House of Representatives

Explanatory Memorandum

Circulated By Authority of the Attorney-General, the Honourable Robert Mcclelland MP

Outline

The Bill contains consequential amendments that arise as a consequence of the Human Rights (Parliamentary Scrutiny) Bill 2010 and other matters. The two Bills implement the legislative elements of Australia's Human Rights Framework announced by the Government in April 2010. The Human Rights Framework outlines a range of measures to further protect and promote human rights in Australia.

The key amendments in Schedule 1 are as follows:

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amend the Administrative Appeals Tribunal Act 1975 to include the President of the Australian Human Rights Commission, as established by subsection 8(1) of the Australian Human Rights Commission Act 1986, as an ex officio member of the Administrative Review Council

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amend the AAT Act to increase the quorum of the ARC from four to five members, and

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amend the Legislative Instruments Act 2003 to require an explanatory statement in respect of a disallowable legislative instrument to contain a statement of compatibility prepared under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2010.

Financial Impact Statement

The amendments in this Bill have no financial impact on Government revenue.

Part 1 - Preliminary

Clause 1: Short title

Clause 1 provides that when the Bill is enacted, it is to be cited as the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Act 2010.

Clause 2: Commencement

Schedule 1, item 4 will commence at the same time as Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2010 commences, which is the later of 1 January 2011 and the 28th day after that Act receives the Royal Assent.

The remaining provisions in the Bill will commence on the day it receives the Royal Assent.

Clause 3: Schedule(s)

Clause 3 is a machinery provision. Subclause 3(1) provides that each Act specified in a Schedule to the Bill is amended or repealed as set out in the applicable items in the Schedule and any other item in the Schedule has effect according to its terms.

Schedule 1 - Amendments

Administrative Appeals Tribunal Act 1975

Item 1: After paragraph 49(1)(b) (Composition of the Council)

This clause inserts in subsection 49(1), which deals with the composition of the Administrative Review Council, a new paragraph (ba) after (b) to include as a member of the Council the President of the Australian Human Rights Commission established by the Australian Human Rights Commission Act 1986.

Item 2: Subsection 49(3)

This clause inserts in subsection 49(3) a new paragraph (ba) after (b) consequential upon the amendment made by Item 1.

Item 3: Subsection 56(4)

Item 3 omits in subsection 56(4) 'four members' and inserts 'five members'. With the inclusion of the President of the Australian Human Rights Commission, and the Australian Information Commissioner (inserted by the Freedom of Information Amendment (Reform) Act 2010), as ex officio members of the Administrative Review Council, there will be five ex officio members of the Council. This will bring the total minimum membership of the Council from six to eight. Consistent with the principle that the number constituting a quorum should reflect a majority of members, this item increases the quorum of the Council from four to five.

Legislative Instruments Act 2003

Item 4: After paragraph (e) of the definition of explanatory statement

Item 4 inserts in the definition of 'explanatory statement' (subparagraph 4(1)) a provision that if section 42 of the Legislative Instruments Act (disallowance) applies, an explanatory statement contains a statement of compatibility prepared under section 9(1) of Human Rights (Parliamentary Scrutiny) Act.

This amendment is to operate in conjunction with the provisions in Part 3 of the Human Rights (Parliamentary Scrutiny) Bill 2010 which define statements of compatibility and require a rule-maker to cause a statement of compatibility to be prepared in respect of disallowable legislative instruments.

The Legislative Instruments Act sets out the process for tabling in Parliament of legislative instruments and accompanying explanatory statements. Requiring statements of compatibility to be part of the explanatory statement for disallowable legislative instruments will have the effect of applying these tabling requirements to statements of compatibility. As a result there will be complementary requirements for statements of compatibility for bills and disallowable legislative instruments: under the Legislative Instruments Act a statement of compatibility will be required to be tabled in Parliament at the time of tabling a disallowable legislative instrument, and under the Human Rights (Parliamentary Scrutiny) Act, a statement of compatibility for a bill will be required to be presented to Parliament at the time of introducing a bill.