Commission wishes to proceed with an examination of an enactment then, apart from those functions that must be performed by the Social Justice Commissioner, the Commission will nominate a Delegate to lead the examination. Co-ordination of the examination will be carried out by the Legal Section.

5. The particular processes for examination in each case will differ. Section 14 of the AHRC Act allows the Commission to make an examination “in such manner as it thinks fit”. Depending on the complexity of, and public interest in, the enactment and surrounding issues, the examination may be

  • a brief inquiry done entirely on the papers focussing on the terms of the legislation alone without public submission;
  • done entirely on the papers where limited written submissions are sought from targeted stakeholders;
  • a more public inquiry where written submissions from any interested parties are sought, similar to the Pregnancy inquiry;
  • a substantial inquiry where the Commission decides to seek public submissions, call witnesses and use the full range of Commission powers, similar to the Stolen Children inquiry.

6. In each case, a draft report is prepared by the Legal Section and provided to the Commission for consideration through the Delegate leading the examination.

7. The report is in all cases provided to the Attorney-General.

8. Where the examination was made under section 11(1)(e) of AHRC Act, the Attorney-General is required, under section 46, to table the report in Parliament within 15 sitting days. The report should be prepared in the usual manner and format for tabling documents, and at least in sufficient quantities to allow for tabling. Preparation of the report and for tabling should take into account the Commission “Guidelines on Publication Policy” and “Guidelines on Dissemination of Commission Reports” available on the Commission Intranet. The Commission may also consider publishing the report more widely, in which case the publication guidelines should also be followed.

9. Where examinations are undertaken under the SDA, the DDA or by the Social Justice Commissioner under section 46C(1)(d) of AHRC Act, the Attorney-General is not required to table the reports. However, the Commission may decide to publish the report. The decision whether to publish the report and the preparation of any report should take into account the Commission's “Guidelines on Publication Policy” and “Guidelines on Dissemination of Commission Reports” available on the Commission Intranet.

B. Where no complaint is received - Own motion examinations and requests from the Minister

1. The Commission may consider examining any enactment of its own motion, and the Social Justice Commissioner may consider examining any enactment or proposed enactment. Consideration may follow requests to do so from members of the public. The Attorney-General may refer any proposed enactment for examination by the Commission.

2. In any such case, the Commission refers the enactment or proposed enactment to the Legal Section for preparation of the Commission Paper set out in point 2A(3) above.

3. The processes from point 2A(4) above are then followed.


1. s. 11(1)(e).
2. s. 48(1)(f).
3. s. 67(1)(i).
4. s. 46C(2).
5. s. 3 AHRC Act; s. 4 SDA; s. 4 DDA.
6. Under s. 46PH(1)(a) AHRC Act.

Last updated August 6, 2009.