The Hon Rob Oakeshott MP Parliament House Canberrra ACT

From the Office of the President

The Hon Rob Oakeshott MP Alexander Ward Parliament House [email protected] Canberrra ACT 2600

Dear Mr Oakeshott,

MEETING TO DISCUSS LEGISLATIVE STANDARDS, PARLIAMENTARY JOINT COMMITTEE ON HUMAN RIGHTS AND OTHER ISSUES

I write to congratulate you on the historic agreement reached between yourself, the Hon. Tony Windsor MP and the Australian Labor Party on 7 September 2010 (the agreement). I also wish to raise some matters relevant to that agreement and some other matters of interest to the Law Council. I would be pleased if we could meet to discuss these matters further.

I enclose a copy of a letter that I have recently sent to the Prime Minister in relation to legislative standards in the 43rd Parliament. I also enclose copies of previous correspondence with the former Prime Minister, Mr Rudd in relation to similar issues.

As you will note from the most recent correspondence, I hoped that following the formation of the Gillard Government and its agreements with the Greens and a number of Independent Members of the 43rd Parliament, there would be improvements in legislative standards, particularly in timeframes for consultation on draft legislation. However that does not appear to be the case and I write to draw your attention to these concerns.

I also write to raise matters concerning the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010. These Bills were recently introduced into Parliament and examined by the Senate Legal and Constitutional Affairs Committee, which recommended amendments to them.

The Law Council is the peak body for Australian lawyers and represents around 56,000 lawyers through its Constituent Bodies, the State and Territory law societies and bar associations, as well as the Large Law Firm Group. The Law Council makes many submissions on legislative policy proposals and draft legislation, particularly when such legislation is being considered by Parliamentary Committees.

As outlined in the correspondence with the Prime Minister, the Law Council has previously observed that timeframes for consultation on draft legislation with stakeholders such as the Law Council have been too short in many instances. Attached to my most recent letter to the Prime Minister is a table of instances of short time frames in the 43rd Parliament.

GPO Box 1989, Canberra Law Council of Australia Limited Telephone +61 2 6246 3788 ACT 2601, DX 5719 Canberra ABN 85 005 260 622 Facsimile +61 2 6248 0639 19 Torrens St Braddon ACT 2612 www.lawcouncil.asn.au

While the Law Council acknowledges that urgent matters may necessitate short time frames for consultation, I consider that some recent examples of short time frames have not related to issues of such urgency.

The Law Council considers that the work of Parliamentary committees is vitally important to the development of good legislation and the value of this work is being eroded by short timeframes for consultation.

As also outlined in the letter, I consider that a consultation period of the order of six to 12 weeks is generally preferable and have sought the Prime Minister’s response to this suggestion and the other matters outlined in the letter. I would also be interested in your views on these matters, particularly in the light of the agreement which commits you and the Australian Labor Party to work together to pursue principles relating to transparent and accountable Government and improving the processes of Parliament.

Another important element in the development of good legislation is the way in which the Government responds to reports by Parliamentary Committees. Significant delays in responses or brief responses to the detailed consideration of draft legislation by Parliamentary Committees are also of concern to the Law Council.

I note that the agreement also provides for Government responses to House of Representatives or Joint Committee reports within six months of their presentation. If no such response is received, a statement of explanation from the relevant Minister is to be tabled and further processes are established to deal with the issue. I am pleased that on 29 September 2010, the Leader of the House of Representatives, the Hon. Anthony Albanese MP moved a motion in similar terms, which was agreed to by the House.

However, I also note that a similar process was included in recommendations by the House of Representatives Standing Committee on Procedure’s Inquiry into the effectiveness of the House Committee System, which reported in June 2010. There has been no Government response yet to that Committee report, which contains several other significant recommendations to improve the operation of House Committees.

I note that the Senate has also passed resolutions relating to Government responses to Committee reports requiring responses in three months but that studies have found that Government responses have sometimes taken over three years.

I consider that the issue of Government responses to Parliamentary Committee reports is also of vital importance to the development of good legislation. I would also be interested in your views on how the agreement is being implemented and whether any further improvements could be made in relation to mechanisms for improving Government responses.

I also encourage you to support the passage of the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010, preferably with the amendments recently recommended by the Senate Legal and Constitutional Affairs Committee. In the view of the Council, these Bills constitute a critical first step to address the gaps currently existing in human rights protection at the federal level by equipping Parliament with the tools to scrutinize new and existing laws for compliance with human rights.

2011 03 08 Ltr to Oakeshott Page 2 As you may be aware, the protection and promotion of human rights within Australia and the maintenance of the rule of law both at home and abroad is a major strategic priority for the Law Council. The Law Council has long been involved in efforts to improve human rights protections in Australian law and actively participated in the 2009 National Human Rights Consultation. Among the many recommendations for reform arising from this consultation was that a Joint Parliamentary Committee on Human Rights be established to scrutinize proposed and existing laws for compliance with human rights standards.

These Bills establish the Parliamentary Joint Committee on Human Rights (the Human Rights Committee) and set out the functions and administrative arrangements for the Committee. The Bills also introduce a requirement that all Bills and certain delegated legislation be introduced with a Statement of Compatibility indicating compatibility or otherwise with human rights.

The Law Council strongly supports the establishment of the Human Rights Committee and the introduction of Statements of Compatibility and for this reason generally supports the passage of the Bills. However, the Law Council has also expressed the view that a number of amendments should be made to improve the ability of the Human Rights Committee to perform its important human rights scrutiny function, and to the ensure that the proposed Statements of Compatibility are effective at highlighting if and how a Bill or a regulation complies with human rights. The Law Council made these views known during the Senate Committee on Legal and Constitutional Affairs inquiry into the Bills.

Many of the Law Council’s recommended amendments were reflected in the recommendations of the majority report of the Senate Committee on Legal and Constitutional Affairs, which was released on 28 January 2011.

The Opposition Senators on the Senate Committee prepared a separate report in which they expressed support for the concept of a Joint Parliamentary Committee on Human Rights but were strongly critical of certain aspects of the Bills, including the definition of ‘human rights’ and proposed that the definition in the Bill be replaced by a generic, non- prescriptive, source-based definition, such as that contained in Senate Standing Order 24 which guides the work of the existing Scrutiny of Bills Committee. The Opposition Senators also rejected the need for and utility of Statements of Compatibility and recommended that this component of the Bill be deleted.

The Law Council is concerned that the initial expression of bipartisan support for the establishment of a Human Rights Committee following the 2009 National Human Rights Consultation may not translate into Opposition support for the current Bills. It would be regrettable if the particular criticisms expressed by the Opposition Senators, despite their general support for the concept of a Human Rights Committee, have the effect of derailing this important step forward in human rights protection. For this reason, the Law Council strongly encourages you to carefully consider the Senate Committee’s report and to lend your support to the passage of the Bills, preferably with the amendments recommended by the Senate Legal and Constitutional Affairs Committee.

I would also be interested in your views on these Bills and would be very pleased to discuss the matters raised in this letter with you at a meeting with you.

The Law Council also has a number of other issues of interest to the national legal profession including access to justice and recruitment and retention of lawyers in rural,

2011 03 08 Ltr to Oakeshott Page 3 regional and remote areas and would welcome the opportunity to discuss these matters with you.

I look forward to hearing from you in relation to a possible meeting.

Yours sincerely,

Alexander Ward

8 March 2011

2011 03 08 Ltr to Oakeshott Page 4

From the Office of the President

The Prime Minister Alexander Ward The Hon Julia Gillard MP [email protected] Parliament House Canberra ACT 2600

Dear Prime Minister,

LEGISLATIVE STANDARDS

I write to congratulate you on your historic agreements in September 2010 with the Greens and a number of Independent Members of the 43rd Parliament, which provide important opportunities for improvements to legislative standards. One such opportunity relates to time frames for consultation on draft legislation and I would like to raise this matter with you, the Greens and the Independent Members of Parliament with whom you reached the agreements.

The Law Council has raised this issue in previous correspondence to the former Prime Minister, Mr Rudd of 20 August and 16 December 2009. The Law Council received a response from the then Prime Minister’s Parliamentary Secretary, the Hon. Anthony Byrne MP on 8 February 2010. Copies of this correspondence are attached.

As the Law Council has previously observed, timeframes for consultation with stakeholders such as the Law Council have sometimes been too short to allow the Law Council to contribute properly to the improvement of draft legislation. Attached to this letter is a table of instances of some very short time frames for contributions to Parliamentary Committee inquiries in the 43rd Parliament. While the Law Council acknowledges that urgent matters may necessitate short time frames, it would prefer to see longer time frames for consultation whenever possible.

I understand that the timeframes for consultations by Parliamentary Committees are set pursuant to relevant Parliamentary Standing Orders. However I also understand that the Government’s overall legislative priorities play a part in setting times for committee consultations and reports.

As indicated, some of the timeframes for submissions to Parliamentary Committees have been as short as eight days. The ability of the Law Council to provide considered feedback particularly in relation to complex draft legislation is limited by such short timeframes. Whenever possible, I consider that a consultation period of the order of six to 12 weeks is generally preferable.

I note that 12 weeks is the minimum period for written consultation in relation to policy proposals under the UK Code of Practice on Consultation, which the Law Council regards as a useful model. I also note that the Australian Government’s recently amended Best Practice Regulation Handbook refers to the UK code and recommends six to 12 weeks consultation as a guide for policy proposals. If such timeframes are considered appropriate for policy proposals, they also appear to be appropriate for consultation on the detailed implementation of the policy proposal into legislation.

The Law Council sometimes has to decline to make submissions to Parliamentary Committees on important legislation because it is impractical to do so in the short time allowed.

I note that your agreement with the Hon. Rob Oakeshott MP and the Hon. Tony Windsor MP provides for Government responses to House of Representatives or Joint Committee reports within six months of their presentation. If no such response is received, a statement of explanation from the relevant Minister is to be tabled and further processes are established to deal with the issue. I am pleased that on 29 September 2010, the Leader of the House of Representatives, the Hon. Anthony Albanese MP moved a motion in similar terms, which was agreed to by the House.

However, I also note that a similar process was included in recommendations by the House of Representatives Standing Committee on Procedure’s inquiry into the effectiveness of the House Committee System, which reported in June 2010. There has been no Government response yet to that Committee report, which contains several other significant recommendations to improve the operation of House Committees.

I consider that the issues of timeframes for consultations by Parliamentary Committees and for Government responses to their reports require further attention by your Government in order to improve legislative standards. I note that your agreements with the Greens and a number of the Independent Members of Parliament commit to working together to pursue principles relating to transparent and accountable Government and

2011 03 08 Ltr to PM re leg stands Page 2 improving the processes of Parliament. In this context, I would be grateful for your advice as to the concerns raised in this letter.

I look forward to your response.

Yours sincerely,

Alexander Ward

8 March 2011

cc Senator Bob Brown; The Hon. Rob Oakeshott MP; The Hon. Tony Windsor MP; The Hon. Andrew Wilkie MP

2011 03 08 Ltr to PM re leg stands Page 3

Annexure: Examples of Time Periods for Comments on Bills

Legislation Committee Announced Submissions Comments Due

Corporations Senate Economics 30 September 2010 15 October 2010 15 days Amendment (No.1) Committee Bill 2010

Inquiry into the Senate Select 12 October 2010 20 October 2010 8 days National Mining Tax Committee on New 2010 Taxes

Sex and Age Senate Legal and 30 September 2010 27 October 2010 27 days Discrimination Bill Constitutional Affairs 2010 Committee

Civil Dispute Senate Legal and 30 September 2010 27 October 2010 27 days Resolution Bill 2010 Constitutional Affairs Committee

Corporations Senate Legal and 30 September 2010 27 October 2010 27 days Amendment (Sons of Constitutional Affairs Gwalia) Bill 2010 Committee

Crimes Legislation Senate Legal and 30 September 2010 27 October 2010 27 days Amendment Bill Constitutional Affairs 2010 Committee

Telecommunications Senate Legal and 30 September 2010 27 October 2010 27 days Interception and Constitutional Affairs Intelligence Services Committee Legislation Amendment Bill 2010 Inquiry into Carbon Senate Select 13 October 2010 29 October 2010 16 days Tax Pricing Committee on New Mechanisms Taxes

Families, Housing, Senate Legal and 28 October 2010 15 December 2010 46 days Community Services Constitutional Affairs and Indigenous Committee Affairs and Other Legislation Amendment (Budget and Other Measures) Bill 2010