Requiring Parliament to consider human rights

A Human Rights Act for Western Australia would benefit us all by requiring Parliament to take human rights into account during the law-making process. A Human Rights Act would provide for this in three ways:

a) All new Bills introduced to Parliament would be accompanied by a ‘Statement of Compatibility’. This Statement would address whether the Bill is consistent or compatible with human rights or articulate why the proposed law is a necessary, legitimate and proportionate limitation on human rights.

b) A prescribed parliamentary committee would consider any human rights issues raised by new Bills and provide a report to Parliament.

c) A Human Rights Act would provide a vocabulary through which proposed legislation can be discussed and concerns related to human rights can be articulated with precision.

This framework would encourage a culture of human rights within the WA parliament by placing human rights at the centre of government decision-making.

In other jurisdictions with human rights legislation, this process of parliamentary scrutiny has led to robust dialogue between parliament and the public focusing on the potential human rights impacts of proposed legislation. These benefits are illustrated by the following case studies.

Case study: Human rights in the context of Voluntary Assisted Dying laws

In 2017, Victoria became the first Australian state to pass a Voluntary Assisted Dying law, the Voluntary Assisted Dying Act 2017 (Vic). As required by the Victorian Charter, the proposed Bill was accompanied by a Statement of Compatibility addressing the significant human rights considerations. The Victorian Charter provided the vocabulary for members of Parliament and the public to debate these human rights issues. Members of Parliament in favour of the Bill argued that supporting voluntary assisted dying is a human rights issue – allowing people the choice to die with dignity, under the safest and most rigorous framework possible. Other members expressed reservations regarding safeguards surrounding the Bill, arguing that the statement of compatibility did not expressly discuss whether the Bill limited the right not to be arbitrarily deprived of life, and that the deprivation of life by assisted dying may be ‘arbitrary’ if the person’s consent is the result of outside pressure, irrationality or depression.

Following this dialogue on these human rights issues, the Bill was amended to strengthen the psychiatric assessment procedures that are required before Victorian adults suffering with a serious incurable condition are able to self-administer a lethal dose of medication. In turn, the amended Bill strongly influenced the Voluntary Assisted Dying legislation introduced in Western Australia.

Case study: Considering human rights during the Covid-19 pandemic

In August 2020, the Victorian government sought to expand and extend the emergency powers it could use during the COVID-19 pandemic under the Public Health and Wellbeing Act 2008 (Vic). The Victorian Charter required Parliament to consider the significant human rights implications of these expanded powers.

Initially, the amending Bill had provided for a 12-month extension to the government’s use of emergency powers, and given authorised officers new powers to pre-emptively detain people. After significant public debate, the law was passed in an amended form that reflected a more proportionate and justifiable limitation on human rights under the Victorian Charter, including:

a) The extension of emergency powers was limited, and the law required greater transparency of executive decision making and added safeguards to protect individuals’ rights;
b) The proposed new powers allowing officers to pre-emptively detain people was removed from the Bill altogether.

The Victorian Charter assisted the law-making process by ensuring the amendments to the government’s emergency powers were more proportionate and compatible with human rights, while still achieving the primary purpose of the Bill.

Case study: Safeguarding the rights of people living with psychosocial disabilities

In 2015, the ACT Legislative Assembly had to consider the significant human rights issues raised by the introduction of involuntary mental health treatment in the Mental Health Act 2015 (ACT). The Explanatory Statement to the Act included a compatibility statement that involved lengthy and detailed scrutiny on whether and why the Bill was compatible with the human rights protections provided in ACT’s Human Rights Act, including the right to liberty and to self-determination.

The Scrutiny Report provided by the Standing Committee on Justice and Community Safety was particularly concerned with the provisions of the Bill that permitted the administration of electroconvulsive therapy, or the performance of psychiatric surgery, to a person who had not given consent, noting this is “a very significant intrusion upon the liberty of the relevant person”. All of the subsequent substantive amendments to the Bill were in response to the Scrutiny Report. For example, the Bill was amended to expand the ways in which a patient can give or refuse consent, by adding to ‘either orally or in writing’ the phrase ‘or by indicating in any other way’. This amendment made it clear that a person’s refusal of electroconvulsive therapy or psychiatric surgery did not need to be in writing or speech. The Legislative Assembly noted this was particular important for a person with literacy difficulties or whose mental illness may make it difficult or rare for them to communicate orally or in writing.

Case study: providing a rights framework for lawmaking and stakeholder consultation

Human Rights legislation has also provided a human rights framework for the lawmaking process and informed stakeholder consultations in the development and implementation of legislation and reforms.

When the Transport Integration Act 2010 was being developed, the Victorian government undertook significant stakeholder consultations. These consultations identified the relationship between the planning, management and operation of the state public transport system and the protection of human rights. Victoria’s Department of Transport reported that the Victorian Charter was an important tool for developing legislation that incorporates objectives of equity, access, affordability and social inclusion.

The 2019 amendments to the Birth, Deaths and Marriages Registration Act 1996 (VIC) are another example of parliament engaging with human rights in the lawmaking process. The reforms removed the requirement for trans people to undergo sex affirmation surgery in order to apply to change the record of sex on their birth registration. Those in support of the amendments argued that the reforms promoted the human rights of trans and gender diverse Victorians, including the right to equality and the right to privacy, for example by not inappropriately medicalising a person’s sex or gender identity. The Registry of Births, Deaths and Marriages also promoted the rights of people affected by the laws by implementing the reforms through an advisory group that included trans and gender diverse representatives.