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    4.5 Human rights – Statements of Compatibility

    All Bills that are introduced into Parliament after the commencement of the substantive provisions of the Human Rights Act 2019 (1 January 2020) must be accompanied by a Statement of Compatibility (as per section 38 of the Act). This applies to government Bills and Private Members’ Bills. A Statement of Compatibility must set out whether, in the opinion of the Member who has introduced the Bill, the Bill is compatible or incompatible with the human rights set out in the Act, and set out reasons that explain how a Bill is compatible or otherwise, and the nature and extent of any incompatibility. Statements of Compatibility are to be prepared by departmental officers (for government Bills) or the member’s staff (for private members’ Bills).

    A member introducing a Bill must also table the accompanying Statement of Compatibility in the Legislative Assembly.

    If any amendment to a Statement of Compatibility is required, this should be done through a separate errata document.

    4.5.1 Override declarations

    In exceptional circumstances, s 43 of the Act provides that an override declaration can be used by Parliament to expressly declare that a new Act or provision of an Act is to operate despite being incompatible with 1 or more human rights or despite anything else in the Human Rights Act (Part 3, Division 2 of the Act). The effect of the override will be that, to the extent of the declaration, the Human Rights Act will not apply to the Act/provision for which the override declaration has been made (section 45(1) of the Act).

    This may mean that the other provisions in the Act – such as the role of the Courts in interpreting legislation and the power to issue declarations of incompatibility – will not apply. The Act makes it clear that override declarations should only be used in exceptional circumstances, such as war or an exceptional crisis situation constituting a threat to public safety, health or order.

    If an override declaration is made, then a statement about the exceptional circumstances is required to explain to Parliament the need for the override (section 44(1) of the Act).

    A provision that includes an override declaration expires 5 years after the day it commences, or on an earlier day stated in the Act. However, Parliament may re-enact the override at any time (sections 45(2) and 46).

    Policy officers considering use of an override declaration should consult with the Human Rights Unit at DJAG before proceeding with drafting instructions.

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    Last updated:
    15 January, 2020
    Last reviewed:
    13 November, 2013