Tools for assessing compatibility with human rights

The tools on this page are designed to assist Commonwealth public sector policy makers and legislation officers to undertake an initial assessment of the human rights compatibility of a proposed Bill or legislative instrument. They are not to be relied on as legal advice.

Commonwealth agencies subject to the Legal Service Directions 2017 requiring legal advice in relation to matters raised in these tools must seek that advice in accordance with the Directions.

Assessing the human rights compatibility of Bills and Legislative Instruments

The following flowchart is intended to assist with making an initial assessment of the human rights compatibility of a proposed Bill or legislative instrument. The flowchart can also be used when developing policy which is compatible with human rights.

The flowchart assists users to identify:

• what rights, if any, are engaged by a policy or legislative proposal
• whose rights they are
• the impact of the policy or legislation on human rights
• what other human rights resources they should refer to
• whether they need to seek legal advice on their policy or legislative proposal.

To use the flowchart, agencies will need to:

• understand the objective of policy or legislative proposal and consider which particular group or groups will be affected by the proposal
• be ready to consider all of the effects of their policy or legislative proposal, including whether:
  • it promotes or limits human rights
  • it is permissible to limit the human rights engaged
  • the limitation is aimed at achieving a legitimate objective
  • the limitation is rationally connected to the objective
  • the limitation is reasonable, necessary and proportionate to the objective.

The use of the flowchart is not a substitute for legal advice on a policy or a legislative proposal. Legal advice may also be necessary.

• Flowchart for assessing the human rights compatibility of Bills and Legislative Instruments

The flowchart is intended to be used with the Human rights guidance sheets which contain detailed information on the human rights in the seven core human rights treaties which Australia has ratified.

Policy triggers

The following policy triggers document has been developed to assist agencies to identify when human rights are engaged:

• Policy triggers

This is not an exhaustive list and should only be used as a guide. If you are unsure, seek further advice.

Information sheets

The information sheet on permissible limitations sets out the general principles for lawfully limiting rights and permitted purposes for restricting particular rights.

The information sheet on absolute rights explains which rights can never be subject to any limitations.