Evans, Simon --- "Improving Human Rights Analysis in the Legislative and Policy Processes" [2005] MelbULawRw 21; (2005) 29(3) Melbourne University Law Review 665

IMPROVING HUMAN RIGHTS ANALYSIS IN THE LEGISLATIVE AND POLICY PROCESSES

SIMON EVANS[∗]

[This article proposes and evaluates two pre-legislative mechanisms designed to improve the protection of human rights in Australia: first, a requirement that executive agencies prepare human rights impact statements in relation to all significant policy proposals, and, second, that an independent executive agency review the quality of these statements. These mechanisms aim to formalise and integrate human rights analysis with the process of developing policy options and to provide independent scrutiny of that analysis. They are a logical extension of the commitment by Australian governments to evidence-based policy-making. They do not disrupt existing institutional responsibilities and competences. They are designed to promote a culture of human rights in the executive branch of government, and they have the potential to further the fundamental democratic objective of assisting Australian legislatures to make their own assessment of the human rights impact of legislative proposals.]

CONTENTS

INTRODUCTION

In this article, I propose and evaluate two mechanisms that could be adopted to improve the protection of human rights in Australia.[1] These mechanisms focus on enhancing the consideration of human rights issues during the process that leads up to the enactment of legislation.[2] They are, first, a requirement that executive agencies prepare human rights impact statements (‘HRISs’) (modelled on existing regulatory impact statements) in relation to all of their significant policy proposals, and second, that an independent executive agency review the quality of these statements. These mechanisms have two principal objectives. First, they aim to formalise and integrate human rights analysis with the process of developing policy options, rather than relegate it to the end of the policy development process when legislation is ready to be introduced into Parliament. Second, through the provision of independent scrutiny, they aim to ensure that the Parliament has the benefit of an appropriately reasoned analysis of the impact of proposed legislation upon human rights, and not just a perfunctory certification that the legislation is (or is not) compatible with human rights, or a low quality analysis of human rights issues prepared as an afterthought by an executive agency that is focused on its ‘core business’.

I focus on pre-legislative mechanisms for improving analysis of human rights issues for two principal reasons. The first is purely pragmatic. This is the area where institutional change is most achievable. It is not likely that any Australian jurisdiction (apart from the Australian Capital Territory and perhaps Victoria) will adopt a judicially enforceable Bill of Rights in the short term.[3] There remain significant concentrations of community opposition to such measures. That opposition creates political costs for those legislators who would pursue Bills of Rights through the legislative (or referendum) process. Those costs may readily outweigh the more diffuse political benefits of supporting a Bill of Rights and may reinforce legislators’ own principled or strategic opposition to them. By contrast, enhancing rights scrutiny within the legislative and policy processes might be possible without investing as much political capital. Such changes would not reallocate institutional power away from the legislature and to the courts to the same extent as a judicially enforceable Bill of Rights. The stakes involved for opponents would therefore be lower.[4] The changes could be achieved less formally and without triggering the same potential veto points that opponents to the enactment a Bill of Rights could attempt to activate. However, such changes would have disadvantages compared with a legislated Bill of Rights. The most significant is that the enhanced rights scrutiny mechanisms proposed here would not be entrenched against an executive determined to override rights and rights-protecting mechanisms. This suggests that scrutiny mechanisms in the legislative and policy processes should not be the only sources of rights protection — but it does not mean that they are without value.

The second reason for this focus reflects a major strand within contemporary scholarly debate about the protection of human rights in democracies. There is a longstanding controversy about whether courts should be able to strike down legislation because it is inconsistent with their interpretation of statements of fundamental rights.[5] That debate draws on a number of subsidiary debates, of which two stand out. First, whether it is consistent with democratic principles for courts as non-representative institutions to exercise the power of judicial review to annul the outputs of representative legislative processes.[6] Second, whether the courts are an appropriate institution for exercising this power, given their composition (a small and homogenous group of lawyers) and procedures (primarily focused on the interpretation of a text and applying it to facts presented by particular litigants).[7]

None of these debates has been resolved to general satisfaction. The debate focused on democratic principle has identified quite pervasive disagreement about which institutional arrangements are consistent with the concept of democracy.[8] The debate focused on institutional capacity has revealed the need for more concrete analysis of particular institutional processes.[9] What the debates have suggested, however, is that the courts need not be the exclusive site for deliberation about whether legislation is consistent with human rights standards. The institutions involved in the legislative and policy processes have both a legitimate role and the capacity to consider rights issues. Even if the imperfections of these processes were addressed by a judicially enforceable Bill of Rights, there would remain value in enhancing the performance of legislative institutions when considering rights issues.

The remainder of this article proceeds in four parts. In Part II, I introduce a model of the legislative process, which is then used to describe and evaluate the current mechanisms for considering rights issues in the course of the legislative process. Those are increasingly sophisticated but are not well integrated with the policy process. In Part III, I contrast those mechanisms with the more elaborate means used to analyse another set of complex and contested issues, namely, the economic effects of regulation on business and competition. Those mechanisms are more fully integrated into the policy process and include independent executive review of the overall quality of the economic analysis. Part III also notes moves to adopt similar methods for analysing the impact of proposals that affect families. In Part IV, I propose that the mechanisms used in the business and competition context should be adapted to enhance the consideration of rights issues in the legislative process. Finally, in Part V, I argue that these proposals achieve the objectives of formalising and integrating human rights analysis into the policy process and subjecting that analysis to appropriate independent review.

II HUMAN RIGHTS IN THE LEGISLATIVE AND POLICY PROCESSES

The focus of this article is on mechanisms for enhancing the consideration of human rights issues during the process that leads up to the enactment of legislation. What is that process and what human rights scrutiny mechanisms currently exist?

A The Legislative Process

There are many ways of describing or conceptualising the legislative process. One can choose different start and end points and different levels of abstraction. The choices are important; how one conceptualises the legislative process affects the range of mechanisms that can be used in connection with that process for enhancing the protection of human rights.

Consider, at one extreme, a ‘black box’ model of the legislative process in which its internal workings are invisible or off limits. It is not possible to enhance the consideration of human rights issues during the stages that lead up to the enactment of legislation using this model. The model stipulates that the process is closed to outside influences. Virtually the only option for enhancing the protection of human rights on this model is to adopt some form of post-enactment judicial or administrative review of the outputs of the legislative process against standards articulated in a Bill of Rights.

That is an extreme model. A more common model conceptualises the legislative process in roughly these terms:

Stage 1 Introduction of proposed legislation into Parliament.

Stage 2 Scrutiny of proposed legislation by parliamentary committees.

Stage 3 Parliamentary debate on proposed legislation.

Stage 4 Enactment of legislation.

Again, this model partly determines the mechanisms that can be used to enhance the consideration of human rights issues during the process that leads up to the enactment of legislation. It directs attention to parliamentary debate and scrutiny by parliamentary committees as sites for such attention.[10] There is a growing and quite valuable literature that analyses the potential for these sites, in particular scrutiny committees, to contribute to consideration of human rights issues.[11] As a result, some of the possible strengths and weaknesses of these committees (especially in comparison with those responsible for scrutiny of delegated legislation) have been identified.[12] Winterton has identified a number of these weaknesses, including

time pressure; lack of expertise, only partly ameliorated by the employment of external experts; the difficulty of building up a coherent body of jurisprudence over time; and the ultimate subjection of [their] work to the vicissitudes of

politics.[13]

In addition, such committees operate under even greater epistemic constraints than the courts in assessing the rights impact of (proposed) legislation — in most jurisdictions they rarely hold hearings or receive submissions and as a result their scrutiny is almost inevitably abstract rather than concrete. They approach questions of legislative policy and questions about whether infringements of rights are justified with considerable reticence.[14]

Perhaps the greatest weakness of parliamentary scrutiny committees (and other parliamentary processes) is one rendered invisible by the model of the legislative process set out above. That model obscures the late stage in the legislative process at which scrutiny committees become involved in considering proposed legislation. At the scrutiny stage, the executive has already decided on its policy objectives, the need for legislation to achieve those objectives, the legislative model and the concrete terms of proposed legislation. Perhaps most importantly, the executive has in most cases also publicly committed itself to all of these things, often making it difficult for it to accept changes without losing political face.

A revised model of the legislative process incorporating some of these earlier stages in the process makes this point clearer:[15]

Stage 1 Policy formation, including consultation within and outside government, leading to a proposal to implement policy through

legislation.

Stage 2 Policy approval by minister and/or Cabinet.

Stage 3 Drafting of proposed legislation to give effect to policy.

Stage 4 Proposed legislation approved by Cabinet.

Stage 5 Introduction of proposed legislation into Parliament.

Stage 6 Scrutiny of proposed legislation by parliamentary committees.

Stage 7 Parliamentary debate on proposed legislation.

Stage 8 Enactment of legislation.

Stage 9 Post-enactment review and evaluation of the operation of

legislation.

This revised model recognises the considerable achievements of scrutiny committees in having the government agree to amendments addressing human rights issues — achievements which must be measured in light of the government’s significant political investment in the legislation under scrutiny. Therefore, it may be better to view the primary contribution of scrutiny committees as working indirectly to improve the processes that lead to legislation being introduced into Parliament, rather than as working directly to improve the proposed legislation before such committees. Various commentators have noted how policy formation and approval and legislative drafting take place in the shadow of scrutiny.[16] The committee’s educative role, particularly in those

jurisdictions where the committee collects guidelines for policy-makers and legislative drafters, should not be underestimated, however difficult it is to quantify.[17]

This revised model of the legislative process suggests two further, related, points. First, it makes the point (if it needs making at all) that the legislative process is dominated by the executive.[18] Policy formulation occurs principally in departments and ministerial offices. Policies are approved by Cabinet or ministers. Proposed legislation is drafted by officials on instructions from departments or ministers. Once drafted, it is introduced into Parliament by the executive, at a time and in a manner chosen to suit its purposes. Debate in the lower house is in accordance with the executive’s timetable and subject to its control. Often the executive can choose when to bring into effect legislation that has been enacted by the Parliament.

Second, it suggests a small but significant reconceptualisation of the problem of human rights protection by Australian institutions. To this point, the problem has been predominantly conceptualised as enhancing the protection of human rights against the effects of legislation. The underlying, unstated, question has been similar to that considered by scrutiny committees and courts performing judicial review under Bills of Rights: ‘Does the (proposed) legislation trespass unduly on individual rights?’ This is an important question. However, it is an excessively narrow one. It excludes at least three things that contribute to the overall human rights position:

• government action that takes forms other than legislation;
• government inaction (or a government decision not to act); and
• non-government action (which again may involve a government decision not to act).

An approach to the problem of human rights protection that focuses only on legislation and the legislative process thus ignores the potential impact upon human rights of the government’s decision not to act or to use regulatory tools other than legislation. To capture the effects of inaction or these other regulatory tools on the overall human rights position it is necessary to widen the focus beyond the legislative process. This can be done by reconceptualising the legislative process as a particular, specialised form of the public policy process. Legislation is just one of many possible regulatory tools, and analysis of human rights issues in the legislative process is just one component of the analysis of human rights issues in the wider public policy process. This reconceptualisation makes it possible to design and implement integrated mechanisms for human rights analysis that encompass non-legislative government action, government inaction and non-government action, as well as legislation.

B The Policy Process

There are many ways of conceptualising the public policy process. Here I will follow the influential (albeit controversial) representation proposed by Bridgman and Davis.[19] They describe eight overlapping steps in the policy cycle: departments identify issues that may require government action; policy analysis provides information for decision-makers; this leads to a choice of policy instruments; policy analysis is tested through consultation with departments and stakeholders; emerging policy has to be coordinated across the whole of government; eventually Cabinet makes a decision to implement a policy (or not to do so); the policy is then implemented and the implementation evaluated. Evaluation may lead to issues being identified and the cycle restarting.

The relationship between the policy cycle and the legislative process is clear enough. Legislation is one possible instrument that may be chosen for implementing policy developed through a policy cycle. (Other instruments include setting non-binding standards and codes, engaging in advocacy, providing information, entering contracts and spending money.) Compared with Bridgman and Davis’ model of the policy cycle, the expanded nine-step model presented above compresses the parts of the process preceding approval by Cabinet and expands the steps involved in implementation.

Table 1: The Policy Cycle

This comparison highlights the extent to which governmental processes that may ultimately bear on human rights occur prior to the point at which legislation is introduced into Parliament, and that those processes may not in fact lead to legislation being introduced. The conceptual framework provided by Bridgman and Davis reveals the need to focus not just on legislative and pre-legislative assessment of human rights impact but on the whole range of government policy decisions that may affect human rights.

At present, very few mechanisms exist in Australia that provide for systematic consideration of human rights issues at stages in the policy process prior to parliamentary scrutiny.

Outside Queensland and the Australian Capital Territory, little explicit and systematic attention is required to be given to human rights issues when formulating and approving policy and drafting legislation. As the New South Wales Standing Committee on Law and Justice wrote in its report, A NSW Bill of Rights: ‘Legislation is prepared within bureaucracies without any measurement against human rights standards’.[20] Outside Queensland and the Australian Capital Territory,[21] no legislation and none of the publicly available[22] Cabinet Handbooks and Legislation Handbooks require officials or ministers to consider rights issues at the policy formation or approval stages for primary legislation.[23] So, for example, the Commonwealth Legislation Handbook requires Cabinet approval for all significant policy proposals involving legislation, including any such proposal which:

1. represents a significant or strategically important policy initiative or commitment;
2. involves new expenditure or will have a significant impact on revenue;
3. is sensitive or controversial (whether from the perspective of Parliament or interest groups or Commonwealth/state relations); or
4. has significant implications for other portfolios or is not agreed to by all interested portfolios ...[24]

It does not, however, single out policy proposals with a rights impact for Cabinet consideration. (Nevertheless, it recommends that ‘rules which have a significant impact on individual rights and liberties’[25] and ‘provisions conferring enforceable rights on citizens or organisations’ be implemented through primary legislation rather than delegated legislation.)[26] Again at Commonwealth level, there are limited requirements for consultation, within government only, on rights issues at the drafting stage; but not at the earlier policy formation stage when it would be more useful.[27] For example, the Commonwealth Legislation Handbook requires that the Attorney-General’s Department ‘be consulted on proposed provisions that may be inconsistent with, or contrary to, an international instrument relating to human rights’ and notes specifically the International Covenant on Civil and Political Rights[28] and the ‘instruments dealing with discrimination on the ground of sex, race or national or ethnic origin’ as set out in the Schedules to domestic legislation.[29] However, the Handbook does not specify the consequences of any such inconsistency; in particular, it does not raise the bar for approval of proposed provisions that are inconsistent with international rights instruments.

There are no formal requirements that government consult stakeholders in relation to rights issues, although s 11(1)(e) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘HREOC Act’) confers on the Commission the function of

examin[ing] enactments, and (when requested to do so by the Minister) proposed enactments, for the purpose of ascertaining whether the enactments or proposed enactments, as the case may be, are, or would be, inconsistent with or contrary to any human right, and to report to the Minister the results of any such examination.[30]

The Commission does not have a standing brief to consider proposed enactments but must depend on the request of the Minister, who is not obliged to pay any special heed to the advice he or she receives. Its essentially ad hoc interventions,[31] on occasions determined by the Minister, do not give the Commission a regular, formal involvement in the legislative process.[32] It is not apparent how often the Minister requests such examinations. The Commission’s annual reports evince a tendency to downplay, or at least not highlight, this aspect of its functions. Nonetheless, there appears to be some pressure for the Minister to make such requests — during the second reading speech for the Criminal Code Amendment (Trafficking in Persons Offences) Bill 2004 (Cth), Senator Joseph Ludwig criticised the government for, among other things, failing to request comment from the Commission on either the exposure draft or the Bill itself.[33]

Queensland is an exception to this lack of attention to human rights issues in the policy process.[34] Cabinet submissions are required to identify, and seek Cabinet approval for, departures from fundamental legislative principles (or ‘FLPs’).[35] Legislative drafters must consider whether proposed legislation is consistent with Australia’s international obligations and fundamental legislative principles set out in the Legislative Standards Act 1992 (Qld).[36] The Office of Queensland Parliamentary Counsel works to ensure conformity with fundamental principles by drafting a ‘fundamental legislat[ive] principles standard designed as an information document for all persons preparing legislation to inform them in particular of the views of the Scrutiny of Legislation Committee’;[37] advising departments on fundamental legislative principles; and educating departments ‘to encourage compliance with FLPs by developing provisions that achieve both policy objectives and compliance with the principles.’[38]

The Australian Capital Territory also requires that human rights be considered to some extent during the policy process. Departments are encouraged to consult with the Bill of Rights Unit in the Department of Justice and Community Safety early in the policy process.[39] Although the Australian Capital Territory Human Rights Commissioner does not have any express statutory role in the process at this stage, it appears that the ‘commissioner has ... understood that [reporting on proposed enactments] may be at least a component of an exercise’[40] of her function to ‘advise the Attorney-General on anything relevant to the operation’ of the Act.[41] In practice, she reports:

The number of Cabinet Submissions in the ACT is high, including not only Bills, but also policy proposals that may lead to legislative implementation. Unlike most other human rights agencies in Australia I am given access to relevant draft Cabinet Submissions and in some cases my opinion on human rights compatibility issues in draft Bills, such as enabling emergency [electroconvulsive therapy], may support the Bill being released as an exposure draft to enable further community consultation.[42]

All proposals that Cabinet give in principle support to legislation must contain a paragraph that identifies the human rights impact of the proposal:

The paragraph should identify which human rights issues the bill raises; whether the Department has advice and whether the proposal can be developed consistently with the [Human Rights Act]. It is not necessary to provide detailed analysis of the proposed bill and all human rights law issues.[43]

Departments are required to seek advice from the Bill of Rights Unit on the compatibility of legislation during the drafting process. The Unit advises the Attorney-General whether each government Bill is compatible with the Act and prepares the Compatibility Statement that the Attorney-General is required to present with each Bill.[44] If the Bill is not compatible with the Act, it may still proceed to Cabinet for final approval, but a full submission on the compatibility issues is required. Regardless of whether or not the Bill is compatible with the Act, the Cabinet submission seeking approval to proceed with the Bill as drafted ‘must include a recommendation that Cabinet note the Compatibility Statement.’[45] In practice this statement is unreasoned and generally only one sentence long,[46] although recently the Attorney-General has presented a compatibility statement to the Australian Capital Territory Legislative Assembly supported by a substantial set of reasons.[47]

In summary, then, human rights issues are considered in a largely unsystematic fashion at early stages of the policy process in most Australian jurisdictions, presenting the risk that decisions about how to pursue policy objectives are taken without adequate analysis of their human rights implications. It is necessary, therefore, to ask what mechanisms might be adopted to improve the attention given to human rights issues at early stages of the policy process.

III REGULATORY IMPACT STATEMENTS AND THE POLICY PROCESS

In this Part, in order to answer the question just posed, I first turn away from the existing mechanisms for analysing human rights issues in the policy process. Instead, I consider the existing mechanisms for analysing a very different set of issues — the impact of policy proposals on business and competition. These mechanisms are well established and broadly accepted in Australian government, notwithstanding that they subject regulatory proposals to independent review against controversial criteria. I will argue later that they can and should be adapted to the human rights context to improve the attention given to human rights issues at early stages of the policy process.

A Regulatory Impact Statements

In 1986, the Commonwealth government introduced a requirement that all legislative proposals that affect business be accompanied by a Regulatory Impact Statement (‘RIS’) that assesses the costs and benefits of the proposal.[48] This requirement was expanded, and compliance mechanisms were established, in 1997 as part of the Coalition government’s commitment to ‘minimise the burden of regulation on business’[49] and to foster a change in the culture of regulatory agencies necessary to achieve that commitment.[50] A RIS is now required for all regulatory proposals or reviews which have a ‘direct or significant indirect effect on business or restrict competition.’[51] A RIS is now also required for all Cabinet submissions that affect small business.[52] The requisite content has also increased; they are now required to include an assessment of ecologically sustainable development impacts and a cost recovery statement.[53]

The broader rationale for requiring a RIS derives from a conviction that they ‘improve government decision-making processes by ensuring that all relevant information is presented to the decision maker.’[54] By ‘ensur[ing] that departments and agencies fully consider the costs and benefits of all viable alternatives’ it becomes possible to ‘choos[e] the alternative with the maximum positive impact’.[55] In other words, the RIS process assumes that policy-making is a rational and systematic process and that improving the process improves the outcomes of that process:

Preparation of a Regulation Impact Statement (RIS) is a critical feature of the regulation making process, primarily because doing so formalises and evidences the steps that should be taken in policy formulation. It helps to ensure that options to address a perceived policy problem are canvassed in a systematic, objective and transparent manner, with options ranked according to their net economic and social benefits. The RIS embodies this analytical process.[56]

As such, it is a local manifestation of an international movement towards evidence-based regulation, and in particular the quantification of regulatory costs and benefits.[57] A further rationale sometimes noted is that ‘after the decision is made, the RIS is tabled in Parliament or may be published elsewhere, providing an open and transparent account of that decision.’[58]

The RIS process, and the content required in RISs, follow a

rational–comprehensive model of policy-making, rather than a model that emphasises consensus or political horse-trading.[59] RISs are required to include a systematic analysis of the mechanisms by which the policy objectives could be achieved. The various mechanisms must be ranked ‘according to the net economic, social and environmental benefits.’[60] The basic RIS framework has seven elements:[61]

1. The RIS must identify ‘the problem or issues which give rise to the need for action’[62] (for example, a ‘social, environmental or equity goal, or ... an economic or market failure problem’).[63]
2. It must identify the desired objective or objectives of the regulation in relation to the problem or issues previously identified.[64]
3. It must identify the regulatory and non-regulatory options (or policy instruments) that might be employed to achieve the desired objective or objectives.[65]
4. It must include ‘an assessment of the impact (costs and benefits) on consumers, business, government and the community of each option’.[66] This is the main section of a RIS. The cost–benefit analysis ‘should be comprehensive and include all benefits and costs, not just those of a financial nature’.[67] Intangible and non-monetary costs and benefits should be assessed (examples given are ‘possible changes in environmental amenity, health and safety outcomes’).[68] Nonetheless, there is a clear preference for the use of quantitative measures, specifically economic measures, of costs and benefits in this process and a clear emphasis on financial costs and benefits.[69] Costs and benefits should be quantified or estimation techniques should be used.[70] Only ‘[w]here it is not possible to prepare a quantitative estimate’ should ‘a qualitative assessment of costs and benefits ... be undertaken’.[71] There is a general presumption against regulation and an onus on the proponent of regulation;[72] some costs — specifically restrictions of competition — should only be recommended if ‘the desired objective can be achieved only by restricting competition’.[73]
5. It must include a ‘consultation statement’ that identifies the extent of the consultation with those who would be affected by the proposed regulation and summarises their views.[74]
6. It must identify a ‘recommended option’ and state why it was chosen over the other options.[75]
7. It must describe a ‘strategy to implement and review the preferred option’,[76] including administration arrangements and details of an ongoing review process to ensure that the regulation is removed when it is no longer justified.[77]

A RIS must be developed once it is decided that regulation may be necessary but before the policy decision to regulate is taken.[78] The draft RIS is circulated to other departments and agencies with the policy proposal at the coordination and consultation stage; it must accompany the Cabinet submission seeking approval for the legislation; and it is included in the Explanatory Memorandum when proposed legislation is introduced into the Parliament.[79]

B Review of Regulatory Impact Statements

Requiring that policy proposals, and in particular legislative proposals, be accompanied by rights impact statements would not be unprecedented. Such a requirement exists in one form or another in a number of jurisdictions outside Australia,[80] and similar requirements for delegated legislation can be found in a number of Australian jurisdictions.[81] It is not necessary to draw attention to regulatory impact statements to make the case for rights impact statements (although regulatory impact statements do provide a useful model for reasoned rights impact statements as opposed to conclusive certifications of compatibility with rights). What is more significant about the Commonwealth RIS process for the purposes of this section is the integration with the policy process and the quality assurance process that the Office of Regulation Review (‘ORR’) performs in relation to RISs.

The ORR is an autonomous unit within the Productivity Commission.[82] Its two principal activities are to ‘advise on quality control mechanisms for regulation making and review’ and to ‘examine and advise on regulation impact statements (RISs) prepared by Australian Government departments and agencies’.[83] The ORR reviews draft RISs and provides comments to departments and agencies with the expectation that the department or agency will progressively improve the document[84] as it moves towards the policy approval stage and ultimately to publication of the final RIS.

The broadest measure reported by the ORR is the overall level of compliance of each agency and department with the government’s RIS requirements during the reporting year. An agency or department complies in relation to a legislative proposal if:

• a RIS was prepared to inform the decision-maker at the policy approval stage and the analysis contained in the RIS was adequate; and
• a RIS was tabled in the Parliament or otherwise made public and the analysis was adequate.[85]

The evaluative term, then, is the adequacy of a RIS. That is determined in relation to each RIS by reference to seven criteria that correspond to the seven sections of the basic RIS framework:

1. Is it clearly stated in the RIS what is the fundamental problem being addressed? Is a case made for why government action is needed?
2. Is there a clear articulation of the objectives, outcomes, goals or targets sought by government action?
3. Is a range of viable options assessed including, as appropriate, non-regulatory options?
4. Are the groups in the community likely to be affected identified, and the impacts upon them specified? There must be explicit assessment of the impact on small businesses, where appropriate. Both costs and benefits for each viable option must be set out, making use of quantitative information where possible.
5. What was the form of consultation? Have the views of those consulted been articulated, including substantial disagreements. If no consultation was undertaken, why not?
6. Is there a clear statement as to which is the preferred option and why?
   
   
   
   
   
   
7. Is information provided on how the preferred option would be implemented, and on the review arrangements after it has been in place for some time?[86]

The ‘overriding requirement’ applied to all seven criteria is that ‘the degree of detail and depth of analysis’ in the RIS is ‘commensurate with the magnitude of the problem and with the size of the potential impact of the proposals’.[87] The ORR scores ‘the nature and magnitude of the proposal (and the problem)’ on a three-point scale (large, medium or small) and scores the impact of the proposal on affected parties ‘from an economy-wide perspective, having regard to both their scope and intensity’ on a two-point scale (broad or narrow).[88] The measures on these two scales are then combined to identify the significance of regulatory proposals on a four-point scale.[89] The ORR does not provide further details on this process but claims that

categorising regulatory proposals according to their significance and impact ... provides a better basis on which to apply the ‘proportionality rule’ — that is, the extent of RIS analysis needs to be commensurate with the magnitude of the problem and with the size and potential impacts of the proposal.[90]

The imprecision of the process may not matter much. As the Productivity Commission observes, quoting the OECD:

Experience makes clear that [regulatory impact analysis’] most important contribution to the quality of decisions is not the precision of the calculations used, but the action of analysing — questioning, understanding real-world impacts, and exploring assumptions.[91]

The ORR does not review the substantive policy issues involved in the regulatory options that departments and agencies present. Instead, it ‘determine[s] if the guidelines have been followed, the level of analysis is adequate and commensurate with the impacts, and whether alternatives to regulation have been adequately considered.’[92] This ostensible neutrality is, of course, controversial. The Productivity Commission clearly has its own view of ‘the essential characteristics of effective and efficient regulation’.[93] Claims to neutrality do not take into account the effects of the process itself in shaping the substantive policies and policy instruments that are presented for review.

When the ORR began reviewing the adequacy of RISs, it applied ‘a relatively low’ standard of adequacy for RISs;[94] the standard was increased as decision-makers became ‘more familiar and experienced with the analytic approach required in RISs.’[95] The ORR has conducted training programmes for policy officers in departments and agencies in the requirements of regulatory impact assessment, particularly to enable those officers to review the regulatory impact of existing legislation.[96]

C Experience with the Regulatory Impact Statement Process

The RIS process is now relatively mature. It is part of an internationally entrenched regulatory paradigm.[97] It has existed in one form or another at the Commonwealth level for nearly two decades. It has been endorsed by both Labor and Liberal governments. And it has been adopted by state and territory governments. What is its track record?

There is surprisingly little critical literature on the subject of regulatory impact analyses, beyond that concerning their ‘effectiveness’ and the methodology for measuring such effectiveness.[98] The use of economic analysis, particularly

cost–benefit analysis, in preparing such statements, is nevertheless generally acknowledged to lead to a number of problems. In particular, regulatory impact analyses are criticised for their often narrow focus: what is ‘most conducive to economic efficiency or prosperity is not necessarily the same as the set [of laws and regulations] that best secures individual liberty, natural rights, or diverse concepts of “justice”.’[99] Regulatory impact analyses therefore have the capacity to ignore broader social and environmental concerns.[100]

Regulatory impact analysis also tends to treat all relevant factors as quantifiable and commensurable. This leads to sometimes arbitrary weightings being used to combine the scores assigned to those factors.[101] Morally- and ethically-laden concepts cannot necessarily be so easily reduced: for instance, some may consider ascribing economic value to aspects of human life and health to be offensive.[102] Even with less controversial topics, there are significant variations in subjective understandings of what constitutes ‘good regulation’.[103] It has also been argued that the process is contrary to the ethos of regulators and interest groups, neither of whom are comfortable with the process of systematically making explicit the costs and benefits of each regulatory option, preferring to focus on the benefits of their preferred options and the costs of others. These understandings may also be shaped by external incentives that may conflict with measured and objective analysis; regulators may feel pressured by a desire not to unduly ‘slow down the process’,[104] or even by an unwillingness to expose the relevant minister or department to criticism.[105]

Regulatory impact analysis can also be viewed as an attempt to predict the future operation of a regulation to determine its value. Such gazing into the

future, in treating ‘subjective future costs and benefits as technocratic variables that can be objectively estimated’,[106] is inherently dangerous, though arguably unavoidable.

In addition, there is the potential for regulatory impact statements to be used by governments to validate decisions already made.[107] In this way the RIS/ORR may been seen as ‘replacing political accountability with a mechanistic tool.’[108] The ORR’s response is rather glib: ‘In OECD countries, [regulatory impact analysis] is intended to complement good decision-making, not substitute for political accountability.’[109]

D Family Impact Statements

In addition to the RISs already discussed, family impact statements (‘FISs’) should be noted as an analytical tool used to assist in the evaluation of policy proposals in a highly contested area.[110] FISs have been described as a ‘tool for Cabinet to use to analyse and understand better the impact on families of new policies being considered across government.’[111] FISs have been required in South Australia for Cabinet submissions since 1980,[112] and in 1988 the New South Wales government made FISs a requirement of all Cabinet Minutes.[113] Premier Steve Bracks of Victoria has also indicated an interest in introducing such statements.[114] In the 2004 Australian federal election, the Howard Government made an election promise to introduce FISs for Cabinet submissions. While some have attributed this to the influence of the Family First party, it should be noted that Prime Minister Howard has been sympathetic towards the introduction of FISs since at least the early 1980s.[115] It has been suggested that the Commonwealth FISs ‘will address economic factors, families’ access to services and infrastructure and the impact on the way families function and on families’ varying responsibilities.’[116]

In preparing FISs in New South Wales, regulators are directed to look at the types, roles and functions of families, the care of children, whether certain target groups would be disadvantaged or excluded by the proposal, and how the proposal is coordinated with other agencies.[117]

In short, then, the RIS/ORR processes and the planned FIS processes formalise and integrate analysis of certain impacts of regulatory proposals into the policy process and subject that analysis to independent review; the analysis carried out during policy formation is then made available to inform parliamentary deliberation. The RIS/ORR experience is not without its controversies. However, its basic structural features meet the objectives outlined above for pre-legislative consideration of human rights issues. The question then is whether it can be adapted to the human rights context. That is the subject of the next Part.

IV A PROPOSAL FOR FORMAL ANALYSIS OF THE HUMAN RIGHTS IMPACT OF POLICY PROPOSALS

In the previous section I described the RIS and ORR processes. Why are these processes of any relevance at all to those interested in improving the capacity of the legislative process to address rights issues?[118] The answer is that these processes can provide a useful model for enhancing the consideration of human rights issues in the policy process. In particular, these processes respond to two needs that arise when the policy process leads to the enactment of legislation. First, as identified by David Kinley: the need for

a scheme, [under] which whilst retaining the authority of Parliament to enact legislation ... all legislation is both proposed and passed in the knowledge of its likely impact (if any) on the guarantees provided in the relevant human rights instruments.[119]

The second need is for a scheme that forces the executive, the most powerful branch in modern government, to confront the impact of its legislative proposals (and other policy proposals) upon human rights.

Accordingly, I would propose:

1. That the government require departments and agencies to prepare a HRIS for all policy proposals which have a direct or significant indirect (positive or negative) effect on human rights.
2. That an independent executive agency should be established to advise agencies and departments on human rights issues that arise in the policy process; to examine and advise on HRISs; and to report to the Attorney-General or Prime Minister on the overall adequacy of departments’ and agencies’ HRISs.[120]

A Proposal 1: Human Rights Impact Statements

This proposal is directly modelled on the existing requirement that departments and agencies prepare RISs for other categories of policy proposal.[121] Under the simplest version of this proposal, a HRIS must:

1. identify the problem or issues which may give rise to the need for action;
2. identify the desired objective or objectives of the action;
3. identify the policy instruments that might be employed to achieve the desired objective or objectives;
4. include an assessment of the human rights impact of each option;
5. identify the extent of the consultation with those who would be affected by the proposed action and summarise their views;
6. identify and give reasons supporting a recommended option; and
7. describe a strategy to implement and review the recommended option.

In other words, a HRIS will have the same broad structure and content as a RIS, but will depart from it most significantly in containing an assessment of the human rights impact of each option, rather than an assessment of the economic (cost–benefit) impact of each option.[122] HRISs will be required for proposals for legislative action as well as for proposals that employ other policy instruments.[123]

Departments and agencies should also be required over a period of years progressively to produce HRISs for existing legislative and non-legislative programmes, much like the requirement that they review the competition effects of existing regulations under the RIS process.[124] The HRIS should be attached to Cabinet submissions (or submissions to the Prime Minister) seeking approval for proposed measures, including regulations. The HRIS should also be tabled when proposed legislation is introduced into the Parliament. It can then inform parliamentary deliberation and decision-making about the extent (and possible justifications) of the human rights impact of the proposal itself and of the alternative regulatory options that were considered.

B Proposal 2: Review of Human Rights Impact Statements

This proposal envisages an executive agency whose functions mirror those of the ORR. It would therefore not be limited to the scrutiny of HRISs but would include the broader role of fostering integration of human rights concerns into the policy process. Nonetheless, review of HRISs would be a key element of its work. In particular, just as the ORR reviews the adequacy of RISs and not their merits, this agency should review the adequacy of HRISs and not the substantive policy decisions and judgements about human rights. Those are matters initially for departments and agencies, but ultimately and critically for political judgement in Parliament.

Which agency should have the responsibility for reviewing the adequacy of HRISs? In many instances, both an RIS and an HRIS will be required. Regulators should develop the (H)RIS as a single and integral component of the policy-making process that assesses human rights impact and economic impact. Separating the HRIS from the RIS is not likely to be conducive to an integrated approach to policy-making. This does not mean, however, that the same agency should be responsible for reviewing the adequacy of the regulatory and human rights aspects of the integrated impact statement. The expertise of the ORR and the focus of its current approach — micro-economic review of costs and benefits — is inappropriate for a body also required to assess human rights impacts. The preferable option is to divide responsibility for review of impact statements between the ORR and a specialised independent human rights agency, say, HREOC. However, if an expanded ORR were to assess human rights impacts as well as economic impacts, it would need a home outside the Productivity Commission that can also accommodate the distinctive expertise required for human rights impact assessment.

C Refining the Proposals

Proposal 1 meets (and indeed goes beyond) the basic need for a system that ensures that Parliament is informed about the impact of legislative proposals on human rights.[125] In doing so it is not unique. Rights impact statements are already required in the Australian Capital Territory, Queensland, New Zealand and the United Kingdom.[126] These statements differ one from another in at least five dimensions:

• scope: the rights considered in assessing the rights impact of proposed legislation;
• coverage: whether the requirement for a rights impact statement extends beyond government Bills to non-government Bills, and beyond Bills as introduced to Bills as amended in Parliament;
• content: whether there is a requirement for a reasoned statement regarding compatibility with the human rights instrument or merely for a statement, or whether there is a requirement for a broader assessment of human rights impact;
• integration: whether the HRIS is an integral part of the policy development process or whether it is an add-on component; and
• responsibility: whether responsibility for preparing and presenting the statement is centralised in a particular non-portfolio minister or law officer or allocated to the minister responsible for the Bill.

The present proposal reflects or requires design decisions in each of these dimensions.

1 Scope

Should policy makers assess the human rights impact of proposals against a canonical list of specific human rights (for example, a list based on the rights contained in the ICCPR and International Covenant on Economic, Social and Cultural Rights),[127] or should they merely be asked to assess the extent to which proposals ‘trespass ... on personal rights and liberties’?[128] The current mechanisms for scrutiny of legislative proposals follow both approaches — for example, the Scrutiny Committees have a broad and generic mandate; the Commonwealth Legislation Handbook directs attention to the ICCPR and Australia’s other treaty commitments. However, the issue is controversial. A New South Wales parliamentary committee rejected even the minimalist set of rights contained in the Legislative Standards Act 1992 (Qld) as an ‘initiative which emerged from the Fitzgerald Royal Commission as part of a thorough reformation of the relationships between the different arms of government after the problems of the 1980s’; it preferred ‘the more flexible, less prescriptive approach of the Senate Committee’ which would allow for, but not require, reference to the ICCPR and ‘local issues which may not be explicitly considered in international instruments.’[129] This is a design decision, requiring broad community consultation, which is beyond the scope of this article to resolve.

2 Coverage

The core HRIS proposal outlined above applies to government policy proposals. This reflects the fact that most policy development occurs in government agencies and departments.[130] However, just as amendments to the United Kingdom Parliament’s Standing Orders now require compatibility statements for non-government Bills, filling a lacuna left by the Human Rights Act 1998 (UK) c 42, the HRIS requirement should extend to non-government measures as well.[131] Parliament deserves to be apprised of the rights impact of all of the proposals that it considers. However, there are obvious resource implications. Non-government members do not have access to the departmental resources that ministers have. Nonetheless, just as non-government members can access the services of parliamentary counsel when drafting private members’ Bills, they could be given access to technical human rights expertise to prepare HRISs.

A potentially more difficult issue arises in relation to urgent legislation and amendments proposed in the course of parliamentary deliberation. In these situations, there may be no time for effective scrutiny, let alone preparation of a HRIS, before the legislation or amendments are considered by Parliament. Here, post-enactment review may be inevitable, just as post-enactment scrutiny by parliamentary committees is sometimes required.

3 Content

A bald statement that proposed legislation (or part of it) is or is not compatible with the relevant human rights instrument provides very little information to the Parliament or the public. Compatibility statements such as those provided in the Australian Capital Territory[132] fail to reveal whether the Attorney-General has reached the view that legislation does not infringe the protected rights at all or that it infringes protected rights but that he or she regards it as justified or proportionate to some legitimate objective. Much better that Parliament be given a reasoned statement of compatibility, as is now the practice in the United Kingdom,[133] or that the opinions on which statements of compatibility are based are themselves published, as is the practice in New Zealand.[134] Better still that Parliament has the information that would be contained in a HRIS, including information about non-legislative alternatives and why they were not preferred.

A HRIS requirement is not to be understood as undermining the importance of ministerial compatibility statements. Such statements signal that a minister takes political responsibility for the rights impact of proposed legislation. Ministerial responsibility cannot and should not be assumed by the minister’s officials. Ministerial compatibility statements have the capacity to focus the attention of the responsible minister on the issue of rights impact, rather than diffusing responsibility through the executive.

Bodies making HRISs could draw on a variety of established approaches to rights analysis. Each has merits and demerits and it is not necessary to choose finally between them here. Legally oriented approaches include the ‘Oakes test’[135] as used by the Canadian Supreme Court to determine whether legislation is incompatible with s 1 of the Charter; the proportionality analysis employed in the United Kingdom in relation to the Human Rights Act 1998 (UK) c 42;[136] and the approach of the United Nations Human Rights Committee[137] in relation to individual complaints under the first Optional Protocol to the International Covenant on Civil and Political Rights.[138] A more policy-oriented approach can be found in New Zealand. The Ministry of Justice provides a set of guidelines for public servants regarding the effect of the Bill of Rights Act 1990 (NZ) on their work.[139] The guidelines include material outlining the factors to be applied in considering the rights impact of a policy proposal, and in justifying any curtailment of a protected right or freedom. Even after drawing on these disparate influences, the analytical system would inevitably adapt to the local institutional setting over time.

That does not mean that the HRIS need be a substantial document. The HRIS methodology must be ‘flexible and administratively feasible given capacities and resources.’[140] As the OECD Secretariat comments in relation to RISs: ‘In most cases, simplicity is more important than precision ... In all cases, use of a few consistent analytical rules can greatly improve the quality of the analysis’.[141] There is a limit to how much information parliamentarians can absorb and use[142] and that may be less than the amount that departments and agencies can produce. This does not appear to have been a complaint about RISs to date, perhaps due to the standards that the ORR applies, which require a level of analysis proportionate to the seriousness of the issues presented by the regulatory proposal,[143] and to the relatively small number of proposals for which a full RIS is required. However, it will be necessary to guard against information overload and HRIS fatigue. This suggests that the implementation of the proposal must be monitored and evaluated rather than rejected out of hand.

I noted above that the key difference between RISs and HRISs arises in pt 4 of the document, which contains the analysis of the impact of the policy proposal. In the first instance this reflects the different normative frameworks in which the analyses are carried out — economics and human rights respectively. That difference in normative framework also leads to three methodological differences in the HRIS context. First, purely quantitative analysis will usually (but not always) be inappropriate. Second, analysis will not be focused exclusively on burdens or restrictions on rights, although these will be significant (compare the RIS analysis of restrictions on competition or business). Third, and developing this point, there need not always be a presumption against regulation and onus on the proponent of government action.[144] This is clearly the case in relation to social and economic rights where government action will clearly be required in many instances to secure the progressive realisation of those rights. Yet even in relation to civil and political rights, regulation is often required to make rights effective — to take but one example, rights of political participation cannot be realised without regulations establishing an electoral system. HRIS analysis will therefore need to consider whether a regulatory proposal goes far enough in pursuing rights outcomes.[145]

4 Integration

Legislative impact statements, and in particular HRISs, must be prepared as an integral part of the policy process and not as an after-the-fact formality. That is the hope of Elizabeth Kelly, Chief Executive Officer of the Australian Capital Territory Department of Justice and Community Safety and member of the consultative committee on the Human Rights Act 2004 (ACT). She argues that the statement of compatibility will ‘institutionalise human rights considerations at the beginning of the policy process’ and observes that ‘although this work will be invisible to practitioners and the public, in many respects it is where the biggest impact of the Act will be felt’.[146] Some mechanism more concrete than a mere recommendation that policy officers consult the Bill of Rights Unit or Human Rights Office during the policy formulation process[147] is desirable to ensure that human rights considerations are institutionalised. In New Zealand and the United Kingdom, the mechanism comes from instructions issued by the Cabinet Office. The New Zealand Cabinet Manual requires that at the policy approval stage ministers certify to Cabinet that their legislative proposals comply with relevant rights standards.[148] In the United Kingdom, the British Cabinet Office Guidance to Departments requires that, at the policy approval stage, ‘a general assessment’ of compatibility is provided to ministers; and that once the Bill is drafted,

a more formal compatibility document is prepared by departmental lawyers in consultation with Law Officers and the Foreign and Commonwealth Office. This document is then passed to the Cabinet Legislation Joint Committee and ultimately forms the basis of the s 19 statement in each House.[149]

5 Responsibility

The integration issue has obvious implications for who is responsible for preparing a HRIS. Responsibility for preparing the HRIS must rest with the department or agency responsible for the policy proposal that it accompanies. As Elizabeth Kelly points out, this helps ensure that human rights do not become the exclusive responsibility of a single reviewing agency.[150] This is not to say that there is no role for independent officers, such as the Attorney-General, in relation to HRISs, but it should be a scrutiny or review role and a political accountability role rather than one of taking primary responsibility for assessing the compatibility of the proposal with the relevant rights instrument.

V ASSESSMENT: REVIEW OF HUMAN RIGHTS IMPACT STATEMENTS

The HRIS scheme presented here meets the substantive demands that I have expressed already in Part IV. It provides reasoned assessments about the human rights impact of proposed legislation to support parliamentary deliberation[151] and it forces the executive to confront the human rights impact of its legislative and other policy proposals. It also meets the principled and pragmatic demands that I expressed at the outset for a cautious and incremental approach to rights protection that builds on existing processes. However, it is necessary to confront possible objections and alternatives to the proposal. That is the task of this Part.

A Subjectivity and Controversy

What of the objection that the cost–benefit analysis[152] involved in the existing processes is fundamentally unlike the analysis that would be involved in analysing rights impacts and reviewing those analyses? Undoubtedly there are significant differences and the regulatory impact processes cannot be applied directly to analyse rights impacts. However, there is one aspect of this objection that may be disposed of at once. It is not plausible to contrast cost–benefit analysis as a transparent and objective process with rights impact analysis as a contested and subjective process. (It is even less plausible to contrast the analysis required by FISs with that required by HRISs.) Cost–benefit analysis involves controversial assumptions about the discount rate to apply in measuring future costs and benefits;[153] it often requires practitioners to attach economic values to intangibles (for example, the environment) and things many would regard as invaluable (for example, a human life) or incommensurable (for example, rights and economic prosperity); and where practitioners are reluctant to bear the political costs of doing so they may exercise a discretion to use less rigidly quantitative analytical frameworks (in particular, the practical costs of attaching values to human life).[154] Rights impact analysis will inevitably be controversial, but regulation-impact analysis (and to an even greater extent, family impact analysis) already is.

B Independence

In his analysis of the work of scrutiny committees, David Kinley notes the Canadian and New Zealand requirements that the Minister of Justice or Attorney-General is to report on inconsistencies between proposed legislation and the relevant rights instrument.[155] He comments that both ‘lack independence, since they entrust the task of the scrutiny of government legislation to the government’ and that ‘one cannot help feeling uneasy at the prospect of political convenience trumping scrutinizing probity in certain, perhaps pressing, circumstances.’[156] In relation to the United Kingdom he has argued that ‘the only viable option [for effective scrutiny] is to establish it as part of the parliamentary legislative process (that is, crucially, beyond the sole control of the Executive).’[157]

Kinley moves too quickly from the manifest risk of inadequate consideration of rights issues by ministers (that is, by members of the political executive) to his conclusion that only parliamentary mechanisms can provide adequate scrutiny.[158] I have noted some of the constraints on parliamentary scrutiny committees above.[159] Here it is relevant to note that parliamentary scrutiny mechanisms have no guaranteed independence from the executive. Indeed, they depend critically on support from the executive to perform their function.[160] Executive support is needed to ensure that there are adequate resources for the scrutiny task; that adequate time is provided between introduction of proposed legislation and parliamentary debate; that ministers respond to concerns raised by the committee; and that the committee’s work feeds back into the policy process.

Kinley does not make the unrealistic demand that parliamentary scrutiny mechanisms be entirely independent of the executive; rather, he asks that they be beyond the sole control of the (political) executive. However, if that is the relevant point, there are many executive agencies that operate independently of the political executive: the Administrative Appeals Tribunal, the Ombudsman, the Australian National Audit Office, the National Competition Council and the Productivity Commission constitute a small selection of such executive agencies whose functions include review of the actions of other parts of the executive government. The extent of their independence varies as does the mechanism by which it is achieved. None have the same constitutional guarantees of independence as the federal courts. Nevertheless, they demonstrate that parliamentary mechanisms are not the only option for some measure of independent scrutiny of executive action, including rights scrutiny of proposed legislation.

Parliamentary human rights scrutiny mechanisms doubtless can play an important role, at least if they have a measure of executive support, but so too can appropriately constituted executive agencies. This leads to the question: ‘How should an executive agency responsible for human rights scrutiny of policy proposals be constituted?’

C Achieving Integration and Independence: Models for Human Rights Impact Statement Evaluation

It is necessary to distinguish between two different models of executive agencies responsible for evaluating government action: I will call them the primary evaluation model and the meta-evaluation model.

Under the primary evaluation model, the independent scrutiny agency performs its own evaluation of the government action. In a rights scrutiny context, this might mean that the independent scrutiny agency asks: ‘Does this proposed legislation infringe the human right to be free from discrimination on grounds of race?’ This is the model in the Australian Capital Territory and New Zealand, where law officers certify the compatibility of proposed legislation with the relevant rights standards.

Under the meta-evaluation model, by contrast, the independent scrutiny agency performs an audit or review function — the object of its evaluation is not the government action itself but the government’s evaluation of its action. Again, in a rights-scrutiny context, this might mean that the independent scrutiny agency asks, ‘Does the government’s analysis of whether this proposed legislation infringes the human right to be free from discrimination on grounds of race meet the relevant standards for such analyses?’ This is the model in Proposal 2 of this article, where an independent specialist agency reviews the primary evaluation of rights compatibility carried out by the agency responsible for the particular policy proposal.

Some current models for independent scrutiny of the rights impact of proposed government action and similar mechanisms in comparable jurisdictions (all of which will be explained in more detail below) can be classified according to this schema as follows:

Table 2: Independent Scrutiny of Rights Impact

What follows is a description, and an assessment of the strengths and weaknesses, of these various models. On balance, I shall argue the preferable model for Australia appears to be primary evaluation of the policy proposal by the agency making the proposal (to maximise integration with the policy process) coupled with meta-evaluation by an independent executive agency (to ensure independent scrutiny of the primary evaluation), as contemplated by the proposals made in Part IV.

1 Meta-Evaluation of Rights Impact by the Courts

A useful example of the first model is provided by the Private Property Protection Bill 2003 (Qld). The Bill would have required that the government prepare ‘private property impact studies’[161] for all legislation ‘that has the effect of diminishing, removing or restricting a person’s rights to the lawful use or enjoyment of the person’s private property’.[162] Impact studies would have been required to include:

1. a clear and specific identification of the substance of the proposed legislation and the purpose and aims of the proposed legislation;
2. an analysis of the extent to which the proposed legislation has the effect of diminishing, removing or restricting persons’ rights to the lawful use or enjoyment of private property;
3. an identification of the extent to which future development would be restricted by the proposed legislation;
4. an analysis and quantification of the total financial cost to private property owners of the imposition of the proposed legislation;
5. an analysis and quantification of the benefits of the proposed legislation, and an identification of the persons, or classes of person, to whom benefit accrues;
6. an examination of the alternatives to causing, through the proposed legislation, the rights any person has to the lawful use or enjoyment of the person’s private property to be diminished, removed or restricted.[163]

The Bill’s own legislative impact statement (a requirement of the Legislative Standards Act 1992 (Qld), discussed above) provided a most desultory account of the Bill’s costs and benefits.[164] It demonstrated the potential futility of requiring a rights impact statement in the absence of some mechanism for securing compliance with the requirement: there may be no incentive for the proponent to address the rights impact of the proposal in a substantive way. (The risk of futility is accentuated in relation to non-government Bills if the responsibility for preparing the rights impact statement is cast on the proponents of such Bills, given the limited resources of non-government members.) However, the Bill also proposed a mechanism for overcoming this risk in relation to private property impact statements. It would have provided for a court to order that a private property impact study be redrafted ‘to ensure that it includes the information required under this Act’ and to direct the department, ‘in redrafting the study, to have regard to particular evidence given by expert witness[es]’.[165]

Under the Bill, the court would not have been responsible for directly assessing how the legislation affects property rights; rather, it would have been responsible for assessing the adequacy of the private property impact statement. (The court’s jurisdiction under the Bill can be compared with the long-standing judicial review jurisdiction in relation to environmental impact statements, with the important difference that private property impact statements are prepared as a prelude to legislative action, rather than as a prelude to administrative action.)

Because the court’s role as envisioned in the Bill was limited, the Bill escaped most of the democratic objections to judicial enforcement of rights provisions. That is not to say that the role that the Bill would have given to the court was unproblematic. It would have been an unprecedented (or at least extraordinarily unusual) external check on the parliamentary legislative process.

The practical objection to the Bill is more significant. Although the Bill would enable independent scrutiny of the rights impact statement, it would come towards the end of the policy process. There is nothing in the Bill that would require that private property impact studies be prepared as an integral component of the policy process, rather than as an additional element prepared just in time for tabling with the final proposed legislation. And if the review role is assigned to the courts, it is difficult to see how the external review could come any earlier in the process.

2 Primary Evaluation of Rights Impact by a Judicial or Blended

Judicial–Independent Executive Agency

Professor George Winterton has proposed a mechanism that would overcome the difficulties with pre-enactment scrutiny by parliamentary committees[166] without giving the role wholly over to the courts.[167] In his view, a system that is limited to pre-enactment legislative scrutiny gives too much weight to parliamentary supremacy and not enough to judicial enforcement of rights.[168] His Australian Rights Council, loosely modelled on the French Conseil Constitutionnel,[169] would ‘protect rights and freedoms through pre-enactment, abstract, quasi-judicial review.’[170] The Council’s members would be former judges or ‘acknowledged experts in constitutional law’, chosen, like the judges of the German Bundesverfassungsgericht (Federal Constitutional Court), by two-thirds parliamentary majorities.[171] The Council would consider whether proposed legislation was compatible with a Bill of Rights or, if a Bill of Rights had not been enacted, international human rights instruments.[172] Its procedures would be adversarial and would occur immediately before the proposed legislation completed its passage through the Parliament, after the proposed legislation had been subject to deliberation and amendment in the democratic process.[173] Proposed legislation would not automatically come before the Council but could be referred to the Council by legislators and perhaps by affected members of the public.[174] The Council would be able to recommend amendments to proposed legislation to overcome any incompatibility with the Bill of Rights or international human rights instruments.[175] However, proposed legislation that the Council determined to be incompatible with the relevant rights standards could still be enacted, provided that a two-thirds majority of each House of Parliament agreed.[176]

Winterton’s Australian Rights Council is an imaginative attempt to draw on the resources of international constitutional traditions to reconcile the Australian commitment to parliamentary supremacy[177] with the widely shared belief that Australian Parliaments do not adequately protect individual rights. Yet some aspects of his proposal are mysterious. Winterton identifies the first of the ‘main disadvantages’ of allowing judicial enforcement as follows:

application of a Bill of Rights frequently requires balancing competing rights: the mother’s right to an abortion versus the right to life of the foetus and the father’s right to parenthood; the defendant’s right to a fair trial versus freedom of the press; free exercise of religion versus equality; non-establishment of religion versus freedom of speech, and so on. The balancing of these rights can rarely adequately be achieved merely by neutral principled reasoning, which is what an ideal judiciary offers. It requires the input of community values, policy and public opinion; in other words, political considerations, which should be tailored to each application, and may vary over time. ... The political process subject, ultimately, to the ballot box is a more appropriate mechanism for resolving such dilemmas than the blunt neutrality of courts.[178]

If so, why is the Rights Council to base its scrutiny on a canonical list of rights, to be staffed by former judges and lawyers and to conduct its business in a quasi-judicial manner? Why is participation by non-legislators in the proceedings of the Council to be limited to those directly affected by the proposed legislation (and to be excluded, rather than opened to all, if this model is regarded as too court-like)?[179]

Putting these questions to one side, Winterton’s proposal reflects a particular view of the shortcomings of Australian Parliaments in protecting rights. It focuses on the legislative outputs of parliamentary deliberation rather than on the policy process that leads to the initial proposal that the executive government puts before the Parliament. It assesses legislative outputs against rights criteria, but does not assist the Parliament in assessing ‘community values, policy and public opinion’[180] or in identifying options, short of the executive’s legislative proposal, that would achieve the same objectives. Like the model proposed by the Private Property Protection Bill 2003 (Qld) it therefore fails to meet the objectives of the proposals made in this article.

3 Primary Evaluation of Rights Impact by an Independent Executive Agency

As discussed above, the Australian Capital Territory, New Zealand and United Kingdom human rights legislation and the Legislative Standards Act 1992 (Qld) require a member of the executive government to certify in some way the compatibility of legislative proposals with relevant rights standards. The risks of having ministers responsible for assessing the rights impact of legislation are clearest when the assessing minister is also responsible for the legislation, as in Queensland and the United Kingdom. The only accountability in such cases for the quality of the rights impact statement comes through the parliamentary processes. When independence is non-existent, there is a risk, the extent of which can only be assessed in light of experience, that the certification requirement is a hollow charade. The Australian Capital Territory and New Zealand requirements operate with one level of independence. The rights impact statement must be given by the Attorney-General rather than the responsible minister. That the point of this requirement is that the statement be given by an independent person is reinforced by the New Zealand Cabinet Manual, which requires that where the Attorney-General is responsible for the relevant Bill the statement must be given by the law officers.

However, the extent to which either of these requirements is effective depends on the independence of the Attorney-General from his or her ministerial colleagues or of the law officers from the Attorney-General. It is well to remember the caution sounded by the High Court in Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd:

it has long been widespread practice in ... Australia, both in federal and ... State governments, ... to include the Attorney-General as a member of Cabinet. In Australia, both at federal and State levels, the Attorney-General is a minister in charge of a department administering numerous statutes, is likely to be a member of Cabinet and, at least at State level, may not be a lawyer. At the present day, it may be ‘somewhat visionary’ for citizens in this country to suppose that they may rely upon the grant of the Attorney-General’s fiat for protection against ultra vires action of statutory bodies for the administration of which a ministerial colleague is responsible.[181]

Former Attorney-General Daryl Williams sounded a similar note of caution in a 2002 speech, claiming that Australian Attorneys-General ‘are not, and cannot be, independent of political imperatives. They are not just legal advisers to the government: they are politicians, answerable to their party colleagues, Parliament and the electorate’.[182] It is therefore unlikely that a member of the political executive can discharge an independent evaluative role (as opposed to one of political accountability).

The primary evaluative function could instead be assigned to an independent statutory agency. For example, the Human Rights and Equal Opportunity Commission could be given a standing request (and the necessary resources) under s 11(e) of the HREOC Act:

to examine ... proposed enactments, for the purpose of ascertaining whether the enactments or proposed enactments, as the case may be, are, or would be, inconsistent with or contrary to any human right, and to report to the Minister the results of any such examination.

However, because the primary evaluation is carried out by a different agency from the one responsible for developing the proposal, this approach would fail to achieve sufficient integration with the policy process.

4 Meta-Evaluation of Rights Impact by an Independent Executive Agency

In this context, the two-pronged HRIS scrutiny model proposed here emerges as the only model that provides both sufficient independence from the political executive and sufficient integration with the policy process. It formalises, institutionalises, and specialises the review function. It avoids delegating full responsibility for human rights analysis to regulators ‘without adequate oversight’ while also avoiding giving responsibility to an independent body that is so isolated from the policy cycle that the analysis is an ‘academic and impotent exercise.’[183]

In conjunction, the two proposals have the potential to provide an additional layer of scrutiny at a timely point in the policy process, and to strengthen the work already performed by the legislature in protecting and promoting human rights in Australia. That is not to suggest they are a panacea or that their implementation would be unproblematic. The experience with regulation review suggests that rights review will not result in an overnight transformation of the culture of policy formation. As the ORR wryly notes in its sixth Annual Report:

The difference between compliance at the decision-making and tabling stages for proposals introduced via Bills, especially for significant proposals, may suggest that, after five years, some Government departments still regard the RIS process as an ‘add-on’.[184]

Equally, the experience with regulation review suggests that compliance with a rights review process may be ‘poorest where it matters most’.[185] Some departments have relatively weak compliance with the RIS requirements and appear to regard them as an ‘add-on’ rather than as an integral part of the policy-making process.[186] The ORR quotes the OECD on the subject of regulation review that:

its degree of integration with policy decision-making is low in almost all cases. It is typically regarded as an additional procedural requirement that, at best, explains the merits of a policy decision rather than determining the decision itself. This is a certain symptom of the absence of the cultural change required within the administration to implement the regulatory policy agenda.[187]

These departments do not appear to have internalised the evidence-based approach to regulatory costs and benefits that the process is designed to inculcate. There is little reason to believe that a substantive commitment to rights protection will be any more readily integrated into their work by these policy-makers than the substantive commitment to ‘minimise the burden of regulation on business’ has been to date. It will be necessary to provide appropriate incentives for policy-makers to work on rights impact assessment throughout the policy development process.[188]

Finally, it seems to me that such procedural changes are likely to be of marginal significance in the absence of ongoing high-level political support for the HRIS initiative. This certainly has been the experience with RISs. The OECD lists political support as a key indicator for success of regulatory review processes.[189] Lack of political support from the Cabinet Office before 1997 seems to have meant that the then decade-old Commonwealth RIS requirement was not working effectively;[190] the requirement became a central element of government policy-making following Prime Minister Howard’s strong support in 1997.

VI CONCLUSION

Neither a requirement that policy makers prepare HRISs nor a requirement that HRISs be scrutinised by an independent executive agency will establish a culture of respect for human rights in Australian government. That depends on a commitment from the executive to human rights as a yardstick by which government action is to be evaluated. However, the two requirements proposed here can be important signals of the executive’s commitment to human rights. They are a logical extension of its existing commitment to evidence-based policy-making. They do not disrupt existing institutional responsibilities and competences. They are designed to cultivate a practice of human rights interpretation and analysis in the executive[191] and to facilitate human rights interpretation and analysis in general. They therefore have the potential to further the fundamental democratic objective of assisting Australian legislatures to make their own assessment of the human rights impact of government proposals.

[∗] BSc (Hons), LLB (Hons) (Syd), PhD (Cantab); Senior Lecturer, Faculty of Law, The University of Melbourne; Director, Centre for Comparative Constitutional Studies, The University of Melbourne. This research was supported by the Australian Research Council through a Discovery Project grant for work with Carolyn Evans and Kris Walker on Australian Parliaments and Human Rights. I am grateful to Carolyn Evans for her comments and to Chris Thomas for exemplary research assistance.

[1] For the most part I write about Commonwealth institutions and practices, but the analysis and recommendations are equally applicable to the States and Territories.

[2] This article considers only primary (parliamentary) legislation rather than secondary (delegated) legislation. The two types of legislation raise distinct issues because of the differences in the legislative processes and in the extent of judicial review currently available.

[3] The proposals made here remain relevant to these jurisdictions. As will become clear later, the formal consideration of human rights issues required by the Human Rights Act 2004 (ACT) comes late in the policy process and both the formal processes and the earlier informal processes could be augmented by the mechanisms proposed here.

[4] Although opposition by those involved in the legislative process should not be underestimated. It should be remembered that the Fraser government opposed the establishment of the Senate Scrutiny of Bills Committee: Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, Ten Years of Scrutiny (1991) 5–6, 25.

[5] For a survey of the various strands of the debate see, eg, Barry Friedman, ‘The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty’ (Pt 5) [2002] YaleLawJl 4; (2002) 112 Yale Law Journal 153.

[6] See, eg, Jeremy Waldron, Law and Disagreement (1999) 184–6, 285–94.

[7] Ibid 23–4, 49–50, 82–4.

[8] See, eg, Thomas Christiano, ‘Waldron on Law and Disagreement’ (2000) 19 Law and Philosophy 513, 519–20; Christopher Eisgruber, ‘Democracy and Disagreement: A Comment on Jeremy Waldron’s Law and Disagreement’ (2002) 6 New York University Journal of Legislation and Public Policy 35, 38–9. See generally Christopher Eisgruber, Constitutional Self-Government (2001); Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004); Mark Tushnet, Taking the Constitution Away from the Courts (1999).

[9] See, eg, Aileen Kavanagh, ‘Participation and Judicial Review: A Reply to Jeremy Waldron’ (2003) 22 Law and Philosophy 451, 479–81; Adrienne Stone, ‘Disagreement and an Australian Bill of Rights’ [2002] MelbULawRw 25; (2002) 26 Melbourne University Law Review 478, 493–5. See also Wojciech Sadurski, ‘Judicial Review and the Protection of Constitutional Rights’ (2002) 22 Oxford Journal of Legal Studies 275.

[10] The Commonwealth Senate Scrutiny of Bills Committee is the oldest of the specialised scrutiny committees. Under Standing Order 24(1)(a), it is responsible for reporting on whether Bills:

(i) trespass unduly on personal rights and liberties;

(ii) make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers;

(iii) make rights, liberties or obligations unduly dependent upon non-reviewable decisions;

(iv) inappropriately delegate legislative powers; or

(v) insufficiently subject the exercise of legislative power to parliamentary scrutiny.

There are committees with broadly similar responsibilities for scrutiny of primary legislation against rights criteria in the legislatures of New South Wales, Queensland, Victoria and the Australian Capital Territory.

[11] See, eg, Janet L Hiebert, ‘A Hybrid-Approach to Protect Rights? An Argument in Favour of Supplementing Canadian Judicial Review with Australia’s Model of Parliamentary Scrutiny’ [1998] FedLawRw 5; (1998) 26 Federal Law Review 115; David Kinley, ‘Parliamentary Scrutiny of Human Rights: A Duty Neglected?’ in Philip Alston (ed), Promoting Human Rights through Bills of Rights: Comparative Perspectives (1999) 158; cf John Uhr, Deliberative Democracy in Australia: The Changing Place of Parliament (1998).

[12] They are the subject of ongoing empirical research in a project of which this article forms a part.

[13] George Winterton, ‘An Australian Rights Council’ [2001] UNSWLawJl 64; (2001) 24 University of New South Wales Law Journal 792, 794–5.

[14] Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, The Work of the Committee during the 39th Parliament: November 1998 – October 2001 (2001) 8.

[15] This is not meant to represent a linear process, nor to suggest that any one institution has responsibility for each stage. The process is iterative and multicentred. Policy formation often involves a repeated cycle of proposals and responses involving ministers and their departments. Consultation with experts and affected parties may occur at that stage, at the drafting stage or only at the stage of parliamentary debate and scrutiny. The parliamentary stages may involve greater or less scrutiny by specialist or generalist committees and by the houses themselves. Post-enactment review may occur through systematic committee-based scrutiny of the administration of legislation (particularly through the Senate Estimates Committee system but also through substantive references committees). Alternatively, it may be triggered by petitions, debates on matters of public importance, grievance or adjournment debates, or by extra-parliamentary action (not least by the news media). It may lead to formation of new policies that address the shortcomings revealed in the old, thus restarting the process.

[16] For analysis of the processes in Australia, Canada, New Zealand and the United Kingdom, see, eg, Kinley, ‘Parliamentary Scrutiny of Human Rights’, above n 11, 163–74.

[17] This was noted in Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, above n 14, 8–9.

[18] Of course, the executive cannot maintain complete control over the legislative process if it does not have a majority in the upper house.

[19] Peter Bridgman and Glyn Davis, The Australian Policy Handbook (2004) 26–8. The authors explain elsewhere that the policy cycle ‘is and always will be a simplified representation of the policy world, an aid to understanding. It is not offered as a theory, explaining or predicting behaviour’: Peter Bridgman and Glyn Davis, ‘What Use Is a Policy Cycle? Plenty, if the Aim Is Clear’ (2003) 62(3) Australian Journal of Public Administration 98, 100. Nonetheless, their representation is controversial, and has been criticised for reflecting discredited rationalist/systematic approaches to policy: see H K Colebatch, ‘Policy Analysis, Policy Practice and Political Science’ (Paper presented at the IPSA World Congress, Durban, 29 June – 4 July 2003) <http://www.spea.indiana.edu/IPSA-RC32/IPSA.Colebatch.doc> Sophia Everett, ‘The Policy Cycle: Democratic Process or Rational Paradigm Revisited?’ (2003) 62(2) Australian Journal of Public Administration 65. See generally Mark Considine, Making Public Policy: Institutions, Actors, Strategies (2005). What their representation does not do — and does not claim to

do — is describe the processes by which political decisions are made on policy issues.

[20] Standing Committee on Law and Justice, Legislative Council, Parliament of New South Wales, A NSW Bill of Rights (2001) 115.

[21] See below nn 34–8 and accompanying text for a discussion of the Queensland position.

[22] This is an important qualification. Not all Cabinet Handbooks and Legislation Handbooks are publicly available.

[23] In relation to secondary legislation, drafters in some states are required to take rights issues into account: see, eg, Subordinate Legislation Act 1994 (Vic) ss 21(1)(f)–(g). Cf Legislative Instruments Act 2003 (Cth) ss 16–17.

[24] Department of the Prime Minister and Cabinet, Commonwealth Legislation Handbook (1999, updated as of May 2000) [4.5].

[25] Ibid [1.12(c)].

[26] Ibid [1.12(e)].

[27] Most recently, the Commonwealth government rejected amendments proposed by the Australian Democrats (supported by the Australian Labor Party) to the Legislative Instruments Bill 2003 (Cth) that would have required rule-makers to undertake appropriate consultations with experts and affected persons when proposed delegated legislation would affect human rights, civil liberties, the environment and other interests of the community: Commonwealth, Parliamentary Debates, House of Representatives, 3 December 2003, 23 647–9 (Philip Ruddock, Attorney-General). The Legislative Instruments Act 2003 (Cth), passed without amendment in this regard, is different in two respects from the Democrats’ proposal. First, it does not require consultation but only recommends it; second, it only does so when delegated legislation would affect business or restrict competition: see Legislative Instruments Act 2003 (Cth) ss 17–19.

[28] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).

[29] Department of the Prime Minister and Cabinet, above n 24, [6.34].

[30] Similar provisions in other Acts confer a function on the Commission to ascertain whether an enactment or proposed enactment is inconsistent with those Acts: see, eg, Sex Discrimination Act 1984 (Cth) s 48(1)(f); Disability Discrimination Act 1992 (Cth) s 67(1)(i). While there is no equivalent provision under the Racial Discrimination Act 1975 (Cth), s 46C(1)(d) of the HREOC Act allows the Commission to examine enactments or proposed enactments to determine ‘whether they recognise and protect the human rights of Aboriginal persons and Torres Strait Islanders’.

[31] David Kinley, ‘Human Rights Scrutiny in Parliament: Westminster Set to Leap Ahead’ (1999) 10 Public Law Review 252, 253.

[32] The Commission is nonetheless still able to make submissions to parliamentary inquiries and government on proposed legislation without the request of a Minister. See, eg, Senate Legal and Constitutional Legislation Committee, Inquiry into the Provisions of the Disability Discrimination Amendment Bill 2003: Submission of Human Rights and Equal Opportunity Commission (2003) <http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/2002-04/

disability/submissions/sub82.doc>. See also Human Rights and Equal Opportunity Commission, Annual Report 2003–2004 (2004) ch 3, which notes the Commission’s input into six pieces of legislation: the Anti-Terrorism Bill (No 2) 2004 (Cth), the Migration Amendment (Judicial Review) Bill 2004 (Cth), the Sex Discrimination Amendment (Teaching Profession) Bill 2004 (Cth), the Age Discrimination Act 2004 (Cth), the Disability Discrimination Amendment Bill 2003 (Cth) and the Civil Aviation Amendment (Relationship with Anti-Discrimination Legislation) Bill 2004 (Cth).

[33] Commonwealth, Parliamentary Debates, Senate, 12 May 2005, 50 (Senator Joseph Ludwig).

[34] On the normative dimension of Queensland exceptionalism, see Standing Committee on Law and Justice, Legislative Council, Parliament of New South Wales, above n 20, 22–3.

[35] Department of the Premier and Cabinet, Queensland, Cabinet Handbook (2003) [7.2.5].

[36] Ibid [7.2.4]–[7.2.5].

[37] Office of Queensland Parliamentary Counsel, Annual Report 2002–03 (2003) 25.

[38] Office of Queensland Parliamentary Counsel, Annual Report 2003–04 (2004) 21.

[39] Bill of Rights Unit, Department of Justice and Community Safety, Australian Capital Territory, Guide to ACT Departments on Pre-Introduction Scrutiny: The Attorney-General’s Compatibility Statement under the Human Rights Act 2004 (October 2004) 2, 4 <http://www.jcs.act.gov.au/

HumanRightsAct/Publications/PreIntroduction%20Scrutiny.doc>.

[40] Peter Bayne, ‘The Human Rights Act 2004 (ACT) — Developments in 2004’ (2005) 8 Canberra Law Review 137, 144.

[41] Human Rights Act 2004 (ACT) s 41(1)(c).

[42] Helen Watchirs, ‘The ACT Human Rights Act 2004: A New Scrutiny Challenge’ (Paper presented at the Ninth Australasian and Pacific Conference on Delegated Legislation and Sixth Australasian and Pacific Conference on the Scrutiny of Bills, Canberra, 2 March 2005) 4 <http://www.parliament.act.gov.au/conferences/scrutiny/watchirs.pdf> .

[43] Bill of Rights Unit, Department of Justice and Community Safety, Australian Capital Territory, above n 39, 3.

[44] Human Rights Act 2004 (ACT) s 37.

[45] Bill of Rights Unit, Department of Justice and Community Safety, Australian Capital Territory, above n 39, 3.

[46] See, eg, Jon Stanhope, Attorney-General, Australian Capital Territory, Compatibility Statement (2005) <http://www.legislation.act.gov.au/updates/compatibilitystatements/CSTreeProt.pdf> who states that ‘[i]n accordance with section 37 of the Human Rights Act 2004 I have examined the Tree Protection Bill 2005. In my opinion the Bill, as presented to the Legislative Assembly, is consistent with the Human Rights Act 2004.’

[47] Tim Keady, Statement of Reasons Supporting the Compatibility Statement for the Mental Health (Treatment and Care) Amendment Bill 2005 (2004) Australian Capital Territory Legislation Register <http://www.legislation.act.gov.au/updates/compatibilitystatements/CSMentalHealth

.pdf>. Note that the statement of reasons was given by the Chief Executive of the Department of Justice and Community Safety, rather than by the Attorney-General.

[48] Industry Commission, Regulation and Its Review 1995–96 (1996) 46. Similar requirements exist in most Australian jurisdictions: see, eg, Productivity Commission, Regulation and Its Review 2002–03 (2003) 91–2.

[49] John Howard, ‘More Time for Business’ (Statement of the Prime Minister, 24 March 1997) 65.

[50] Ibid 67–8.

[51] Productivity Commission, Regulation and Its Review 2002–03, above n 48, 9. The concept of regulation is broad. It includes not only primary and delegated legislation and treaties, but

also other policy instruments such as ‘industry codes of practice, guidance notes,

industry–government agreements and accreditation schemes’: Office of Regulation Review, A Guide to Regulation (2nd ed, 1998) A3.

[52] Productivity Commission, Regulation and Its Review 2002–03, above n 48, 6.

[53] Ibid.

[54] Ibid 10.

[55] Howard, above n 49, 68.

[56] Office of Regulation Review, above n 51, A1.

[57] Scott Jacobs, ‘An Overview of Regulatory Impact Analysis in OECD Countries’ in Organisation for Economic Cooperation and Development (‘OECD’), Regulatory Impact Analysis: Best Practices in OECD Countries (1997) 13, 16.

[58] Productivity Commission, Regulation and Its Review 2002–03, above n 48, 10.

[59] Cf OECD, Regulatory Policies in OECD Countries: From Interventionism to Regulatory Governance (2002) 46, cited in Productivity Commission, Regulation and Its Review 2002–03, above n 48, 94.

[60] Productivity Commission, Regulation and Its Review 2002–03, above n 48, 6.

[61] Office of Regulation Review, above n 51, A2. There are variants for taxation proposals and proposals arising through the Council of Australian Governments framework.

[62] Ibid (emphasis added).

[63] Ibid B1.

[64] Ibid A2, B1.

[65] Ibid A2, B2–B4.

[66] Ibid A2 (emphasis added). See also at B4–B6.

[67] Ibid D9.

[68] Ibid B4. Although those examples could be conceptualised in terms of rights, the RIS does not do so. Equally, the examples given of costs to the community — ‘an undesirable redistribution of income and wealth; reduced innovation; lower employment levels; and lower economic growth (which implies a lower standard of living)’ — are conceptualised in economic terms: at D9.

[69] Not least in the number and detail of the examples of financial costs and benefits compared with that for non-financial costs and benefits: see ibid B5–B6.

[70] Ibid B6.

[71] Ibid. Unless the costs and benefits are clear and the additional work involved in doing a quantitative assessment is not justified: at D6.

[72] Ibid D10.

[73] Ibid (emphasis added).

[74] Ibid A2, B7.

[75] Ibid.

[76] Ibid A2 (emphasis added).

[77] Ibid B7–B8.

[78] Productivity Commission, Regulation and Its Review 2002–03, above n 48, 10; Office of Regulation Review, above n 51, A5.

[79] Office of Regulation Review, above n 51, A6.

[80] Most often in relation to overseas development cooperation. See, eg, Norwegian Agency for Development Cooperation (Norad), Handbook in Human Rights Assessment: State Obligations, Awareness and Empowerment (2001).

[81] For instance, the Subordinate Legislation Act 1994 (Vic) s 10(2) requires that the ‘assessment of the costs and benefits [in regulatory impact statements] must include an assessment of the economic, environmental and social impact’ of the proposed statutory rule (emphasis added). Sections 32–4 of the Human Rights Act 2004 (ACT) require the Attorney-General to present a compatibility statement to Parliament, outlining whether the proposed legislation is consistent with the Act: in the event that the proposed legislation is inconsistent, the statement must outline how it is inconsistent.

[82] The Productivity Commission is itself an independent statutory agency within the Commonwealth executive.

[83] Productivity Commission, Regulation and Its Review 2002–03, above n 48, 75. See also ORR, above n 51, A11.

[84] Productivity Commission, Regulation and Its Review 2000–01 (2001) 8.

[85] Productivity Commission, Regulation and Its Review 2002–03, above n 48, 11.

[86] Ibid 12 (emphasis removed).

[87] Ibid.

[88] Productivity Commission, Regulation and Its Review 2000–01, above n 84, 7.

[89] Ibid.

[90] Productivity Commission, Regulation and Its Review 2002–03, above n 48, 13 (citations omitted).

[91] OECD, Regulatory Policies in OECD Countries, above n 59, 47 (emphasis in original), cited in ibid 94.

[92] Productivity Commission, Regulation and Its Review 2002–03, above n 48, 21, writing in the context of national cooperative regulation but stating that it applies the same approach to Commonwealth regulatory proposals.

[93] Ibid 53.

[94] Ibid 11.

[95] Ibid.

[96] Productivity Commission, Regulation and Its Review 2000–01, above n 84, 44; Productivity Commission, Regulation and Its Review 2002–03, above n 48, 77.

[97] Productivity Commission, Regulation and Its Review 2002–03, above n 48, xv.

[98] The recognised obstacles to effectiveness include complexity, cost, lack of time, resistance from policy-makers, lack of incentives for policy-makers to comply, lack of skilled policy-makers, and lack of demand for information from politicians: see Jacobs, above n 57, 20–1.

[99] Bryce Wilkinson, ‘Evaluating Government Regulations’ (2003) 10 Agenda: A Journal of Policy Analysis and Reform 325, 332. See also Regulatory Consulting Group, Assessing the Contribution of Regulatory Impact Analysis on Decision Making and the Development of Regulations (2000) 25.

[100] OECD, Regulatory Reform: A Country Study of Australia (1996) 58.

[101] A recent illustration is provided by the Regulatory Framework for the Conduct of Local Government Elections and Related Matters: Regulatory Impact Statement for the Local Government (Electoral) Regulations 2005 (Vic) (2005) <http://www.doi.vic.gov.au/DOI/

DOIElect.nsf/2a6bd98dee287482ca256915001cff0c/6c2f3c54e97476ddca25701a00139521/$FILE/RIS-LGElectRegs.pdf>. Proposed reg 37 would have prevented candidates from including preference lists in the candidate statements that are sent to voters when local government elections are conducted by postal ballot: at 36–7. The RIS summarises its evaluation of three options — the status quo, the proposed regulation (‘no preferences’) and a regime under which candidate statements were eliminated entirely (‘no regulation’). First, it identifies four criteria, listed in the first column of the following table: at 39. (The RIS does attempt to move

beyond purely financial considerations in the first two criteria; but equally there

is no mention of the restriction of the candidates’ rights of political communication.)

The RIS does not include reasons to explain the weights that it attaches to the various criteria, apart from assertions along the lines of ‘[t]his is an important criterion and receives a weighting of 30%’ and ‘[g]iven the potential negative consequences associated with large numbers of dummy candidates, this criterion also has a high weighting of 30%’: at 39. The options are scored against the criteria on a seven-point scale: -3 where the option has ‘major disadvantages’ compared to a benchmark, -2 where it has ‘significant disadvantages’, -1 where it has ‘some disadvantages’, 0 where it has ‘little or no disadvantage or advantage’, through to +3 where it has ‘significant advantages’: at 15.

As the RIS explains (at 15 (emphasis in original)):

Each option/criterion score is weighted in accordance with the percentage weightings and the weighted score is shown in brackets. The sum of all the weighted scores for each option is shown at the bottom of the table.

All scores are relative scores. That is, they are relative to the benchmark option, which is defined to be zero.

Options that score an overall positive (>0) are evaluated as preferable to the benchmark option, while options with a negative total weighted score (<0) are less preferable. The option with the highest score overall is the most preferred.

In this case, therefore, the preferred option is the proposed reg 37 (‘no preferences’) because its score (0.0) is greater than the score for the status quo (-0.6) or the hypothetical ‘no regulation’ scenario (-0.4). The conclusion regarding which is the preferred option depends critically on the weights and scores assigned to the options in an attempt to combine the various factors. Inevitably, the weights and scores are a matter of impression and the final ‘weighted score[s]’ (which is formed by a purely mathematical combination of those weights and scores) is equally a matter of impression, notwithstanding the ostensible objectivity of the numbers.

[102] Regulatory Consulting Group, above n 99, 25.

[103] Claudio M Radaelli, ‘How Context Matters: Regulatory Quality in the European Union’ (Paper presented at the Political Studies Association Conference, Lincoln, 5–8 April 2004) 9–10 <http://www/psa.ac.uk/cps/2004/pps/Radaelli.pdf> .

[104] Productivity Commission, Regulation and Its Review 2002–03, above n 48, 5.

[105] Regulatory Consulting Group, above n 99, 25.

[106] Wilkinson, above n 99, 334.

[107] Sarah Mosedale, Centre on Competition and Regulation, ‘Regulatory Impact Assessment’ (CRC Policy Brief No 3, Centre on Competition and Regulation, 2004).

[108] Productivity Commission, Regulation and Its Review 2002–03, above n 48, 4.

[109] Ibid.

[110] Archibald Stuart, ‘Family Impact Statements in South Australia’ (1984) 5 Journal of Family Issues 383, 385.

[111] Senator Kay Patterson, ‘Opening Address’ (Speech delivered at the Australian Institute of Family Studies Conference — Families Matter, Melbourne, 9 February 2005) <http://www.facs.gov.au/internet/minister1.nsf/content/aifs_families_matter_9feb05.htm> . There has been sporadic interest in the idea in the US since the 1970s. While this has led to fairly extensive research on possible methodologies to be employed in preparing FISs, only a few states have bothered to implement such a requirement, with varying degrees of enforcement. In 1987, for example, President Reagan issued an executive order requiring executive agencies to evaluate proposed enactments for their impact on the family using seven criteria, yet this order was largely ignored: Theodora Ooms, ‘Taking Families Seriously: Family Impact Analysis as an Essential Policy Tool’ (Paper prepared for the Expert Meeting on Family Impact, Leuven, 19–20 October 1995, revised 14 November 1995) 3.

[112] Stuart, above n 110, 387–8.

[113] Law and Social Justice Branch, Cabinet Office, New South Wales, Memorandum No 94–6: Guidelines for Family Impact Statements in Cabinet Minutes (1 March 1994) New South Wales Premier’s Department <http://www.premiers.nsw.gov.au/pubs_dload_part4/prem_circs_memos/

prem_memos/1994/m94-06.html>.

[114] Jason Dowling, ‘Bracks Joins Howard in Bowing to Family First’, The Sunday Age (Melbourne), 10 April 2005, 8.

[115] Commonwealth, Parliamentary Debates, House of Representatives, 15 October 1981, 2066 (John Howard, Treasurer).

[116] Patterson, above n 111.

[117] Law and Social Justice Branch, Cabinet Office, New South Wales, above n 113.

[118] RISs occasionally address rights issues, but through a costs–benefits lens. For an example, see the RIS published with the Explanatory Memorandum, Age Discrimination Bill 2003 (Cth) 5–9, 16–24. Nonetheless some Bills that have a large rights impact hardly affect businesses and therefore do not require a RIS: see, eg, the Migration Legislation Amendment (Judicial Review) Bill 1998–2001 (Cth).

[119] Kinley, ‘Parliamentary Scrutiny of Human Rights’, above n 11, 163 (emphasis in original).

[120] These proposals are not intended to supplant ministerial compatibility statements, which are crucial to maintaining ministerial responsibility. This is discussed further below in Part IV(C)(3).

[121] Recall that regulation is a broad category, extending beyond legislation to include other policy instruments: see above Part III.

[122] That is not to say that the differences will be confined to pt 4 of the RIS/HRIS. At the very least, a human rights perspective will inform the identification (in pts 1 and 2 of the HRIS) of issues that require policy responses and the desired objectives of those responses and (in pt 5 of the HRIS) will broaden the range of stakeholders consulted.

[123] The HRIS requirement is wider than the RIS requirement in that it extends to policy proposals that do not take the form of regulation (cf above Part III). For example, a HRIS should be required for spending proposals. The human rights perspective requires attention to government action and inaction that has the potential to advance or retard human rights protection, not just to regulation (in a narrow sense) that restricts economic freedom.

[124] See OECD, Regulatory Reform, above n 100, 8, 25–31. This would allow HRISs to evaluate the need for government action and help foster a proactive attitude to promoting human rights, rather than simply a reactive approach that assesses whether concrete legislative proposals affect rights.

[125] Kinley, ‘Parliamentary Scrutiny of Human Rights’, above n 11, 163.

[126] As noted above, s 37 of the Human Rights Act 2004 (ACT) requires the Attorney-General to prepare a statement for presentation to the legislature about the extent to which each government Bill is consistent with human rights.

Section 22(1) of the Legislative Standards Act 1992 (Qld) requires the member who presents a Bill to the House to circulate an explanatory note that includes ‘a brief assessment of the consistency of the Bill with fundamental legislative principles and, if it is inconsistent with fundamental legislative principles, the reasons for the inconsistency’: s 23(1)(f).

Section 7 of the Bill of Rights Act 1990 (NZ) requires the Attorney-General to ‘bring to the attention of the House of Representatives any provision in [each government and non-government] Bill that appears to be inconsistent with any of the rights and freedoms in this Bill of Rights.’

Section 19 of the Human Rights Act 1998 (UK) c 42 requires the responsible minister to make a statement prior to the second reading of each Bill ‘to the effect that in his view the provisions of the Bill are compatible with the Convention rights’ or ‘to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.’

Section 4 of the Canadian Department of Justice Act, RSC 1985, c J–2 requires the Minister for Justice to certify that the proposed legislation has been assessed against the Canadian Charter of Rights and Freedoms [Constitution Act 1982, being sch B to the Canada Act 1982 (UK) c 11, pt 1] (‘Charter’) and to report any apparent inconsistencies. At the time of writing, no inconsistencies with the Charter have yet been reported, although this is generally attributed to a political culture reluctant to make proposals that are inarguably inconsistent with the Charter, rather than a failure to take this duty seriously: Janet Hiebert, Charter Conflicts: What Is Parliament’s Role? (2002) 10–11; Julie Debeljak, Human Rights and Institutional Dialogue: Lessons for Australia from Canada and the United Kingdom (PhD Thesis, Monash University, 2004) 153.

[127] Opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

[128] Commonwealth, Senate, Standing Order 24(1)(a).

[129] Standing Committee on Law and Justice, Legislative Council, Parliament of New South Wales, above n 20, 131.

[130] Contrary to the ORR’s view in relation to RISs, preparation of a HRIS should not be unnecessary simply because a ‘regulation reflects a specific election commitment and there is no scope to consider alternative ways to meet that commitment’: ORR, above n 51, A4 (emphasis in original). At least in the rights context, that approach is unduly deferential to the government.

[131] Anthony Lester, ‘Parliamentary Scrutiny of Legislation under the Human Rights Act 1998’ (2002) 33 Victoria University of Wellington Law Review 1, 5, 17.

[132] See above Part II(B).

[133] Lester, above n 131, 20–1.

[134] Ministry of Justice, New Zealand, Advice Provided by the Ministry of Justice and the Crown Law Office to the Attorney-General on the Consistency of Bills with the Bill of Rights Act 1990 (2003–) New Zealand Ministry of Justice <http://www.justice.govt.nz/bill-of-rights/index.html> .

[135] See R v Oakes [1986] 1 SCR 103, 138–9 (Dickson CJ, Chouinard, Lamer, Wilson and Le Dain JJ).

[136] Variants of proportionality have been invoked in several contexts since the passage of the Human Rights Act 1998 (UK): concerning the review of a derogation order from the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953), in the aftermath of the September 11 attacks in the US (A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68, 102–27 (Lord Bingham), 144 (Lord Hope), 150 (Lord Scott), 166–70 (Lord Walker), 174 (Baroness Hale)); in relation to the development of the tort of misuse of private information (Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457, 466 (Lord Nicholls), 473–5 (Lord Hoffman), 488–93 (Lord Hope), 497 (Baroness Hale)); and in dealing with the interpretation of domestic legislation in light of the European Convention and the ability to rely on Convention rights at different stages in legal proceedings (R v Lambert [2002] 2 AC 545, 563 (Lord Slynn), 572–4 (Lord Steyn), 588 (Lord Hope), 620–5 (Lord Hoffman)).

[137] See Mohamed Elewa Badar, ‘Basic Principles Governing Limitations on Individual Rights and Freedoms in Human Rights Instruments’ (2004) 7(4) International Journal of Human Rights 63.

[138] Opened for signature 16 December 1966, 999 UNTS 302 (entered into force 23 March 1976).

[139] Ministry of Justice, New Zealand, The Guidelines on the New Zealand Bill of Rights Act 1990: A Guide to the Rights and Freedoms in the Bill of Rights Act for the Public Sector (2004) New Zealand Ministry of Justice <http://www.justice.govt.nz/pubs/reports/2004/bill-of-rights-guidelines/index.html> .

[140] Jacobs, above n 57, 22 (emphasis in original).

[141] Ibid.

[142] In 2002–03, RISs and regulatory policy issues were discussed on 37 occasions in the Commonwealth Parliament: Productivity Commission, Regulation and Its Review 2002–03, above n 48, 83.

[143] See above n 90 and accompanying text.

[144] See above n 72 and accompanying text.

[145] This is not to say that the government’s budgetary decisions must be renegotiated because a HRIS says that, for example, the government should do more to redress indigenous disadvantage or urban homelessness. HRIS analysis takes place in the wider policy context and within the constraints imposed by it. What a HRIS can do is identify the nature of the constraints under which policy is formulated and the rights impact of those constraints.

[146] Elizabeth Kelly, ‘Human Rights Act 2004: A New Dawn for Rights Protection?’ [2004] AIAdminLawF 11; (2004) 41 AIAL Forum 30, 33.

[147] See above n 39 and accompanying text. The recommendation should also extend beyond preparation of legislative proposals.

[148] Department of the Prime Minister and Cabinet, New Zealand, Cabinet Manual (2001) 69–70.

[149] Lester, above n 131, 4.

[150] Elizabeth Kelly, ‘Government in the ACT: A Human Rights Dialogue’ (Speech delivered at the Assessing the First Year of the ACT Human Rights Act Conference, Australian National University, Canberra, 29 June 2005) <http://cigj.anu.edu.au/link_documents/Elizabeth_Kelly.pdf> .

[151] Kinley, ‘Parliamentary Scrutiny of Human Rights’, above n 11, 163 (emphasis in original).

[152] As well as other economically oriented analyses, such as cost assessment.

[153] Jacobs, above n 57, 20–1; Wilkinson, above n 99, 334.

[154] Regulatory Consulting Group, above n 99, 25.

[155] Kinley, ‘Parliamentary Scrutiny of Human Rights’, above n 11, 163–6.

[156] Ibid 166.

[157] Ibid 167.

[158] This is not to underestimate the significance of the final political judgement that must be made by Parliament on legislative proposals.

[159] See discussion above nn 13–14 and accompanying text.

[160] David Feldman, ‘The Impact of Human Rights on the UK Legislative Process’ (2004) 25 Statute Law Review 91, 112–13.

[161] Private Property Protection Bill 2003 (Qld) cl 4. See now the Private Property Protection Bill 2004 (Qld).

[162] Private Property Protection Bill 2003 (Qld) cl 7(1).

[163] Private Property Protection Bill 2003 (Qld) cl 7(1).

[164] Explanatory Notes, Private Property Protection Bill 2003 (Qld) 1 <http://www.legislation.qld .gov.au/Bills/50PDF/2003/PrivPropProB03_PExp.pdf> .

[165] Private Property Protection Bill 2003 (Qld) cls 15(1)(b), 15(2).

[166] See above Part II.

[167] See Winterton, above n 13.

[168] Ibid 795.

[169] Arguably a better French model to investigate would be that of the administrative sections of the Conseil d’État, which review proposed legislation against concerns of legal and administrative workability in light of French constitutional values and procedures, treaty obligations and European Community law: John Bell, ‘What is the Function of the Conseil d’Etat in the Preparation of Legislation?’ (2000) 49 International and Comparative Law Quarterly 661, 667. The members of the Conseil are career public servants; this provides for a more formal pre-legislative consultation process, which is less dependent on ‘serendipity’ and is less beholden to lobby groups and departments promoting their own interests: at 662–3. A special rapporteur consults with the relevant ministry and introduces the proposal to the Conseil for debate, which then redrafts the Bill in question before it is put to the legislature: at 663–4.

[170] Winterton, above n 13, 795–6.

[171] Ibid.

[172] Ibid 796.

[173] Ibid.

[174] Ibid 796–7.

[175] Ibid 796.

[176] Ibid 797. The model would have to be different in relation to the Commonwealth Parliament, as opposed to the state Parliaments, because entrenched constitutional provisions define certain aspects of parliamentary procedure. The role of the Council could be advisory only, its deliberations would have to precede (rather than follow) parliamentary deliberation, and passage of rights-incompatible legislation could not be made dependent on a special majority: at 798.

[177] As well as the Australian commitment to the separation of powers. In Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, the High Court held that it could not be given an advisory jurisdiction. This may be contrasted with the Canadian power to refer questions of constitutionality, including compatibility with the Canadian Charter, to the Supreme Court under s 53 of the Supreme Court Act, RSC 1985, c S-26. That power has recently been invoked in the Reference by the Governor in Council concerning the Proposal for an Act Respecting Certain Aspects of Legal Capacity for Marriage for Civil Purposes [2004] 3 SCR 698 (‘Same Sex Marriage Reference’).

[178] Winterton, above n 13, 794 (emphasis in original).

[179] Ibid 797.

[180] Ibid 794.

[181] [1998] HCA 49; (1998) 194 CLR 247, 262–3 (Gaudron, Gummow and Kirby JJ) (citations omitted).

[182] Daryl Williams, ‘The Role of an Australian Attorney-General: Antipodean Developments from British Foundations’ (Lecture delivered to the Anglo-Australasian Lawyers Society (UK), London, 9 May 2002) [86].

[183] Jacobs, above n 57, 22.

[184] Productivity Commission, Regulation and Its Review 2002–03, above n 48, 17.

[185] Ibid 43.

[186] See ibid 23–42.

[187] OECD, Regulatory Policies in OECD Countries, above n 59, 101, quoted in ibid 94.

[188] Cf Productivity Commission, Regulation and Its Review 2000–01, above n 84, 49–50, where a review suggested procedural mechanisms for achieving this aim: requiring a series of increasingly elaborate RISs throughout the policy process. Thus, in the HRIS context, the requirement might become a fourfold requirement for an initial HRIS (when considering the need for regulation), a partial HRIS (when seeking approval to work on developing regulatory proposals), a full HRIS (at the decision-making stage) and a final HRIS (at the tabling stage). The United Kingdom model of initial and subsequent statements on the compatibility of legislation with the Human Rights Act 1998 (UK) c 42 is comparable: see Lester, above n 131, 20–1.

[189] Jacobs, above n 57, 22.

[190] Law Reform Committee, Parliament of Victoria, Regulatory Efficiency Legislation, Report No 61 (1997) 140. See also OECD, Regulatory Reform, above n 100, 32–3.

[191] This can be contrasted with the situation in Canada, where the executive’s statutory obligation to advise Parliament when legislation may be incompatible with the Canadian Charter is framed in relation to arguments that would be made before the judiciary, ie whether a credible Charter argument can be mounted: Hiebert, Charter Conflicts, above n 126, 10. The result is a political culture that prevents proposals that would not survive judicial scrutiny from even reaching the legislature: Christopher Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (2nd ed, 2001) 176–81.