5.3 Parliamentary scrutiny and the PJCHR (a) Context (b) Functions Parliamentary scrutiny in Australia has a long history. The creation of the PJCHR in 2011 added to the number of committees established since 1932 that consider whether Commonwealth laws encroach upon rights.1 The PJCHR has 3 functions as set out in s 7 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth): The Senate Standing Committee on Regulations and Ordinances was established in 1932 to review delegated legislation.2 In 2009, the National Human Rights Consultation, chaired by Fr Frank Brennan SJ, showed support for greater parliamentary scrutiny in relation to human rights, and the limited capacity of the existing scrutiny committees ‘to engage in comprehensive human rights scrutiny’.3 Consequently, the PJCHR was established to examine all bills and legislative instruments – including legislative instruments exempt from disallowance – that come before either House of Parliament, for compatibility with human rights as set out in the ICCPR,4 the ICESCR,5 and a number of other international instruments.6 The PJCHR seeks to determine whether identified limitations on rights are justifiable through a limitation assessment, including that of necessity and proportionality. The PJCHR was modelled on the UK Joint Committee on Human Rights, which was established at the time of the passage of the UK Human Rights Act in 1998, which is the Committee’s principal point of reference.7 The PJCHR is an important scrutiny mechanism that enables pre-legislative consideration of human rights and may prevent breaches. It is a key component of the dialogue model (see chapter 4), and aims to enhance human rights protection in Australia. It will improve parliamentary deliberation with respect to human rights and enhance the quality of legislation itself – especially at the policy‑making or legislative drafting stage.8 102 (a) to examine bills and legislative instruments coming before the Parliament for compatibility with human rights (b) to examine current Acts for compatibility with human rights (c) to inquire into any matter relating to human rights that is referred to the Committee by the Attorney‑General. The vast majority of the PJCHR’s work has fallen under the function in s 7(a), the scrutiny function, of examining bills and legislative instruments.9 In its first 10 years of operation, from 2011–2021, the PJCHR considered 2,254 bills and more than 18,000 legislative instruments.10 Until July 2021, the PJCHR was the only parliamentary committee able to conduct routine scrutiny of exempt delegated legislation.11 As explained in the Committee’s 2020 Annual Report: The committee’s main function of scrutinising legislation is pursued through dialogue with ministers. Accordingly, where legislation raises a human rights concern which has not been adequately explained in the relevant Statement of Compatibility, the committee’s usual approach is to publish an initial report setting out the human rights concerns it has in relation to the legislation and advising that it intends to seek further information from the minister. Any response from the minister is subsequently considered and published alongside the committee’s concluding report on the matter. As well as making concluding remarks on the human rights compatibility of the relevant legislation, the committee may make recommendations to strengthen the compatibility of the legislation with Australia’s human rights obligations.12 FREE & EQUAL: Revitalising Australia’s Commitment to Human Rights