Statements of Compatibility
All government and non-government Bills and disallowable legislative instruments within the meaning of section 42 of the Legislation Act 2003 must be accompanied by a Statement of Compatibility. Section 44 of the Act sets out those legislative instruments not subject to disallowance.
What must a Statement of Compatibility contain?
A Statement of Compatibility must contain an assessment of the Bill or legislative instrument's compatibility with the rights and freedoms recognised in the seven core international human rights treaties which Australia has ratified.
What human rights must be considered in preparing a Statement of Compatibility?
Human rights are defined in the Human Rights (Parliamentary Scrutiny) Act 2011 as the rights and freedoms contained in the seven core international human rights treaties to which Australia is a party. These treaties are:
- the International Covenant on Civil and Political Rights (ICCPR)
- the International Covenant on Economic, Social and Cultural Rights (ICESCR)
- the International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
- the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
- the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
- the Convention on the Rights of the Child (CRC)
- the Convention on the Rights of Persons with Disabilities (CRPD).
Must all Bills and disallowable instruments have a Statement of Compatibility?
Statements of Compatibility are required for all Bills and disallowable legislative instruments, regardless of whether or not the provisions impact on human rights.
Who is responsible for preparing the Statement of Compatibility?
For Australian Government Bills, the minister responsible for the Bill is responsible for preparing the Statement of Compatibility. The department developing the Bill will draft the Statement of Compatibility for the approval of the minister.
For non-government Bills, the member introducing the Bill will be responsible for preparing the Statement of Compatibility.
For legislative instruments, the rule-maker (responsible minister, other person or body, or delegate) will be responsible for the preparation of a Statement of Compatibility.
Are Statements of Compatibility required to be in a particular form?
There is no prescribed form for Statements of Compatibility. However the Attorney-General's Department has developed templates which departments can use if their Bill or legislative instrument does, or does not, engage human rights or freedoms which are found on the Statements of Compatibility templates page.
Where can I get assistance to prepare a Statement of Compatibility?
The Attorney-General's Department has developed tools for assessing human rights compatibility that can be used to undertake an initial assessment of the human rights compatibility of a proposed Bill or legislative instrument. The tools can also be used to facilitate the development of policy and legislation which is consistent with human rights. The tools are not a substitute for legal advice on a policy or a legislative proposal.
The tools include a flowchart for assessing human rights compatibility. The flowchart can be found on the tools for assessing human rights compatibility page.
The tools also include a Policy Triggers document to assist in identifying the rights that may be engaged in particular policies or legislation. The Policy Triggers document can be found on the tools for assessing human rights compatibility page.
The Policy Triggers document is designed to be used in conjunction with the Human Rights Guidance Sheets. The guidance sheets set out detailed information about the rights in the seven core international human rights treaties. These guidance sheets will assist in identifying affected rights and provide a reference guide to the human rights standards underlying the assessment.
In addition, there is an information sheet on the general principles for lawfully limiting rights and an information sheet on rights which cannot be limited for any reason. These two information sheets will assist to identify the rights that may be subject to permissible limitations and those rights that cannot be limited.
Agencies may also consult with the Civil Law Unit of the Attorney-General's Department on individual Statements.
What is the process for presenting Statements of Compatibility to Parliament?
A Statement of Compatibility will form part of the explanatory memorandum or the explanatory statement. For legislative instruments, the Statement of Compatibility will be lodged with the Office of Parliamentary Counsel before being tabled in Parliament in accordance with the Legislation Act 2003.
Will a Statement of Compatibility need to be approved by the Attorney-General's Department?
The Attorney-General's Department is not required to clear Statements of Compatibility, but will be available to provide assistance, including legal advice where necessary.
What is the legal status of the Statement of Compatibility?
The Statement of Compatibility is an expression of opinion by the relevant Minister or sponsor of the Bill or by the rule-maker in the case of legislative instruments about the instrument's compatibility with human rights.
It does not limit the ability of Parliament to express a different view. Further, it is not binding on a court or tribunal. However, as with other extrinsic material that has been considered by the Parliament in the passage of legislation or legislative instruments, such as accompanying explanatory memoranda, second reading speeches and Parliamentary Committee reports, a court may refer to extrinsic material to assist in determining the meaning of a provision in the event of ambiguity.