Dissenting Report by Labor and Greens
members[1]
1.1
Australian Labor Party and Australian Greens members (dissenting
members) of the Parliamentary Joint Committee on Human Rights (committee) seek
to issue dissenting remarks in relation to three bills on which the committee has
concluded, namely the:
- Australian Citizenship Amendment (Citizenship Cessation) Bill
2019;
- Social Security (Administration) Amendment (Income Management to
Cashless Debit Card Transition) Bill 2019; and
- Social Services Legislation Amendment (Drug Testing Trial) Bill
2019.
1.2
The dissenting members consider it regrettable that it has again become
necessary to prepare yet another dissenting report for this previously non-partisan
committee.
1.3
However, the important mandate of this committee to examine bills for
compatibility with the rights and freedoms recognised or declared by the seven
core international human rights treaties that Australia is a signatory to must
be discharged by its members.
1.4
As members of this committee, we must never lose sight of the
committee’s important mandate. This committee does not exist to be partisan;
and it does not exist to rubber-stamp government policy, irrespective of the
political party occupying the Treasury benches. The legislation scrutinised in
this report deserves to be properly considered by this committee through a
human rights framework, that appropriately applies international human rights
law.
Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
1.5
This bill seeks to provide the Minister for Home Affairs (the minister)
with the discretionary power to determine that a person ceases to be an
Australian citizen in certain broad circumstances. As set out in the
international human rights legal advice contained in the concluding comments of
the report, citizenship cessation engages and limits the rights to freedom of
movement and liberty and the rights of the child and the protection of the
family. While these rights may be subject to permissible limitations under
international human rights law, the dissenting members consider it has not been
demonstrated that these proposed measures are sufficiently certain such that
people would understand the circumstances under which the minister may restrict
the exercise of their rights.
1.6
In addition, noting that the government considers it can adequately deal
with any threat posed by Australian citizens who are not dual nationals without
the need to cease their Australian citizenship, the dissenting members consider
it has not been established that the measures are strictly necessary as a
matter of international human rights law, and as such, on the information
provided by the minister, it is not possible to conclude that the measures
pursue a legitimate objective for the purposes of international human rights
law.
1.7
The dissenting members consider that questions also remain as to whether
the measures are necessarily rationally connected to the stated objectives, or
are a proportionate means of achieving those objectives. In particular, it does
not appear that the measures are sufficiently circumscribed, noting in
particular the breadth of the minister’s powers. Nor do they appear to contain
sufficient safeguards, particularly to ensure adequate consideration is given
to the best interests of the child and protection of the family and to ensure
adequate rights of review. The dissenting members note that permanently ceasing
the citizenship of a child as young as 10 or 14[2]
would subject the child to an irrevocable decision, which could adversely
impact their short to long term development and heighten their vulnerability.
The dissenting members consider that it may be inconsistent with Australia’s
obligations to treat other considerations as of equal weight to the obligation
to consider the best interests of the child. The dissenting members also consider
the measures do not appear to constitute the least rights restrictive approach
to achieve the stated objectives, noting that there already exist a range of
other methods to protect national security and the amendments apply
retrospectively.
1.8
In addition, the citizenship cessation determination outlined in this
bill could cause a person, whose ex-citizen visa would be cancelled on
character grounds, to be classified as an unlawful non-citizen and liable for
removal from the country. As such, the measures engage Australia's obligations
of non-refoulement and the right to an effective remedy. As set out in the
international human rights law advice, pursuant to Australia's non-refoulement
obligations under international law,[3]
Australia must not return any person to a country where there is a real risk
that they would face persecution, torture or other serious forms of harm, such
as the death penalty; arbitrary deprivation of life; or cruel, inhuman or
degrading treatment or punishment.[4]
Non-refoulement obligations are absolute and may not be subject to any limitations.
In addition, the obligation of non-refoulement and the right to an effective
remedy require an opportunity for independent, effective and impartial review
of decisions to deport or remove a person.[5]
It is not clear how the minister would consider the absolute prohibition
against non-refoulement in the context of these determinations, noting that
such consideration is not currently included in the matters to which the
minister must have regard pursuant to proposed section 36E. There is no right
to merits review of a decision that is made personally by the minister to
refuse or cancel a person's visa on character grounds, or of the original
decision to cancel the person's citizenship.[6]
As set out in the international human rights law advice, judicial review in the
Australian context is not likely to be sufficient to fulfil the international
standard required of 'effective review' of non-refoulement decisions,[7]
as judicial review is only available on a number of restricted grounds and
represents a limited form of review. Accordingly, the availability of merits
review would likely be required to comply with Australia's obligations under
international law.
1.9
As such, the dissenting members consider there is a significant
risk that the cessation of citizenship provisions as set out in the bill, as
currently drafted, could result in a person being denied their right to freedom
of movement, including their right to enter, remain in, or return to their ‘own
country’. There is also a risk that the cessation of a person’s citizenship,
making them a non-citizen, could result in them being placed in mandatory
immigration detention, which could result in an impermissible limitation on
their right to liberty. Further, as the bill would allow the minister to cease
the citizenship of a child as young as 10 or 14, with the best interests of the
child only to be considered alongside a list of other considerations, and
without any specific requirement that the minister consider the importance of
protecting the right to family, the dissenting members consider there is a
significant risk that the rights of the child and the protection of the family
will not be adequately protected.
1.10
The dissenting members also consider that the measures which
provide the minister with the discretionary power to cease a person’s
citizenship, resulting in a loss of a right to remain in Australia (noting that
any ex-citizen visa is highly likely to be cancelled on character grounds),
risk resulting in such persons being subject to removal to countries where they
may face persecution. As such, the dissenting members consider the measures may
not be consistent with Australia’s non-refoulement obligations and the
right to an effective remedy. The dissenting members consider this risk may be
reduced if proposed section 36E included a specific requirement that the
minister must consider whether the person, if removed from Australia following
loss of citizenship, would be at risk of persecution or other forms of serious
harm (and independent merits review of this decision were available).
1.11
We draw these human rights concerns to the attention of the
minister and the Parliament.
Social Security (Administration) Amendment (Income Management to Cashless
Debit Card Transition) Bill 2019
1.12
This bill seeks to extend the date for existing Cashless Debit Card
trials (currently in Ceduna, East Kimberly, the Goldfields, and the Bundaberg
and Hervey Bay region) to 30 June 2021.[8]
It also seeks to establish the Northern Territory and Cape York areas as
Cashless Debit Card trial areas[9]
(transitioning all current income management regime participants in those areas
to the Cashless Debit Card scheme).[10]
1.13
This bill engages and limits the rights to privacy, social security, and
equality and non-discrimination. As set out in the international human rights
legal advice contained in the concluding comments of the report, the measures
associated with this bill significantly intrude into the freedom and autonomy
of individuals to organise their private and family lives by making their own
decisions about the way in which they use their social security payments. They
also appear to have a disproportionate impact on First Nations People.[11]
1.14
While the expansion of the cashless debit card trial appears to seek to
achieve a number of legitimate objectives,[12]
the dissenting members consider it is unclear whether the proposed cashless
welfare scheme expansion is rationally connected with (that is, effective to
achieve) those objectives, noting the mixed results outlined in the trial
evaluations completed to date.[13]
Additionally, the dissenting members consider it does not appear that the
proposed measures are proportionate to the objectives sought to be achieved. In
particular, there appears to be extremely limited capacity for flexibility to
treat different cases differently, as the scheme applies to all persons on
particular welfare payments in trial locations, and not only those deemed to be
at risk. A human rights compliant approach requires that any such measures must
be effective, subject to monitoring and review and genuinely tailored to the
needs and wishes of the local community. The dissenting members consider the current
approach, with its apparent lack of genuine consultation, amendments to the
evaluation process and lack of legislative requirement to respect community
wishes before amending the amount of restrictable income, falls short of this
standard.
1.15
As such, the dissenting members consider it has not been clearly
demonstrated that the extension of the cashless debit card trial is a
justifiable limit on the rights to social security and privacy or, to the
extent that the trial has a disproportionate impact on First Nations People,
that it is a reasonable and proportionate measure and therefore not
discriminatory.
1.16
We draw these human rights concerns to the attention of the
minister and the Parliament.
Social Services Legislation Amendment (Drug Testing Trial) Bill 2019
1.17
The bill seeks to establish a two year trial of mandatory drug-testing
in three regions, involving 5,000 new recipients of Newstart Allowance and
Youth Allowance. Under this scheme, recipients who test positive would be
subject to income management for 24 months and be subject to further
random drug tests. Recipients who test positive to more than one test during
the 24 month period would be referred to a contracted medical professional for
assessment.[14]
If the medical professional recommends treatment, the recipient would be required
to complete certain treatment activities, such as counselling, rehabilitation
or ongoing drug testing, as part of their employment pathway plan.[15]
Recipients who do not comply with their employment pathway plan, including drug
treatment activities, would be subject to a participation payment compliance
framework, which may involve the withholding of payments.
1.18
As set out in the international human rights law advice contained in the
concluding comments of the report, the mandatory drug testing of welfare
recipients, subjecting persons to income management and suspending welfare
payments, engages and limits a number of human rights, including the rights to
privacy, social security, adequate standard of living and equality and
non-discrimination.
1.19
The dissenting members consider that while the measures seek to achieve
the legitimate objectives of the early treatment of harmful drug use to prevent
drug dependency and to address barriers to employment created by drug
dependency, it has not been demonstrated that the proposed measures are
rationally connected (that is, effective to achieve) those objectives, as no
evidence was provided from any international trials to indicate if the
drug-testing of welfare recipients is likely to be effective to achieve the stated
objectives. It remains unclear that the testing for the single use of an
illicit drug, which does not measure a person's level of impairment, abuse or
dependency,[16]
demonstrates that a person is likely to have barriers to employment or
dependency.[17]
It also remains unclear whether income management and, in certain
circumstances, reducing the payments of persons who fail to undertake treatment
activities, would be an effective or proportionate means of ensuring job
seekers get the support they need to address drug dependency issues.
1.20
The dissenting members also consider that it has not been demonstrated
that the measures are a proportionate means of achieving the stated objectives.
The dissenting members note that the government has not explained how individuals
who have their payments suspended will be able to meet their basic needs for
food and housing, which raises questions as to whether this measure would
comply with the obligation to provide an adequate standard of living.[18]
It also appears that the process to remove income quarantining where it is not
necessary or appropriate to an individual's circumstances is limited, as is the
availability of independent review. It is also not clear that other, less
rights restrictive, methods have been trialled to improve a job seeker's
capacity to find employment, participate in education or training, and receive
medical treatment.
1.21
Consequently, the dissenting members consider there is a
significant risk that the measures proposed by the bill would unjustifiably
limit the rights to privacy, social security, adequate standard of living and
equality and non-discrimination.
1.22
We draw these human rights concerns to the attention of the
minister and the Parliament.
Graham
Perrett MP Steve Georganas MP
Deputy
Chair Member for
Adelaide
Member
for Moreton
Senator
Nita Green Senator Pat Dodson
Senator
for Queensland Senator for Western
Australia
Senator
Nick McKim
Senator
for Tasmania
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