Chapter 2
Concluded matters
2.1
This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
2.2
Correspondence relating to these matters is included at Appendix 1.
Australian Immunisation Register Bill 2015
Australian Immunisation Register (Consequential and Transitional
Provisions) Bill 2015
Portfolio: Health
Introduced: House of Representatives, 10 August 2015
Purpose
2.3
The Australian Immunisation Register Bill 2015 (the bill) creates a new
legislative framework for the operation of Australian immunisation registers,
and repeals existing registers established under the Health Insurance Act
1973 and the National Health Act 1953.
2.4
The Australian Immunisation Register (Consequential and Transitional
Provisions) Bill 2015 provides for the consequential and transitional
provisions required to support the operation of the Australian Immunisation
Register Act 2015.
2.5
Together these bills provide for the expansion of immunisation registers
in two stages:
-
From 1 January 2016 the Australian Childhood Immunisation
Register (ACIR) will be expanded, so as to collect and record all vaccinations
given to young people under the age of 20 years (currently only vaccinations
given to children aged under seven years are collected and recorded); and
-
From late 2016 the register will be renamed the Australian
Immunisation Register (AIR) and will collect and record all vaccinations given
to every person in Australia from birth to death.
2.6
Measures raising human rights concerns or issues are set out below.
Background
2.7
The committee previously considered the bills in its Twenty-ninth
Report of the 44th Parliament (previous report) and requested further
information from the Minister for Health as to the compatibility of the bills
with the right to privacy and right to a fair trial (presumption of innocence).[1]
2.8
The bill passed both Houses of Parliament on 15 October 2015 and
achieved Royal Assent on 12 November 2015.
Use and disclosure of personal information from the Australian Immunisation
Register
2.9
Under the bills, from late 2016 all persons in Australia enrolled in
Medicare and, if not eligible for Medicare, anyone vaccinated in Australia,
will be automatically registered on the AIR. This will include the vast
majority of people in Australia, including those that choose not to receive
vaccinations. The AIR can include significant personal information.[2]
2.10
The committee considers that the use and disclosure of personal
information engages and limits the right to privacy.
Right to privacy
2.11
Article 17 of the International Covenant on Civil and Political Rights
(ICCPR) prohibits arbitrary or unlawful interferences with an individual's
privacy, family, correspondence or home. The right to privacy includes respect
for informational privacy, including:
-
the right to respect for private and confidential information,
particularly the storing, use and sharing of such information; and
-
the right to control the dissemination of information about one's
private life.
2.12
However, this right may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, they must seek to achieve a legitimate objective and be reasonable,
necessary and proportionate to achieving that objective.
Compatibility of the measure with
the right to privacy
2.13
The statement of compatibility for the bill acknowledges that the bill
engages the right to privacy but states that the engagement is 'reasonable,
appropriate and necessary for the objectives and purposes of the Bill'.[3]
2.14
The committee previously noted that the objectives of the bill appear to
include facilitating the establishment of records of vaccinations which will
assist with information about vaccination coverage; monitoring the
effectiveness of vaccinations; identifying areas of Australia at risk during
disease outbreaks; and promoting health and well-being.[4]
The committee considered that these objectives are likely to be considered
legitimate objectives for the purposes of international human rights law, and
the inclusion of information on the AIR is likely to be rationally connected to
these objectives.
2.15
However, it remained unclear whether all of the powers enabling the use,
recording and disclosure of information are proportionate to achieving those
objectives. In particular, the committee was concerned about the ability of the
minister to authorise a person to use or disclose protected personal
information for a purpose that the minister (or delegate) is satisfied is in
the public interest.
2.16
The statement of compatibility does not explain why it is necessary to
include this broadly defined power.[5]
2.17
Under international human rights law, when considering whether a
limitation on a right is proportionate to achieve the stated objective it is
necessary to consider whether there are other less restrictive ways to achieve
the same aim.
2.18
The committee also noted that the explanatory memorandum refers to
disclosure being limited to 'a specified person or to a specified class of
persons',[6]
however, clause 22(3) is not limited in this way but allows the minister to
authorise 'a person' to use or disclose protected information.
2.19
The committee therefore sought the advice of the Minister for Health as
to whether the limitation is a reasonable and proportionate measure for the
achievement of that objective, in particular whether the measure is
sufficiently circumscribed to ensure it operates in the least rights
restrictive manner.
Minister's response
I note the Committee's enquiry regarding the ability for I,
as the Minister for Health, to authorise (under subsection 22(3) of the Bill) a
person to make a record of, disclose or otherwise use protected information for
a specified purpose that I am satisfied is in the public interest.
The proposed subsection is consistent with existing powers I
have to certify that disclosure of protected information is necessary in the
public interest, as contained within paragraph 135A(3)(a) of the National
Health Act 1953 and paragraph 130(3)(a) of the Health Insurance Act 1973,
which currently apply to the National Human Papillomavirus Vaccination Program
Register and the Australian Childhood Immunisation Register (ACIR)
respectively.
An example of the type of authorisations these are, and when
this public interest power may be used, is where a child protection agency
requests information when investigating the welfare of a child. In the 2014-15
financial year, more than 18,000 authorisations occurred for this purpose,
authorised under paragraph 130(3)(a) of the Health Insurance Act 1973.
In this circumstance, the Department of Human Services who operates the ACIR on
behalf of my Department, releases information to child protection agencies [a]long
with the police to assist in the determination of a child's welfare. To assess
the child's welfare, ACIR information including whether a child is protected
against certain vaccine preventable diseases through their immunisation history
can be determined by child protection agencies.
Another example could involve a request by a vaccine supplier
or a vaccination provider to obtain the contact details of one or more vaccine
recipients in order to contact the individuals to inform them if a
manufacturing error or cold chain breach is identified in relation to a batch of vaccine stock. In
this circumstance, the release of the protected information from the register
would not fit within the purposes of the Australian Immunisation Register Bill
2015 as defined in section 10, and could only be released under a public
interest disclosure.
Such a power is considered necessary to provide an ability to
authorise use or disclosure where it does not fit within the purposes of the
Australian Immunisation Register Bill 2015, but there is a public interest in
the protected information being used or disclosed for that purpose. The
purposes for which there might be a public interest in use or disclosure cannot
be ascertained with certainty. Whether there is a public interest will depend on
a case by case assessment of any requests, and therefore this general public
interest power is required to create the ability to allow disclosure in
situations like the examples above.
I can assure the Committee that the decision to authorise a
person to make a record of, disclose or use protected information is not one
which is taken lightly. In making such decisions consideration would be given
to an individual's privacy and other interests, which would be balanced against
the identified public interest outcome. This limitation is a reasonable and
proportionate measure to achieve the intended objectives of the legislation and
as previously provided for under existing legislation will be applied in the
least restrictive manner protecting individual privacy.
I note your concern regarding the reference in the
explanatory memorandum, to information being able to be disclosed to 'a
specified person or to a specified class of persons'. You have expressed
concern that this wording does not appear in the text of the provision itself.
I draw the Committee's attention to subsection 22(3) which authorises me to disclose
protected information if I am satisfied it is in the public interest. The use
of the word 'disclose' inherently implies that information could be released by
me to another person or persons (i.e. the recipient of the information), which
I would specify when making my decision whether or not to release information.[7]
Committee response
2.20
The committee thanks the Minister for Health for her response.
2.21
In particular, the committee thanks the minister for providing examples
of when the public interest power may be used, including in cases of child
welfare and enabling vaccination recipients to be notified when there are
faulty batches of vaccines. The committee notes the minister's assurance that
'in making such decisions consideration would be given to an individual's
privacy and other interests' and that the limitation 'will be applied in the
least restrictive manner protecting individual privacy'.
2.22
However, the minister's response does not discuss or demonstrate how the
power to disclose protected information will be sufficiently circumscribed,
other than as a matter of policy, to ensure it operates in the least rights
restrictive manner and ensures against any disproportionate limitation on an
individual's right to privacy. For example, in response to the committee's
comment that words in the explanatory memorandum about limiting disclosure to 'a
specified person or to a class of persons' are not included in the bill, the
minister's advice is that:
the use of the word 'disclose' inherently implies that
information could be released by me to another person or persons (i.e. the
recipient of the information), which I would specify when making my decision
whether or not to release information.
2.23
In considering this response the committee notes the comments contained
in the 11th Report of the Senate Standing Committee for the Scrutiny
of Bills:
While it may be open for this implication to be made, and the
committee welcomes the Minister's commitment to specify the person or persons
to whom information could be released, the committee still considers that it
would assist if such a limitation were included in the text of the provision
itself. The committee's concern is that it would be possible for material to be
authorised for disclosure without specifying or limiting the authorised
recipients of the information.[8]
2.24
The measure, by empowering the minister to disclose protected
information to 'a person' rather than 'a specified person or to a class of
persons', appears to enable disclosure without specifying or limiting the
recipients of the information.
2.25
The committee also notes the minister's advice that disclosures of
information from the register relating to child welfare appear to occur
routinely under existing legislation. Given the thousands of disclosures that
occur in relation to child welfare it is unclear why disclosure to child
welfare authorities is not included in the bill as a specific object for which
disclosure may be authorised, rather than relying on the broad public interest
disclosure power in each instance.
2.26
In order to better protect the right to privacy, the committee
recommends that consideration be given to amendments to:
-
ensure that the disclosure of protected information is limited
to a specified person or class of persons;
-
include child welfare as a specific purpose for disclosure,
rather than relying on blanket public interest disclosure provisions in such
instances; and
-
ensure that, when disclosures are made on broad public
interest grounds, the decision-maker is required to consider the impact of such
disclosure on the privacy of an affected individual.
Reversal of the burden of proof
2.27
Clause 23 of the bill makes it an offence for a person to make a record
of, disclose or otherwise use protected information if that record, use or
disclosure is not authorised by the bill. Clauses 24 to 27 provide a number of
exceptions to this offence. These exceptions reverse the burden of proof.
2.28
The committee considers that the reversal of the burden of proof engages
and limits the right to a fair trial (presumption of innocence).
Right to a fair trial (presumption
of innocence)
2.29
The right to a fair trial and fair hearing is protected by article 14 of
the ICCPR. Article 14(2) of the ICCPR protects the right to be presumed
innocent until proven guilty according to law. Generally, consistency with the
presumption of innocence requires the prosecution to prove each element of a
criminal offence beyond reasonable doubt.
2.30
An offence provision which requires the defendant to carry an evidential
or legal burden of proof, commonly referred to as 'a reverse burden', with regard
to the existence of some fact engages and limits the presumption of innocence.
This is because a defendant's failure to discharge the burden of proof may
permit their conviction despite reasonable doubt as to their guilt.
2.31
Where a statutory exception, defence or excuse to an offence is provided
in proposed legislation, these defences or exceptions must be considered as
part of a contextual and substantive assessment of potential limitations on the
right to be presumed innocent in the context of an offence provision.
Compatibility of the measure with
the right to a fair trial
2.32
The statement of compatibility for the bill does not acknowledge that
the right to a fair trial is engaged by these measures.
2.33
The committee therefore sought the advice of the Minister for Health as
to whether the proposed changes are aimed at achieving a legitimate objective; whether
there is a rational connection between the limitation and that objective; and
whether the limitation is a reasonable and proportionate measure for the achievement
of that objective.
Minister's response
Proposed section 23 creates an offence if a person obtains
protected information, and makes a record of, discloses or otherwise uses the
information, where it is not authorised by section 22 of the Bill. Exceptions
to this offence are provided in sections 24 through to 27 to provide people
with a defence in certain circumstances.
An evidential burden placed on the defendant is not uncommon.
Similar notations to those used in the current Bill exist in many other [pieces
of] Commonwealth legislation (for example, subsection 3.3 of the Criminal
Code Act 1995 - where a person has an evidential burden of proof if they
wish to deny criminal responsibility by relying on a provision of Part 2.3 of
the Criminal Code). The defences used in the Australian Immunisation Register
Bill 2015 are modelled on those used in sections 586 to 589 of the Biosecurity
Act 2015.
In accordance with the Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers, the facts relating
to each defence in sections 24 to 27 of the Bill are peculiarly within the
knowledge of the defendant, and could be extremely difficult or expensive for
the prosecution to disprove whereas proof of a defence could be readily
provided by the defendant. The burden that sections 24 to 27 of the Bill impose
on a defendant is an evidential burden only (not a legal burden), and does not
completely displace the prosecutor's burden in proving the elements of the
offence in section 23 of the Bill.
Section 24 simply requires a person to produce or point to
evidence that suggests a reasonable possibility that the person made a record
of, disclosed or otherwise used protected information in good faith and in
purported compliance with section 22 of the Bill.
Section 25 requires that a person, who makes a record of,
discloses or otherwise uses protected information that is
commercial-in-confidence, produce or point to evidence to demonstrate that they
did not know that the information was commercial-in-confidence.
Section 26 requires that a person, who discloses protected
information, produce or point to evidence that the protected information was
disclosed to the person to whom the information relates.
Section 27 requires that a person produce or point to
evidence which indicates that the protected information that was disclosed to
another person was originally obtained from that same person.
The evidential burden in each of these circumstances can
easily be met by the defendant. In these circumstances, therefore, the
imposition of an evidential burden on the defendant is reasonable. [9]
Committee response
2.34
The committee thanks the Minister for Health for her response. The
committee considers that the response demonstrates that the defences provided
in the bill are likely to be peculiarly within the defendant's knowledge. Accordingly,
the committee considers that this aspect of the bill is likely to be compatible
with the right to a fair trial (presumption of innocence) and has concluded its
examination of this aspect of the bill.
Defence Legislation (Enhancement of Military Justice) Bill 2015
Portfolio:
Defence
Introduced: House of
Representatives, 26 March 2015
Purpose
2.35
The Defence Legislation (Enhancement of Military Justice) Bill 2015 (the
bill) sought to make a number of amendments to the Defence Force Discipline
Act 1982 (Defence Force Discipline Act) and the Defence Act 1903.
2.36
The bill also sought to amend the Military Justice (Interim Measures)
Act (No. 1) 2009 to extend the period of appointment of the Chief
Judge Advocate and full-time Judge Advocates by a further two years, making the
period of appointment up to eight years instead of six years.
2.37
Measures raising human rights concerns or issues are set out below.
Background
2.38
In 2005, the Senate Standing Committee on Foreign Affairs, Defence and
Trade conducted an inquiry into the effectiveness of Australia's military
justice system (the 2005 report).[10]
Following the 2005 report, legislation[11]
was introduced to create a permanent military court (the Australian Military
Court) which was intended to satisfy the principles of impartiality, judicial
independence and independence from the chain of command.[12]
2.39
In 2009 the High Court struck down this legislation as being
unconstitutional.[13]
In response, Parliament put in place a series of temporary measures pending the
introduction of legislation to establish a constitutional court. The Military
Justice (Interim Measures) Act (No. 1) 2009 (Interim Act) largely
returned the service tribunal system to that which existed before the creation
of the Australian Military Court.[14]
2.40
In 2013 the Military Justice (Interim Measures) Amendment Bill 2013
amended the Interim Act to extend the appointment, remuneration, and
entitlement arrangements of the Chief Judge Advocate and judge advocates by an
additional two years. The committee reported on this bill in its Sixth
Report of 2013.[15]
2.41
The committee then reported on the current bill in its Twenty-second
Report of the 44th Parliament, and requested further information
from the Minister for Defence as to whether the bill was compatible with the
right to a fair trial.[16]
The committee considered the Minister for Defence's response in its Twenty-sixth
Report of the 44th Parliament (previous report), and requested
further information in relation to this right in order to finalise its
consideration of the bill.[17]
2.42
The bill passed both Houses of Parliament on 25 June 2015 and achieved
Royal Assent on 30 June 2015.
Extension of the appointments of Chief Judge Advocate and judge advocates
2.43
Initially, the Interim Act provided a fixed tenure of up to two years
for both the Chief Judge Advocate and full-time judge advocates who were
appointed pursuant to the provisions of the Interim Act. This was extended in
2011 and 2013.[18]
That tenure is due to expire in September 2015. The bill amends Schedule 3
of the Interim Act to extend the appointment, remuneration, and entitlement
arrangements provided for in that Act for an additional two years. The bill
therefore provides a fixed tenure for the Chief Judge Advocate and current
full-time judge advocates of up to eight years, or until the Minister for
Defence declares, by legislative instrument,[19]
a specified day to be a termination day, whichever is sooner.
2.44
The committee previously considered that extending the operation of the
existing military justice system through extending the appointment period for
the Chief Judge Advocate and judge advocates engages and may limit the right to
a fair hearing and fair trial.
Right to a fair hearing and fair
trial
2.45
The right to a fair trial and fair hearing is protected by article 14 of
the International Covenant on Civil and Political Rights (ICCPR). The right
applies to both criminal and civil proceedings, to cases before both courts and
tribunals. The right is concerned with procedural fairness, and encompasses
notions of equality in proceedings, the right to a public hearing and the
requirement that hearings are conducted by an independent and impartial body.
2.46
Specific guarantees of the right to a fair trial in the determination of
a criminal charge guaranteed by article 14(1) are set out in article 14(2) to
(7). These include the presumption of innocence (article 14(2)) and minimum
guarantees in criminal proceedings, such as the right to not to incriminate
oneself (article 14(3)(g)) and a guarantee against retrospective criminal laws
(article 15(1)).
Compatibility of the measure with
the right to fair hearing and fair trial
2.47
The committee previously considered that extending the appointments of
the Chief Judge Advocate and full-time judge advocates, and thereby extending
the current system of military justice, may limit the right to a fair hearing.
The statement of compatibility does not address this issue. The committee
therefore sought the advice of the Minister for Defence as to whether extending
the operation of the existing system of military justice is compatible with the
right to a fair trial.
2.48
Having regard to the response and advice provided by the minister, and
relevant comparative human rights law jurisprudence,[20]
the committee considered in its previous report that the current structure for
conducting military justice would appear to meet the requirement that hearings
are conducted by an independent and impartial body.
2.49
However, the committee also considered that in determining whether a
tribunal can be considered 'independent', regard must also be had to the term
of office for those who conduct military justice hearings. The committee noted
that under the transitional provisions of the Interim Act, which the bill
extends, the Chief Judge Advocate and judge advocates are appointed for eight
years from the date of the Interim Act.[21]
However, the Interim Act also provides that the minister may declare in writing
any day to be the 'termination day' so the appointment of the Chief Judge
Advocate or judge advocates will end on this earlier date.[22]
There is no guidance as to when the minister may make such a declaration and
this declaration, while a legislative instrument, is specifically excluded from
being subject to disallowance.[23]
2.50
The European Court of Human Rights has said that the 'irremovability of judges by the executive during their term of
office must in general be considered as a corollary of their independence' and
this forms part of the requirement of a fair trial.[24] It is recognised that this irremovability does not always have
to be recognised in law, if it is recognised in fact and other necessary
guarantees are present. However, in this case, the opposite is true—the Interim
Act expressly gives the executive the power to remove the Judge Advocate
General and judge advocates simply by declaring a 'termination day'.
2.51
The committee noted that the requirements of independence and
impartiality are not just that the tribunal must be independent, but it must
also present an appearance of independence: it 'must also be impartial from an
objective viewpoint in that it must offer sufficient guarantees to exclude any
legitimate doubt in this respect'.[25]
The minister's power to terminate the appointment of the Judge Advocate General
and the judge advocates, at any time, raises concerns that the military courts
could be perceived as not being independent or impartial. The minister's
response did not address this aspect of the committee's concerns.
2.52
The requirement of competence, independence and impartiality of a
tribunal is an absolute right that is not subject to any exception, and this
applies to both civilian and military courts.[26]
It is therefore not possible to justify any limitation on this right.
2.53
Accordingly, the committee considered that enabling the executive
to terminate the appointments of the Chief Judge Advocate and judge
advocates at any time gives rise to a perception that the system of
military justice is not objectively independent. Therefore, the committee
sought the Minister for Defence's advice as to whether extending the
appointments of the Chief Judge Advocate and judge advocates, and thereby
extending the current system of military justice, limits the right to a fair
hearing.
2.54
Further, the committee sought the Minister for Defence's advice as to
whether the Interim Act should be amended to remove the power of the minister
to unilaterally revoke the appointments of the Chief Judge Advocate and judge
advocates.
Minister's response
I note for the Committee's benefit that the previous minister
recently appointed the full-time Judge Advocate to be the new Director of
Military Prosecutions, so the Committee's concerns now only relate to the Chief
Judge Advocate's (CJA) appointment.
While from one point of view the Military Justice (Interim
Measures) Act (No 1) 2009 (the Interim Measures Act) gives me the exercise
of a broad power, which has the effect of terminating the CJA's appointment, I
do not share the Committee's concern that I can terminate CJA's appointment for
any reason, or that the existence of the power limits an accused person's right
to a fair military trial. The power to prescribe a termination day under the
Interim Measures Act is not unfettered, and could not legitimately be exercised
for the purpose of attempting to influence the CJA in the performance of their
official duties. Rather, the primary purpose of the termination power is merely
to provide a mechanism to make changes which might be required if the current
'interim' system of military discipline was replaced with a new system, not to
terminate the CJA's appointment per se.
The Interim Measures Act was enacted following the 2009 High
Court decision in Lane v Morrison (2009) HCA 29, which declared the
military court system to be unconstitutional. The Interim Measures Act
reinstated the military tribunal system, which the High Court had declared in a
series of cases before Lane v Morrison to be constitutional. This was done
in order to sustain the military discipline system until such time as the
Parliament decided how to address the issue of the trials of serious service
offences. It was originally envisaged that the Interim Measures Act would
operate for a period of no more than two years.
The Interim Measures Act was amended by the Military
Justice (Interim Measures) Amendment Act 2011 (the first Amending Act) by
the then Labor Government when it became clear, as the then Minister for
Defence indicated in his Second Reading Speech, that a permanent solution to
the issue may not be enacted before the expiration of the Interim Measures Act.
The Government extended the operation of the Interim Measures Act by amending
Schedule 3 to it, so as to provide that the appointment, remuneration and
entitlement arrangements for the CJA and other Judge Advocates continued
unchanged for another two years. Additionally, the Interim Measures Act was
amended to provide that the Minister may declare in writing a specified day to
be the 'termination day' for the purposes of the Schedule to cease the
operation of the Act (the termination power).
Further two-year extensions to the Interim Measures Act were
enacted by the Military Justice (Interim Measures) Amendment Act 2013
(the second Amending Act), by the then Labor Government, and, again more
recently, by the Principal Act, by the current Government. As the previous
minister indicated in his Second Reading Speech to the Principal Act, it was
necessary to extend the CJA's and then the full-time Judge Advocate's
appointments so that the superior tribunal system could continue while the
Government considered further reforms to the military discipline system. I note
that each extension has retained the termination power.
The Explanatory Memorandum to the first Amending Act
indicated that the termination power was inserted to provide the Government of
the day with an expedient mechanism to end the interim superior service
tribunal system on commencement of the replacement system. In particular, paragraph
17 of the Explanatory Memorandum explained that the 'termination day is likely
to be the day upon which a permanent solution to the trial of serious service
offences is implemented'.
The exercise of the termination power would not simply
terminate the CJA's appointment. Rather, as the Explanatory Memoranda to the
first Amending Act and the Principal Act explain, the exercise of the power
would symbolically and practically bring an end to the interim disciplinary
arrangements. Accordingly, the primary purpose of the termination power is to
allow a single deemed statutory appointment to be brought to an end as a
necessary and incidental consequence of Parliament replacing the interim
arrangements with an enduring military discipline system. Considered in this
way, the termination power is designed to terminate the interim arrangements,
not the CJA's appointment per se.
Moreover, the exercise of the termination power is not
unfettered and cannot be arbitrarily used to terminate the CJA's appointment.
Like most statutory powers, the termination power cannot be exercised for an
improper purpose. The termination power cannot be used by me to influence the
CJA in the performance of their duties. Any attempt to use the termination
power in this way could of course be impugned on the basis of having been used
for an improper purpose. For example, in such circumstances, the CJA could seek
judicial review of the exercise of the termination power under section 75(v) of
the Constitution or section 39B of the Judiciary Act 1903.
I advise the Committee that for these reasons the extension
of the CJA's appointment through the Principal Act does not affect or limit an
accused person's right to a fair military trial and, accordingly, there is no
need to amend the Interim Measures Act.
I reiterate the previous minister's concluding remark in his
Second Reading Speech on the Principal Act that the Government is committed to
modernising the military discipline system. I expect to inform the Parliament
of our policy in relation to the future of the superior service tribunal system
at an appropriate time during the term of this Government.[27]
Committee response
2.55
The committee thanks the Minister for Defence for her response.
The committee appreciates the minister's advice that as the full-time Judge
Advocate was appointed as the new Director of Military Prosecutions the
committee's concerns relate only now to the Chief Judge Advocate's (CJA)
appointment.
2.56
The committee notes the minister's advice that the power to prescribe a
'termination day' is not unfettered and could not be used to terminate the
CJA's appointment per se, but that it could only be exercised if the current
interim system of military discipline is replaced with a new system. In
particular, the minister relies on the explanatory material that accompanied
the bill that brought in the power, which explained that 'termination day is
likely to be the day upon which a permanent solution to the trial of serious
service offences is implemented'. The committee notes the minister's advice
that exercise of the power would not simply terminate the CJA's appointment but
would 'symbolically and practically' bring to an end the interim disciplinary
arrangements.
2.57
However, while the committee accepts that the clear intention of the government
is that the CJA's appointment would only occur once the interim disciplinary
arrangements transition to more permanent arrangements, the legislation is not
restricted in this way. Rather, the Interim Act simply provides that the CJA's
appointment ends after eight years or on 'termination day', and that day may be
declared by the minister in writing. This declaration is not subject to
disallowance.
2.58
Therefore, an unfettered discretion is given to the minister to declare
a day to be 'termination day', as long as it is before the eight years already
specified as the CJA's term of appointment. The term 'termination day' applies
only to the termination of the appointment of the CJA and the judge advocates
(and it is otherwise only referenced by provisions relating to benefits that
accrue to the CJA and judge advocate upon termination). While termination of
the CJA's appointment may 'symbolically and practically' only occur when the
interim system of military justice ceases, legally, a minister's declaration
will simply end the appointment of the CJA; it will not end the interim system
of military justice. Rather, it is the committee's understanding that a new CJA
could be appointed under the current Defence Force Discipline Act 1982.[28]
2.59
As the committee has previously noted, the requirements of independence
and impartiality under the right to a fair hearing include that judges are
independent (and not able to be removed by the executive
during their term of office) and a tribunal must present an appearance
of independence. The requirement of competence, independence and impartiality
of a tribunal is an absolute right that is not subject to any exception, and
this applies to both civilian and military courts.[29]
It is therefore not possible to justify any limitation on this right.
2.60
The committee considers that the minister's power under the
Interim Act to terminate the appointment of the CJA, at any time, raises
concerns that the military courts may not be, in law, independent or impartial,
and may be perceived as not being independent and impartial. The committee
welcomes the minister's advice that she expects to inform Parliament of the
government's policy in relation to the future of the superior service tribunal
system during the term of this government. However, out of an abundance of
caution and in order to avoid incompatibility with the right to a fair hearing,
the committee recommends that pending any permanent changes to the current
system of military justice, the Interim Act be amended to ensure that the power
to terminate the appointment of the CJA is tied to the termination of the
interim arrangements as a whole.
Health Legislation Amendment (eHealth) Bill 2015
Portfolio: Health
Introduced: House of Representatives, 17 September 2015
Purpose
2.61
The Health Legislation Amendment (eHealth) Bill 2015 (the bill) amends
the law relating to the personally controlled electronic health record system
(PCEHR). The PCEHR (to be renamed the 'My Health Record') provides an
electronic summary of an individual's health records. Currently, under
legislation governing the PCEHR, an individual's sensitive health records are
only uploaded on to the register if the individual expressly consents (or
'opts-in').
2.62
The bill enables opt-out trials to be undertaken in defined locations,
whereby an individual's health records will be automatically uploaded onto the
My Health Record system unless that individual takes steps to request that
their information not be uploaded. The bill allows the opt-out process to apply
nationwide following a trial.
2.63
The bill amends the privacy framework by revising the way that
permissions to collect, use and disclose information are presented, and
included new permissions to reflect how entities engage with one another. The
bill also introduces new criminal and civil penalties for breaches of privacy;
provides that enforceable undertakings and injunctions are available; and
extends mandatory data breach notification requirements.
2.64
Measures raising human rights concerns or issues are set out below.
Background
2.65
The committee previously considered the bill in its Twenty-ninth
Report of the 44th Parliament (previous report) and requested further
information from the Minister for Health as to the compatibility of the bills
with the right to privacy, rights of the child, rights of persons with
disabilities and the right to a fair trial.[30]
2.66
The bill passed both Houses of Parliament on 12 November 2015 and
achieved Royal Assent on 26 November 2015.
Automatic inclusion of health records on the My Health Record system:
'opt-out' process
2.67
As set out above, the bill removes the requirement for the express
consent of an individual before their personal health records are uploaded onto
the PCEHR. Rather, an individual will need to expressly advise that they do not
wish to participate (to 'opt-out').
2.68
The committee noted in its previous report that the bill seeks to
promote the right to health. The committee considered that the bill, in
enabling the uploading of everyone's personal health records onto a government
database without their consent, engages and limits the right to privacy.
Right to privacy
2.69
Article 17 of the International Covenant on Civil and Political
Rights (ICCPR) prohibits arbitrary or unlawful interferences with an
individual's privacy, family, correspondence or home. The right to privacy
includes respect for informational privacy, including:
the right to respect for private and confidential information,
particularly the storing, use and sharing of such information; and
the right to control the dissemination of information about one's
private life.
2.70
However, this right may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, they must seek to achieve a legitimate objective and be reasonable,
necessary and proportionate to achieving that objective.
Compatibility of the measure with
the right to privacy
2.71
The statement of compatibility acknowledges that the bill limits the
right to privacy, however, it concludes that the limitation on this right is
reasonable, necessary and proportionate. It explains the objective of the My
Health Record system as to address the 'fragmentation of information across
the Australian health system and provide healthcare providers the information
they need to inform effective treatment decisions.[31]
2.72
The statement of compatibility also explains that the opt-out model is
intended to drive the use of My Health Records by healthcare providers as part
of normal healthcare in Australia.[32]
2.73
The committee noted previously that the overall objective of the My
Health Record system, in seeking to provide healthcare providers with the
necessary information to inform effective treatment decisions, is likely to be
considered a legitimate objective for the purposes of international human
rights law. However, it is questionable whether the objective behind the bill,
in amending the system to an opt-out model, would be considered a legitimate
objective for the purposes of international human rights law.
2.74
Increasing the number of people using the My Health Record system, in an
attempt to drive increased use by healthcare providers, may be regarded as a
desirable or convenient outcome but may not be addressing an area of public or
social concern that is pressing and substantial enough to warrant limiting the
right.
2.75
In relation to the proportionality of the measure, the statement of
compatibility sets out a number of safeguards in place for the use and
disclosure of healthcare information held on the database, including that
individuals with a My Health Record can control who can access their
information and what information can be accessed.[33]
2.76
However, the statement of compatibility gives little information about
the proportionality of the proposed opt-out process. It explains that the
opt-out process will be initially trialled in specific locations, meaning 'My
Health Records will be created for people living in specified locations unless
they say they do not want one'.[34]
2.77
However, the bill itself does not set out any safeguards to ensure that
healthcare recipients would be given reasonable notice or a reasonable amount
of time to decide whether to opt-out.
2.78
In addition, once an individual's personal details are included on the
My Health Record there is no ability for the person to erase their record from
the register – all they can do is ensure that the personal health information
stored on the database will not be authorised for disclosure.[35]
2.79
The EM states that there will be 'various channels' available for people
to opt-out, including online or as a tick-box on an application form to
register newborns or immigrants with Medicare. However, these are not set out
in the legislation.
2.80
The EM also states that for those without online access, with
communication disabilities, or without the required identity documents, 'other
channels will be available, such as phone and in person'.[36]
No information is given as to how this would work in practice.
2.81
The committee's interpretation of international human rights law is
that, where a measure limits a human right, discretionary or administrative
safeguards alone are likely to be insufficient for the purpose of a permissible
limitation.[37]
2.82
In considering whether the limitation on the right to privacy is
proportionate to the stated objective it is also necessary to consider whether
there are other less restrictive ways to achieve the same aim. In order to
achieve the objective of having more people register for the My Health Record
system it is not clear, on the basis of the information provided, why the
current opt-in model has not succeeded.
2.83
The bill also provides that once the opt-out trial has taken place the
Minister for Health can, by making rules, apply the opt-out model to all
healthcare recipients in Australia. In making this decision the bill provides
that the minister 'may' take into account the evidence obtained in applying the
opt-out model and any other matter relevant to the decision.[38]
There is no requirement that the minister consider the privacy implications of
this decision.
2.84
The committee therefore sought the advice of the Minister for Health as
to whether there is reasoning or evidence that establishes that the stated
objective addresses a pressing or substantial concern or whether the proposed
changes are otherwise aimed at achieving a legitimate objective; whether there
is a rational connection between the limitation and that objective; and whether
the limitation is a reasonable and proportionate measure for the achievement of
that objective, in particular whether the opt-out model is the least rights
restrictive approach and whether there are sufficient safeguards in the
legislation.
Minister's response
Opt-out arrangements and their effect on healthcare
recipients, including children and people with disabilities
A key theme of the Human Rights Report in relation to the
eHealth Bill is whether the proposed opt-out arrangements are:
- necessary to achieve a legitimate objective; and
- proportionate, necessary and reasonable to achieving
that objective.
I am of the view that the opt-out arrangements in the Bill
are a proportionate, necessary and reasonable way of achieving the policy
objective of improved health outcomes for all Australians, including children
and persons with disabilities. My reasons are set out below.
The Personally Controlled Electronic Health Records Act
2012 (to be renamed the My Health Records Act) has, and will continue to
have, the objective of improving health outcomes by establishing
and operating a national system for accessing individual's health information
to[39]:
- help
overcome the fragmentation of health information;
- improve
the availability and quality of health information;
- reduce
the occurrence of adverse medical events and the duplication of treatment; and
- improve
the coordination and quality of healthcare provided to individuals by different
healthcare providers.
Having a My Health Record is likely to improve health
outcomes, making getting the right treatment faster, safer, easier and more
cost-effective:
-
faster - because doctors and nurses and other healthcare
providers will not have to spend time searching for past treatment information;
-
safer - because authorised healthcare providers can view an
individual's important healthcare information, including any allergies and vaccinations
and the treatment the individual has received;
-
easier - because individuals will not have to remember the
results of tests they have had, or all the medications they have been
prescribed; and
-
more cost effective - because healthcare providers won't have to order
duplicate tests - e.g. when an individual visits a different GP whilst on
holidays. The time necessary to provide treatment may also be reduced as an
individual's health information will be available in one place. As a result,
the cost of treatment may be reduced, freeing up funds for improving health
outcomes in other areas.
Health information is currently spread across a vast number
of different locations and systems. In many current healthcare situations,
quick access to key health information about an individual is not always
possible. Limited access to health information at the point of care can result
in:
-
a greater risk to patient safety (e.g.
as a result of an adverse drug event due to a complete medications history not
being available);
-
increased costs of care and time
wasted in collecting or finding information (e.g. when a general practitioner
has to call the local hospital to get information because the discharge summary
is not available);
-
unnecessary or duplicated
investigations (e.g. when a person attends a new provider and their previous
test results are not available);
-
additional pressure on the health
workforce (e.g. needing to make diagnosis and treatment decisions with
incomplete information); and
-
reduced participation by
individuals in their own healthcare management.
Currently about 1 in 10 individuals have a My Health Record.
Since the vast majority of individuals don't have a My Health Record,
healthcare providers generally lack any incentive to adopt and contribute to
the system, thereby limiting the usefulness of the system. This means there are
currently too few individuals and healthcare providers using the system for
health outcomes to be significantly improved for the benefit of all Australians.
The Review of the Personally Controlled Electronic Health
Record[40]
(PCEHR Review) recommended moving to opt-out participation arrangements
for individuals as the most effective way of achieving participation of both
healthcare providers and individuals in the system and through this delivering
the objective of improving health outcomes. Opt-out arrangements are supported
by a wide range of peak bodies representing healthcare recipients, healthcare
providers and other stakeholders[41].
Of the 137 responses to the Electronic Health Records and Healthcare
Identifiers: Legislation Discussion Paper issued in May 2015, around half
of them commented on opt-out arrangements. Of those, about 85 per cent gave
full or conditional support to national implementation of opt-out, while about
98 per cent supported opt-out trials. Supporters of opt-out were equally
individuals (and organisations representing them) and healthcare providers.
Annual Commonwealth healthcare costs are forecast to increase
by $27 billion to $86 billion by 2025, and will increase to over $250 billion
by 2050[42].
Improved health outcomes and productivity improvements such
as those that can be delivered by eHealth are needed to help counter the
expected increases in the healthcare costs. Leveraging eHealth is one of the
few strategies available to drive microeconomic reform to reduce Commonwealth
health outlays and, at the same time, achieve the objective of improved health
outcomes. Without implementation of the changes in the eHealth Bill, in particular
implementation of opt-out, the quality of healthcare available to all
Australians may reduce in the future as costs become prohibitive.
Without a move to opt-out participation arrangements, the
required critical mass of registered individuals may not occur, or may be
significantly delayed. As a result, the anticipated objective of improving
health outcomes and reducing the pressure on Commonwealth health funding may
not occur or may be significantly delayed. Under the current opt in
registration arrangements, a net cumulative benefit of $11.5 billion is
expected over 15 years to 2025. It is anticipated that the move to a national
opt-out system would deliver these benefits in a shorter period.
National opt-out eHealth record systems have been implemented
in a number of countries that are also subject to Human Rights Conventions
including Denmark, Finland, Israel, England, Scotland and Wales. This supports
the view that opt-out participation arrangements for electronic health record
systems are not inherently an unjustified limitation on individuals' right to
privacy.
While the PCEHR Review recommended moving to national opt-out
arrangements, the Government has decided to trial opt-out arrangements first to
ensure there is community acceptance and support of opt-out arrangements, that
is, the community considers opt-out arrangements as proportionate and
reasonable to achieve the objective of improving health outcomes.
Individuals in the opt-out trials will be made aware of how
their personal information will be handled, and how to opt-out or adjust
privacy control settings, so they can make an informed decision. Comprehensive
information and communication activities are being planned for the opt‑out
trials to ensure all affected individuals, including parents, guardians and
carers, are aware they are in an opt-out trial and what they need to do to
participate, adjust privacy controls associated with their record, or to
opt-out if they choose. This will include letters to affected individuals,
targeted communication to carers and advocacy groups, extensive online
information, and education and training for healthcare providers in opt-out
trials.
The eHealth Bill ensures that strong and significant privacy
protections will continue to exist under the current opt-in arrangements and
will apply under the proposed new opt-out arrangements (whether as part of a
trial or under national implementation).
These protections include the ability to do the following for
all people registered with the My Health Record system, including children and
persons with disabilities:
-
set access controls restricting
access to their My Health Record entirely or restricting access to certain
information in their My Health Record;
-
request that their healthcare
provider not upload certain information or documents to their My Health Record,
in which case the healthcare provider will be required not to upload that
information or those documents;
-
request that their Medicare data
not be included in their My Health Record, in which case the Chief Executive
Medicare will be required to not make the data available to the System
Operator;
-
monitor activity in relation to
their My Health Record using the audit log or via electronic messages alerting
them that someone has accessed their My Health Record;
-
effectively remove documents from
their My Health Record;
-
make a complaint if they consider
there has been a breach of privacy; and
-
cancel their registration (that
is, cancel their My Health Record).
The Personally Controlled Electronic Health Records Act
2012 (PCEHR Act) and the system currently provide special arrangements to
support children and vulnerable people to participate in the system by allowing
authorised representatives to act on their behalf and protect the rights of
children and people with a disability. Authorised representatives generally
have parental responsibility for a child, or some other formal authority to act
on behalf of the individual. Nominated representatives can also be appointed by
an individual (or by their authorised representative) to help the individual
manage their electronic health record. The concept of nominated representatives
allows for a less formal appointment of another person to help an individual
manage their electronic health record. Nominated representatives could be, for
example, a family member, neighbour or friend who will generally not have any
formal authority to act on behalf of the individual, but whom the individual
appoints to assist them in managing their record.
Representatives are currently required to act in the best
interests of the person they are representing, and have regard to any
directions given by that person. In light of international changes in the
treatment of individuals who require supported decision-making, recognising
that one person cannot necessarily determine what is in the best interests of
another person, the eHealth Bill provides that people providing decision-making
support will instead need to give effect to the will and preference of the
person to whom they provide decision-making support. Ensuring that
representatives can continue to act on behalf of individuals (including
children and persons with a disability) to help them to manage their record as
part of opt-out is a privacy positive under the eHealth Bill. Authorised representatives
will be able, for example, to opt-out the individual for whom they have
responsibility from having an electronic health record.
Finally in relation to privacy, a move to opt-out is likely
to improve privacy for individuals, including children and persons with a
disability, in a number of ways. As noted in the Commonwealth's Concept of
Operations: Relating to the introduction of a personally controlled electronic
health record system (2011):
According to the Australian Medical Association (AMA), over
95% of GPs have computerised practice management systems. The majority of GPs
with a computer at work used it for printing prescriptions recording
consultation notes, printing test requests and Referral letters and receiving
results for pathology tests electronically. Roughly one third of GPs keep 100%
of patient information in an electronic format and the remainder of general
practices use a combination of paper and electronic records. (pages 126-7)
Implementing opt-out participation arrangements is likely to
increase the number of individuals with a My Health Record, and it is
anticipated that this will result in the majority of healthcare provider
organisations viewing records for their patients in the system and contributing
clinical content to those records as part of the process of providing
healthcare. Increased participation by healthcare providers, planned
improvements in system functionality and ease of use, together with planned
incentives to use the system, will lead to much greater use of the system in
providing healthcare to individuals.
Increased use of the system is a privacy positive as it will
reduce the use of paper records, which pose significant privacy risks. For
example, where a patient is receiving treatment in a hospital's emergency
department for a chronic illness, the hospital may request from the patient's
regular doctor information about the patient's clinical history which is likely
to be faxed to the hospital. The fax might remain unattended on the fax machine
for an extended period of time before being placed into the patient's file, or
the information may be sent to the wrong fax number. Either of these things
could lead to an interference with the patient's privacy should a third party
read the unattended fax or incorrectly receive the fax. In contrast, under the
My Health Record system, the patient's Shared Health Summary would be securely
available only to those people authorised to see it. There are other similar
scenarios where an increase in the level of use of the My Health Record system
is likely to lead to a reduction in privacy breaches associated with paper
based records.
In summary, the combination of opt-out trials, extensive
information and strong personal controls mean that moving to opt-out
participation arrangements for individuals is proportionate, necessary and
reasonable for achieving the objective of improving health outcomes.
Furthermore, increased registration with, and use of, the PCEHR system is
likely to increase individuals' privacy, especially compared to existing paper
based records that are still used to some degree by around two-thirds of
healthcare providers.[43]
Committee response
2.85
The committee thanks the Minister for Health for her response. In
particular, the committee thanks the minister for her detailed description as
to the overall objective behind the My Health Record system. The committee
previously accepted that this objective, of improving health outcomes, is
likely to be a legitimate objective for the purposes of international human rights
law. The question raised by the committee was what is the reasoning or evidence
that establishes that the objective behind the opt-out model is a legitimate
objective; in that it seeks to address a pressing or substantial concern. In
relation to this, the committee notes the minister's response that under the
current rates of participation for My Health Records, healthcare providers
generally lack any incentive to adopt and contribute to the system, thereby
limiting the usefulness of the system. The minister also notes that currently
roughly two-thirds of healthcare providers use paper based records and
increased registration with, and use of, the My Health Record system would
encourage the use of healthcare providers to use electronic records for their
patients in the My Health Record system. The minister also states that
increased use of the My Health Record system will deliver cost benefits to the
healthcare system, which will occur more quickly under an opt-out model than
the current opt-in model.
2.86
Reducing costs to the healthcare system is likely to be a legitimate
objective for the purposes of international human rights law. However, the
committee notes that the minister's response does not provide any evidence to
demonstrate that increasing numbers of persons registered on the My Health
Record system would in fact reduce healthcare costs.
2.87
However, even assuming that the opt-out model would result in increased
use of the My Health Record system by healthcare professionals, and thus reduce
healthcare costs, the committee remains concerned that the means to achieve
this increased usage may not be proportionate to the objective sought to be
achieved. In particular, no information is provided by the minister as to why
the current opt-in model has not succeeded, and whether there are other methods
available to ensure more people voluntarily decide to include their health
records on the My Health Record system. This is relevant to the question of
whether there are other less rights restrictive ways to achieve the same aim.
2.88
The minister's response states that people in the initial trial
locations will be notified by letter that their personal health information
will be automatically uploaded on the national register. However, no detail is
provided as to whether this will provide sufficient detail to people to allow
them to be fully aware of their rights to opt-out of the system. The committee
reiterates that the bill itself does not set out any safeguards to ensure that
healthcare recipients are given reasonable notice or a reasonable amount of
time to decide whether to opt-out.
2.89
The committee also notes the minister's statement that the move to
automatically upload everyone's personal health records onto the national
database is 'likely to improve privacy' for individuals, as it will decrease
reliance on paper records. However, it is not apparent that including all
personal health data on a centralised national database would better protect
privacy – information on government databases also run the risk of being
inappropriately accessed, and including more personal information that can be
accessed by more people is not likely to improve the right to privacy for
individuals.
2.90
The committee considers that the automatic inclusion of
the health record of all Australians on the My Health Record register engages
and limits the right to privacy in article 17 of the International Covenant on
Civil and Political Rights.
2.91
Some committee members consider that the minister's response has
demonstrated that the bill seeks to improve health outcomes and promotes the
right to health and so consider the measures are justifiable.
2.92
Other committee members consider that the minister's response has
not adequately addressed the committee's concerns in relation to this right.
For the reasons set out above, those committee members consider that the
legislation is likely to be incompatible with the right to privacy and
recommend, in order to better protect the right to privacy, the legislation be
amended:
-
to set out the detail of how and when a health care recipient
will be notified that their records will uploaded onto the My Health Records
system;
-
to require that healthcare recipients be given a reasonable
amount of time to decide whether to opt-out of the My Health Records
system;
-
to provide that healthcare recipients are able erase their
record from the register at any time;
-
to require that if the minister applies the opt-out model to
all healthcare recipients in Australia, the minister must consider the privacy
implications of this decision and be satisfied that healthcare recipients in
the trials were given an appropriate and informed opportunity to opt-out.
Automatic inclusion of children's health records on the My Health Record
system
2.93
Currently under the Personally Controlled Electronic Health Records
Act 2012 (the PCEHR Act) a person under the age of 18 years is
automatically assigned an 'authorised representative' who has the power to
manage the child's health records.[44]
The authorised representative can be any person who has parental responsibility
for the child. A parent is considered to be the child's authorised
representative until the child turns 18 years of age or until the child takes
control of their record. A child who wishes to take control of their health
record needs to satisfy the System Operator that they want to manage his or her
own PCEHR and are capable of making decisions for themselves.[45]
2.94
The committee previously considered that automatically uploading the
private health records of all children in Australia, unless their parent
chooses to opt‑out of the register, engages and both promotes and limits
the rights of the child.
Rights of the child
2.95
Children have special rights under human rights law taking into account
their particular vulnerabilities. Children's rights are protected under a
number of treaties, particularly the Convention on the Rights of the Child
(CRC). All children under the age of 18 years are guaranteed these rights. The
rights of children include:
-
the right to develop to the fullest;
-
the right to protection from harmful influences, abuse and
exploitation;
-
family rights; and
-
the right to access health care, education and services that meet
their needs.
2.96
State parties to the CRC are required to ensure to children the
enjoyment of fundamental human rights and freedoms and are required to provide
for special protection for children in their laws and practices. In
interpreting all rights that apply to children, the following core principles
apply:
-
rights are to be applied without discrimination;
-
the best interests of the child are to be a primary
consideration;
-
there must be a focus on the child's right to life, survival and
development, including their physical, mental, spiritual, moral, psychological
and social development; and
-
there must be respect for the child's right to express his or her
views in all matters affecting them.
Compatibility of the measure with
the rights of the child
2.97
The statement of compatibility recognises that the rights of the child
are engaged by the bill but states that these rights continue to be protected.[46]
2.98
The committee previously noted that an attempt to drive increased use by
healthcare providers may be regarded as a desirable or convenient outcome but
may not address an area of public or social concern that is pressing and substantial
enough to warrant limiting the rights of the child. In addition, the committee
considered that the opt-out model may not be regarded as a proportionate means
of achieving that objective.
2.99
The committee previously noted the bill's limitations on the child's
right to privacy and more broadly on the rights of the child. The committee
previously noted that there are particular problems with the way in which the
current opt-out arrangements are provided for in the bill, and that there is no
additional information as to how a child, who wishes to take control of their
own record, is able to do so.
2.100
The committee previously noted that the bill does impose an obligation
on an authorised representative to give effect to the will and preferences of
the child, unless to do so would pose a serious risk to the child's personal
and social wellbeing.[47]
While this is a welcome measure, there are no consequences in the legislation
if the parent does not give effect to the child's will and preferences. In
addition, even if a child does manage to become responsible for their own
health records, it appears that the child's parent will be notified when that
occurs.[48]
2.101
The committee therefore sought the advice of the Minister for Health as
to whether there is reasoning or evidence that establishes that the stated
objective addresses a pressing or substantial concern or whether the proposed
changes are otherwise aimed at achieving a legitimate objective; whether there
is a rational connection between the limitation and that objective; and whether
the limitation is a reasonable and proportionate measure for the achievement of
that objective, in particular whether the opt-out model is the least rights
restrictive approach and whether there are sufficient safeguards in the legislation
to protect the rights of the child.
Minister's response
2.102
See the minister's response set out above in relation to the right to
privacy.[49]
Committee response
2.103
The committee thanks the Minister for Health for her response.
The minister's response did not separately address the issue of the
compatibility of the automatic inclusion of children's health records on the My
Health Record system with the rights of the child. Rather, the minister's
response broadly states that the system of authorised representatives protects
the rights of children. The minister states that authorised representatives,
who generally have parental responsibility for a child, can help a child manage
their e-health record as part of the opt-out process, which the minister states
is a 'privacy positive' under the bill.
2.104
The committee's previous analysis noted that under the opt-out model a
child must rely on their parents taking active steps to ensure their health
record is not automatically included on the My Health Record (noting once a record
is included the information will permanently remain on the system). A child's
parent is automatically the authorised representative of a person aged under 18
and any child who wants to take control of their health record needs to satisfy
the System Operator that they are capable of making decisions for themselves.
The committee raised concerns that there was no provision in the bill as to how
a child, who wishes to take control of their own record, is able to do so. No
information is given as to what a child needs to do in order to satisfy the
Systems Operator that their parent should not be considered to be their
authorised representative. No information is given as to the timeframe in which
the Systems Operator should make the decision as to whether the child is
capable of managing their own affairs and whether this would occur within
sufficient time to allow the child to exercise their opt-out rights.
2.105
The committee considers that the automatic inclusion of
all children's health records on the My Health Record register engages and
limits a number of rights under the Convention on the Rights of the Child.
2.106
Some committee members consider that the minister's response has
demonstrated that the bill seeks to improve health outcomes for children and so
consider the measures are justifiable.
2.107
Other committee members recommend, in order to avoid an
unjustifiable limitation on the rights of the child, that the detail as to how
a child is to take control of their own health record be set out in legislation
and the legislation be amended to ensure children's health records are not
subject to automatic inclusion on the My Health Record.
Automatic inclusion of the health records of persons with disabilities on
the My Health Record system
2.108
Currently under the PCEHR Act a healthcare recipient can apply to the
System Operator to register for the PCEHR, thereby opting-in to have their
health care records included on the register. A person with disabilities can do
so on an equal basis with other healthcare recipients. However, where the
Systems Operator of the PCEHR is satisfied that a person aged over 18 years is
not capable of making decisions for him or herself, another person will be
considered to be the authorised representative of that person, and only that
person will be able to manage the person's health records.[50]
2.109
The committee previously considered that automatically uploading the
private health records of all persons with disabilities in Australia, unless
they or an authorised representative choose to opt-out of the register, engages
and limits the rights of persons with disabilities.
Rights of persons with disabilities
2.110
The Convention on the Rights of Persons with Disabilities (CRPD) sets
out the specific rights owed to persons with disabilities. It describes the specific
elements that state parties are required to take into account to ensure the
right to equality before the law for people with disabilities, on an equal
basis with others, and to participate fully in society.
2.111
Article 4 of the CRPD states that in developing and implementing
legislation and policies that concern issues relating to persons with
disabilities, states must closely consult with and actively involve persons
with disabilities, through their representative organisations.
2.112
Article 5 of the CRPD guarantees equality for all persons under and
before the law and the right to equal protection of the law. It expressly
prohibits all discrimination on the basis of disability.
2.113
Article 12 of the CRPD requires state parties to refrain from denying
persons with disabilities their legal capacity, and to provide them with access
to the support necessary to enable them to exercise their legal capacity.
2.114
Article 22 requires state parties to protect the privacy of the
personal, health and rehabilitation information of persons with disabilities on
an equal basis with others.
Compatibility of the measure with
the rights of persons with disabilities
2.115
The statement of compatibility for the bill recognises that the rights
of persons with disabilities are engaged by the bill, but states that 'people
with a disability are provided equal opportunity to participate in the My
Health Record system and make decisions about access to their personal
information'.[51]
2.116
The committee previously noted that an attempt to drive increased use by
healthcare providers, may be regarded as a desirable or convenient outcome but
may not address an area of public or social concern that is pressing and
substantial enough to warrant limiting the rights of persons with disabilities.
In addition, the committee considered that the opt-out model may not be
regarded as a proportionate means of achieving that objective.
2.117
In particular, the committee previously noted that the current law
provides that whenever the Systems Operator is satisfied that a healthcare
recipient 'is not capable of making decisions for himself or herself' the
Systems Operator will deem whomever they are satisfied is an appropriate person
to be the healthcare recipient's authorised representative. Once that
representative is stated to be acting for a healthcare recipient, the
healthcare recipient is not entitled to have any role in managing their health
records.[52]
2.118
However, article 12 of the CRPD affirms that all persons with
disabilities have full legal capacity. While support should be given where
necessary to assist a person with disabilities to exercise their legal
capacity, it cannot operate to deny the person legal capacity by substituting
another person to make decisions on their behalf. In August 2014 the Australian
Law Reform Commission made 12 recommendations specifically for Supported
Decision-Making in Commonwealth Laws, to ensure that the presumption of legal
capacity is recognised and that measures are in place to provide
decision-making support in accordance with the National Decision-Making
principles.[53]
2.119
The current PCEHR Act, by denying a person the right to manage any of
their health records as soon as the Systems Operator makes an assessment that
the person lacks the capacity to make decisions for him or herself, removes the
person's right to legal capacity.
2.120
The amendments in the bill, in requiring an authorised representative to
make reasonable efforts to ascertain the healthcare recipient's will and
preferences in relation to their My Health Record,[54]
are important in respecting the rights of persons with disabilities. However,
the design of the current legislation is such that the authorised
representative would always be exercising substitute decision-making, rather
than supported decision-making.[55]
2.121
In addition, while the bill imposes an obligation on an authorised
representative to give effect to the will and preferences of the healthcare
recipient, there are no consequences in the legislation if the authorised
representative does not give effect to the person's will and preferences. The
statement of compatibility states that a failure of the representative to meet
these duties 'may result in their appointment being suspended or cancelled, or
access to the individual's My Health Record being blocked under the My Health Records
Rules'.[56]
However, it is not clear how this would work in practice.
2.122
The use of substitute decision-making through the authorised
representative process in the bill is of particular concern from an
international human rights law perspective.[57]
2.123
In addition, there is no information as to how persons with disabilities
will be notified appropriately about their right to opt-out of the scheme.
2.124
The committee therefore sought the advice of the Minister for Health as
to whether there is reasoning or evidence that establishes that the stated
objective addresses a pressing or substantial concern or whether the proposed
changes are otherwise aimed at achieving a legitimate objective; whether there
is a rational connection between the limitation and that objective; and whether
the limitation is a reasonable and proportionate measure for the achievement of
that objective, in particular whether the opt-out model is the least rights
restrictive approach and whether there are sufficient safeguards in the
legislation to protect the rights of persons with disabilities.
Minister's response
2.125
See the minister's response set out above in relation to the right to
privacy.[58]
Committee response
2.126
The committee thanks the Minister for Health for her response.
The minister's response did not separately address the issue of the
compatibility of the automatic inclusion of the health records of persons with
disabilities on the My Health Record system with the rights of persons with
disabilities. Rather, the minister's response broadly states that the system of
authorised and nominated representatives protects the rights of persons with
disabilities. The minister states that nominated representatives can be
appointed, and that these could be family members, neighbours or friends who
may not have any formal authority to act on behalf of the person but can be
appointed by the person to help them manage their record. The minister states
that such representatives can help a person with disabilities manage their
e-health record as part of the opt-out process, which the minister states is a
'privacy positive' under the bill.
2.127
The committee's previous analysis raised concerns about the process by
which an authorised or nominated representative manages the record of a person
with disabilities. Currently, where the Systems Operator is satisfied that a
person aged over 18 years is not capable of making decisions for him or
herself, the Systems Operator will deem whomever they are satisfied is an
appropriate person to be the healthcare recipient's authorised representative.
Once an authorised representative is stated by the Systems Operator to be
acting for a healthcare recipient, that authorised representative is authorised
to do anything the healthcare recipient can do and the healthcare recipient is
not entitled to have any role in managing their health records.[59]
2.128
However, the CRPD affirms that all persons with disabilities have full
legal capacity. While support should be given where necessary to assist a
person with disabilities to exercise their legal capacity, it cannot operate to
deny the person legal capacity by substituting another person to make decisions
on their behalf. The design of the current legislation is such that the
authorised representative would always be exercising substitute
decision-making, rather than supported decision-making.[60]
2.129
The committee also raised concerns that the bill provided no detail as
to how persons with disabilities will be notified appropriately about their
right to opt-out of the My Health Record scheme.
2.130
The committee considers that the automatic inclusion of
the health records of all persons with a disability on the My Health Record
register engages and limits a number of rights in the Convention on the Rights
of Persons with Disabilities.
2.131
Some committee members consider that the minister's response has
demonstrated that the bill seeks to improve health outcomes for persons with
disabilities and so consider the measures are justifiable.
2.132
Other committee members recommend, in order to avoid an
unjustifiable limitation on the rights of persons with disabilities, that the
legislation be amended to ensure that persons with disabilities are accorded
full legal capacity in relation to the My Health Record system and the health
records of persons with disabilities are not subject to automatic inclusion on
the My Health Record. In particular, those members recommend that consideration
be given to the recommendations made by the Australian Law Reform Commission[61]
to ensure supported decision-making is encouraged and representative
decision-makers are appointed only as a last resort.
Civil penalty provisions
2.133
The bill introduces a number of new civil penalty provisions to apply
when a person improperly uses or discloses personal information from the My Health
Record system or fails to give up-to-date and complete information for the
register.
2.134
For example, proposed new section 26 makes it an offence to, unless
authorised, use or disclose identifying information from the My Health Records
system. The penalty for the criminal offence is two years imprisonment or 120
penalty units (or both). Proposed new subsection 26(6) also applies a civil
penalty to the same conduct, on the basis of recklessness, with an applicable
civil penalty of 600 penalty units.
2.135
The committee previously considered that this measure engages and may
limit the right to a fair trial as the civil penalty provisions may be
considered to be criminal in nature under international human rights law and
may not be consistent with criminal process guarantees.
Right to a fair trial and fair
hearing rights
2.136
The right to a fair trial and fair hearing is protected by article 14 of
the ICCPR. The right applies to both criminal and civil proceedings, to cases
before both courts and tribunals. The right is concerned with procedural
fairness, and encompasses notions of equality in proceedings, the right to a
public hearing and the requirement that hearings are conducted by an
independent and impartial body.
2.137
Specific guarantees of the right to a fair trial in the determination of
a criminal charge guaranteed by article 14(1) are set out in article 14(2) to
(7). These include the presumption of innocence (article 14(2)) and minimum
guarantees in criminal proceedings, such as the right not to incriminate
oneself (article 14(3)(g)) and a guarantee against retrospective criminal laws
(article 15(1)).
Compatibility of the measure with
the right to a fair trial and fair hearing rights
2.138
Under international human rights law civil penalty provisions may be
regarded as 'criminal' if they satisfy certain criteria. The term 'criminal'
has an 'autonomous' meaning in human rights law. In other words, a penalty or
other sanction may be 'criminal' for the purposes of the ICCPR even though it
is considered to be 'civil' under Australian domestic law. If so, such
provisions would engage the criminal process rights under articles 14 and 15 of
the ICCPR.
2.139
There is a range of international and comparative jurisprudence on
whether a 'civil' penalty is likely to be considered 'criminal' for the
purposes of human rights law. The committee's Guidance Note 2 sets out some of
the key human rights compatibility issues in relation to provisions that create
offences and civil penalties.[62]
2.140
The statement of compatibility states that the civil penalty provisions
in the bill should not be classified as criminal under human rights law.[63]
2.141
The committee previously considered that a penalty of up to 600 penalty
units is a substantial penalty that could result in an individual being fined
up to $108 000.[64]
This is in a context where the individual made subject to the penalty may be a
healthcare provider, such as a nurse, or an administrator working for a
healthcare provider. The maximum civil penalty is also substantially more than
the financial penalty available under the criminal offence provision, which is
restricted to a maximum of 120 penalty units (or $21 600).
2.142
When assessing the severity of a pecuniary penalty the committee
previously noted that it has regard to the amount of the penalty, the nature of
the industry or sector being regulated and the maximum amount of the civil
penalty that may be imposed relative to the penalty that may be imposed for a
corresponding criminal offence. Having regard to these matters the committee
considered that the civil penalty provisions imposing a maximum of 600 penalty
units may be considered to be 'criminal' for the purposes of international
human rights law.
2.143
The committee noted that the consequence of this is that the civil
penalty provisions in the bill must be shown to be consistent with the criminal
process guarantees set out in articles 14 and 15 of the ICCPR. However, civil
penalty provisions are dealt with under the civil law in Australia and a civil
penalty order can be imposed on the civil standard of proof – the balance of
probabilities.
2.144
In addition, the committee noted that proposed new
section 31C of the bill provides that each civil penalty provision under
the bill is enforceable under Part 4 of the Regulatory Powers (Standard
Provisions) Act 2014. This Act provides that criminal proceedings may be
commenced against a person for the same, or substantially the same, conduct,
even if a civil penalty order has already been made against the person.[65]
If the civil penalty provision is considered criminal in nature, this raises
concerns under article 14(7) of the ICCPR which provides that no one is to be
tried or punished again for an offence for which he or she has already been
finally convicted or acquitted (double jeopardy).
2.145
The committee also noted that the civil penalty and offence provisions
in the bill also allow for a reversal of the burden of proof, requiring the
defendant to bear an evidential burden in relation to the defences in the bill.
An offence provision which requires the defendant to carry an evidential or
legal burden of proof with regard to the existence of some fact will engage the
presumption of innocence because a defendant's failure to discharge the burden
of proof may permit their conviction despite reasonable doubt as to their
guilt. Neither the statement of compatibility nor the EM justifies the need for
the reversal of the burden of proof.
2.146
The statement of compatibility states that the objective of the penalty
regime is to protect the private sensitive information held on the My Health
Record system 'and the misuse of this information needs to have proportionate
penalties to the potential damage to healthcare recipients'.[66]
The committee considered that the protection of private sensitive information
is a legitimate objective for the purposes of international human rights law.
However, the objective behind including civil penalties of up to 600 penalty
units (substantially more than the penalty available under the criminal offence
provision) without the usual protections available to those charged with a
criminal offence, and the reversal of the burden of proof, has not been
explained in the statement of compatibility.
2.147
The statement of compatibility also does not explain how the civil
penalty provisions, which are likely to be considered 'criminal' for the
purposes of international human rights law, are proportionate to their
objective.
2.148
The committee therefore sought the advice of the Minister for Health as
to whether there is reasoning or evidence that establishes that the stated
objective addresses a pressing or substantial concern or whether the proposed
changes are otherwise aimed at achieving a legitimate objective; whether there
is a rational connection between the limitation and that objective; and whether
the limitation is a reasonable and proportionate measure for the achievement of
that objective.
Minister's response
The eHealth Bill introduces further protection of an
individual's health information contained in a My Health Record with the
proposed introduction of further enforcement and penalty options if someone
deliberately misuses the information or commits an act that may compromise the
security or integrity of the system.
At present, the PCEHR Act contains a civil penalty regime for
misuse of information, and the Healthcare Identifiers Act 2010 (HI Act)
contains a criminal regime. The eHealth Bill aligns the enforcement and
sanction regimes under the two Acts to provide a more graduated and consistent
framework for responding to inappropriate behaviour that is proportional to the
severity of a breach.
Civil and criminal penalties are proposed for both Acts (up
to a maximum of $108,000 for individuals and $540,000 for corporations for
deliberate misuse of health information). Enforceable undertakings and
injunctions will also be available.
The Committee has questioned whether the civil penalty
provisions proposed by the eHealth Bill are criminal for the purposes of
international human rights law and, if so, whether any limitation on the right
to a fair hearing is justified.
The maximum civil penalty that can be imposed under the
eHealth Bill is 600 penalty units. This penalty is justified because the My
Health Record system stores the sensitive health information of many
individuals. The amount of health information stored and the number of
individuals whose records are stored would increase significantly under
opt-out.
Penalty levels must provide an appropriate deterrent to
misuse of sensitive health information. In addition, penalties need to be
proportionate to the potential damage that might be suffered by individuals if
the health information in their My Health Record is misused.
The civil penalty levels imposed under the eHealth Bill can
be contrasted to the existing Privacy Act 1988:
-
Under the eHealth Bill the maximum
civil penalty is 600 penalty units for a misuse of sensitive health
information;
-
Under the Privacy Act there are
significantly higher civil penalties of up to 2,000 penalty units for serious
or repeated misuse of personal information. This is despite the fact that the
information in question might not be sensitive health information and may only
be less sensitive personal information.
Given that the civil penalties available under the Privacy
Act are considered appropriate, it is most unlikely that lower penalties under
the eHealth Bill would be considered criminal in nature or would limit the
right to a fair trial, especially where the penalty regime imposed by the
eHealth Bill is designed to protect significantly more sensitive health
information than is generally the case under the Privacy Act.
In response to the Committee comments on the differential
between the maximum civil penalty amount and the maximum criminal penalty
amount, the eHealth Bill provides for a higher level of civil penalty
(600 penalty units) compared to the maximum criminal penalty (120 penalty
units) as it is not necessary to have the same levels for each. Imposition of a
criminal conviction by a court has other implications that mean that higher
penalty levels are not necessary to achieve the desired deterrent. For example,
a criminal conviction may result in imprisonment (up to two years) or
restrictions on an individual's ability to travel.
The Committee also commented on the reversal of the burden of
proof in proposed new section 26 of the HI Act.
Proposed new subsections 26(3) and (4) provide exceptions to
the prohibition against misusing healthcare identifiers and identifying
information in subsection 26(1) of the HI Act. In doing so, subsections 26(3)
and (4) reverse the burden of proof by providing that the defendant bears an
evidential burden when asserting an exception applies. An evidential burden
placed on the defendant is not uncommon. Similar notations to those used in the
eHealth Bill exist in many other pieces of Commonwealth legislation (for
example, subsection 3.3 of the Criminal Code Act 1995 - where a person
has an evidential burden of proof if they wish to deny criminal responsibility
by relying on a provision of Part 2.3 of the Criminal Code).
In accordance with the Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers, the facts relating
to each defence in proposed new subsections 26(3) and (4) of the HI Act are
peculiarly within the knowledge of the defendant and could be extremely
difficult or expensive for the prosecution to disprove whereas proof of a
defence could be readily provided by the defendant.
A burden of proof that a law imposes on a defendant is an
evidential burden only (not a legal burden), and does not completely displace
the prosecutor's burden. Proposed subsections 26(3) and (4) simply require a
person to produce or point to evidence that suggests a reasonable possibility
that exceptions in those provisions apply to the person.[67]
Committee response
2.149
The committee thanks the Minister for Health for her response.
The committee notes the minister's advice as to why the civil penalty
provisions are necessary; namely that the My Health Record system stores the
sensitive health information of many individuals and there must be an appropriate
deterrent to the misuse of such information. The committee accepts that the
protection of private sensitive information is a legitimate objective for the
purposes of international human rights law. The committee also notes the
minister's advice that the criminal penalty provisions are substantially lower
than the civil penalty provisions as imposition of a criminal conviction has
other implications that mean a higher penalty is not necessary to achieve the
desired deterrent.
2.150
The minister explains in the response that the maximum civil penalty
available under the Privacy Act 1988 is significantly higher than that
under this bill, allowing for civil penalties of up to 2000 penalty units. The
minister further explains that given these penalties 'are considered
appropriate' it would be most unlikely that the penalties under the bill would
be considered criminal under international human rights law. The committee
notes it has not reviewed the civil penalty provisions under the Privacy Act
1988 as these were introduced prior to the committee's establishment.
2.151
The question as to whether a civil penalty might be considered to be
'criminal' for the purposes of international human rights law is contestable
under international law. The committee considers that it is difficult to say
with certainty whether the civil penalty provisions in the bill, allowing for
penalties of up to $108,000, would be considered criminal for the purposes of
international human rights law. However, the committee notes that this is a
substantial penalty, that is intended to deter particular behaviour, and is in
a context where it applies to individuals who may be healthcare providers, such
as a nurse, or administrators working for a healthcare provider, rather than in
a corporate or financial context. Yet, the committee notes that the penalty
does apply to people in a particular regulatory context.
2.152
The committee notes the minister's advice in relation to the
civil penalty provisions and has concluded its examination of these provisions.
2.153
In addition, the committee notes the minister's advice in
relation to the provision reversing the burden of proof, and considers that the
response demonstrates that the defences provided in the bill are likely to be
peculiarly within the defendant's knowledge. Accordingly, the committee
considers that this aspect of the bill is likely to be compatible with the
right to a fair trial (presumption of innocence).
Norfolk Island Legislation Amendment Bill 2015
Portfolio:
Infrastructure
Introduced: House of
Representatives, 26 March 2015
Purpose
2.154
The Norfolk Island Legislation Amendment Bill 2015, Tax and
Superannuation Laws Amendment (Norfolk Island Reforms) Bill 2015, A New Tax
System (Medicare Levy Surcharge—Fringe Benefits) Amendment Bill 2015, Health
and Other Services (Compensation) Care Charges Amendment (Norfolk Island) Bill
2015, Health Insurance (Approved Pathology Specimen Collection Centres) Tax
Amendment (Norfolk Island) Bill 2015, Health Insurance (Pathology) (Fees)
Amendment (Norfolk Island) Bill 2015, Private Health Insurance (Risk
Equalisation Levy) Amendment (Norfolk Island) Bill 2015 and Aged Care
(Accommodation Payment Security) Levy Amendment (Norfolk Island) Bill 2015 (the
bills) seek to:
-
amend the Norfolk Island Act 1979 in order to implement
reforms to certain governance and legal arrangements of Norfolk Island,
including the abolition of the Norfolk Island Legislative Assembly and
consequent establishment of the Norfolk Island Regional Council to act as the
elected local government body for the territory, and the introduction of a
mechanism which applies New South Wales state law to Norfolk Island as
commonwealth law; and
-
extend mainland social security (including payments such as the
Age Pension, Newstart Allowance, Disability Support Pension and Youth
Allowance), immigration (with the effect of ensuring that Norfolk Island is
treated consistently with Australia's other inhabited external territories) and
health arrangements (including the Medicare Benefits Schedule, the
Pharmaceutical Benefits Scheme and the Private Health Insurance Rebate) to
Norfolk Island.
2.155
Measures raising human rights concerns or issues are set out below.
Background
2.156
The committee previously raised concerns in its Seventh Report of the
44th Parliament[68]
in relation to the exclusion of certain New Zealand citizens from access to
benefits, such as the National Disability Insurance Scheme (NDIS), despite
being required to contribute to the NDIS levy. In its concluding comments, the
committee noted that 'under the International Covenant on Civil and Political
Rights (ICCPR) and the International Covenant on Economic Social and Cultural
Rights (ICESCR), non‑citizens are entitled to the enjoyment of the human
rights guaranteed by the covenants without discrimination.'[69]
2.157
The committee previously considered the bills in its Twenty-second
Report of the 44th Parliament (previous report) and requested further
information from the Assistant Minister for Infrastructure and Regional
Development as to the compatibility of the bills with the right to equality and
non-discrimination and the right to social security.[70]
2.158
The Norfolk Island Legislation Amendment Bill 2015 passed both Houses of
Parliament on 14 May 2015 and achieved Royal Assent on 26 May 2015.
Exclusion of some categories of Australian permanent residents from
eligibility for social security
2.159
Currently, on mainland Australia all permanent visa holders are entitled to social security under the Social Security Act 1991
(the Act). As a result of amendments made by the
bill, the Act was extended to Norfolk Island in order to provide
the same social security system on the island as is provided on mainland
Australia. However, the extension of social security payments to
residents of Norfolk Island does not apply to New Zealand citizens that hold an
Australian permanent visa.[71]
2.160
The committee previously noted that while the extension of social
security benefits will, in the main, promote access to healthcare and advance
the right to social security, it also engages and limits the right to equality
and non-discrimination and the right to social security.
Right to equality and
non-discrimination
2.161
The right to equality and non-discrimination is protected by articles 2,
16 and 26 of the International Covenant on Civil and Political Rights (ICCPR).
2.162
This is a fundamental human right that is essential to the protection
and respect of all human rights. It provides that everyone is entitled to enjoy
their rights without discrimination of any kind, and that all people are equal
before the law and entitled without discrimination to the equal and
non-discriminatory protection of the law.
2.163
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or religion),[72]
which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.[73]
The UN Human Rights Committee has explained indirect discrimination as 'a rule
or measure that is neutral on its face or without intent to discriminate',
which exclusively or disproportionately affects people with a particular
personal attribute.[74]
Compatibility of the measure with
the right to equality and non-discrimination
2.164
The committee previously noted that new subsection 7(2AA) would exclude
New Zealand citizens who reside on Norfolk island and hold an Australian
permanent visa from being considered an Australian resident under the Act, and thus result in these persons being ineligible for social
security benefits.
2.165
The committee noted that it would appear that this
could result in a New Zealand citizen living on mainland Australia and
receiving social security benefits, losing eligibility if they were to move to
Norfolk Island. The committee further noted that the proposed provision does
not merely put long-term Norfolk Island residents who are New Zealand
citizens in the same position as residents of Australia who are New Zealand
citizens as is set out in the Explanatory Memorandum (EM).[75]
2.166
Further, the extension of social security benefits to
Norfolk Island applies to Australian permanent residents who are citizens of
all countries except New Zealand. No rationale is provided in the EM or
statement of compatibility for this specific exclusion. Accordingly, the
measure appears to be directly discriminatory and therefore limits the right to
equality and non-discrimination.
2.167
Even if a provision directly or indirectly discriminates against
specific groups it may nevertheless be justifiable where it pursues a
legitimate objective, the measure is rationally connected to that objective and
the limitation on the right to equality and non-discrimination is a
proportionate means of achieving that objective.
2.168
The statement of compatibility does not address this engagement with the
right to equality and non-discrimination. The committee therefore sought the
advice of the Assistant Minister for Infrastructure and Regional Development as
to whether the proposed changes are aimed at achieving a legitimate objective;
whether there is a rational connection between the limitation and that
objective; and whether the limitation is a reasonable and proportionate measure
for the achievement of that objective.
Right to social security
2.169
The right to social security is protected by article 9 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR). This
right recognises the importance of adequate social benefits in reducing the
effects of poverty and plays an important role in realising many other
economic, social and cultural rights, particularly the right to an adequate
standard of living and the right to health.
2.170
Access to social security is required when a person has no other income
and has insufficient means to support themselves and their dependents.
Enjoyment of the right requires that sustainable social support schemes are:
-
available to people in need;
-
adequate to support an adequate standard of living and health
care; and
-
accessible (providing universal coverage without discrimination
and qualifying and withdrawal conditions that are lawful, reasonable,
proportionate and transparent; and
-
affordable (where contributions are required).
2.171
Under article 2(1) of the ICESCR, Australia has certain obligations in
relation to the right to social security. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps that
might affect the right;
-
the obligation to ensure the right is made available in a
non-discriminatory way; and
-
the obligation to take reasonable measures within its available
resources to progressively secure broader enjoyment of the right.
2.172
Specific situations which are recognised as engaging a person's right to
social security, include health care and sickness; old age; unemployment and
workplace injury; family and child support; paid maternity leave; and
disability support.
Compatibility of the measure with
the right to social security
2.173
While the statement of compatibility acknowledges that the bill engages
the right to social security, it does not address this particular provision or
its implications for the enjoyment of the right to social security by
Australian permanent residents living on Norfolk Island who are New Zealand
citizens.
2.174
The exemption of these persons from receiving social security benefits
limits the right to social security for this group.
2.175
As the statement of compatibility for the bill has not identified this
limitation, it does not provide a justification for the limitation for the
purposes of international human rights law.
2.176
The committee therefore sought the advice of the Assistant Minister for
Infrastructure and Regional Development as to whether the proposed changes are
aimed at achieving a legitimate objective; whether there is a rational
connection between the limitation and that objective; and whether the
limitation is a reasonable and proportionate measure for the achievement of
that objective.
Assistant Minister's response
The Bill was passed by both Houses of Parliament on 14 May
2015 and the Norfolk Island Legislation Amendment Act 2015 (the Act)
received the Royal Assent on 26 May 2015. The purpose of the Act is to extend
the mainland social security, immigration and health arrangements to Norfolk
Island from 1 July 2016.
I note the Parliamentary Joint Committee on Human Rights'
comments in relation to Australian permanent resident New Zealand citizens
living on Norfolk Island being ineligible for social security benefits.
The exclusion of this category of permanent residents from
social security benefits is not consistent with the Australian Government's
policy. The Department of Infrastructure and Regional Development is working
with the Department of Social Services to develop an amendment to the Act to
ensure New Zealand citizens living on Norfolk Island enjoy the same access to
social security benefits as New Zealand citizens living on the Australian
mainland.
I will bring forward to the Parliament during its Autumn 2016
Sittings a Bill that will, amongst other Norfolk Island reforms, amend the
social service arrangements.[76]
Committee response
2.177
The committee thanks the Assistant Minister for
Infrastructure and Regional
Development for his response. The committee welcomes the
government's commitment to move amendments to ensure that Australian permanent
resident New Zealand citizens living on Norfolk Island will be eligible
for social security benefits. The committee considers that this amendment will
address its concerns and, on this basis, has concluded that the bill is
compatible with the right to social security. The committee looks forward to
the introduction of these amendments and thanks the Assistant Minister for his
constructive engagement on this matter.
Social Security Legislation Amendment (Further Strengthening Job Seeker
Compliance) Bill 2015
Portfolio: Employment
Introduced: House of Representatives, 10 September 2015
Purpose
2.178
The Social Security Legislation Amendment (Further Strengthening Job
Seeker Compliance) Bill 2015 (the bill) seeks to amend the Social Security
(Administration) Act 1999 (SSA Act) to:
-
withhold a job seeker's social security payment where a job
seeker refuses to enter into an Employment Pathway Plan without a reasonable
excuse for doing so, and impose an additional penalty to be deducted from the
eventual payment;
-
withhold a job seeker's social security payment where a job
seeker acts in an inappropriate manner during an appointment such that the
purpose of the appointment is not achieved without a reasonable excuse for
doing so, and impose an additional penalty to be deducted from the eventual
payment;
-
amend the instalment period from which penalties are deducted in
relation to job seekers' failure to participate in a specified activity (e.g.
work for the dole) to effect a more immediate penalty;
-
withhold a job seeker's social security payment where job search
efforts have been inadequate (with possibility of receiving full back pay once
adequate job search efforts can be proven to have resumed); and
-
remove the ability of a job seeker who has failed to accept an
offer of suitable employment without a reasonable excuse to apply to have the
eight‑week penalty period waived in lieu of undertaking additional
activities.
2.179
Measures raising human rights concerns or issues are set out below.
Background
2.180
The committee previously considered the bill in its Twenty-ninth
Report of the 44th Parliament (previous report) and requested further
information from the Minister for Employment as to the compatibility of the
bill with the right to social security and right to an adequate standard of
living.[77]
Suspension of benefits for inappropriate behaviour
2.181
Item 18 of the bill would amend the SSA Act to provide that a penalty
may be deducted from a job seeker's social security payment where a job seeker
acts in an inappropriate manner, without a reasonable excuse, during an
appointment such that the purpose of the appointment is not achieved.
2.182
This measure may result in individuals losing social security payments
and accordingly the committee previously considered that it engages and limits
the right to social security and the right to an adequate standard of living.
Right to social security
2.183
The right to social security is protected by article 9 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR). This
right recognises the importance of adequate social benefits in reducing the
effects of poverty and plays an important role in realising many other
economic, social and cultural rights, particularly the right to an adequate
standard of living and the right to health.
2.184
Access to social security is required when a person has no other income
and has insufficient means to support themselves and their dependents.
Enjoyment of the right requires that sustainable social support schemes are:
-
available to people in need;
-
adequate to support an adequate standard of living and health
care;
-
accessible (providing universal coverage without discrimination
and qualifying and withdrawal conditions that are lawful, reasonable,
proportionate and transparent; and
-
affordable (where contributions are required).
2.185
Under article 2(1) of the ICESCR, Australia has certain obligations in
relation to the right to social security. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps that
might affect the right;
-
the obligation to ensure the right is made available in a
non-discriminatory way; and
-
the obligation to take reasonable measures within its available
resources to progressively secure broader enjoyment of the right.
Right to an adequate standard of
living
2.186
The right to an adequate standard is guaranteed by article 11(1) of the
ICESCR, and requires state parties to take steps to ensure the availability,
adequacy and accessibility of food, clothing, water and housing for all people
in Australia.
2.187
In respect of the right to an adequate standard of living, article 2(1)
of the ICESCR also imposes on Australia the obligations listed above in
relation to the right to social security.
Compatibility of the measure with
the right to social security and the right to an adequate standard of living
2.188
The statement of compatibility acknowledges that the measure engages
these rights. The statement of compatibility explains the legitimate objective
of the measure as 'discouraging job seekers from deliberately resisting
assistance provided to them to... find work'.[78]
2.189
The committee previously noted that a legitimate objective must address
a substantial and pressing concern and be based on empirical research or
reasoning. No evidence is provided as to the extent to which individuals on
social security are frustrating job search activities by inappropriate
behaviour during appointments.
2.190
To the extent that the measure does pursue a legitimate objective, the
measure is rationally connected to that objective as penalties for
inappropriate behaviour may encourage better behaviour during appointments.
2.191
In terms of proportionality, no protections are included in the bill to
ensure that a job seeker's behaviour can be assessed in a fair and reasonable
manner. Inappropriate behaviour is not defined in the bill and it is unclear
how and on what basis a person's behaviour during an interview is
inappropriate.
2.192
In the absence of statutory guidance, the bill may result in individuals
losing social security benefits in circumstances which are unfair or
unreasonable.
2.193
The committee therefore sought the advice of the Minister for Employment
as to whether there is reasoning or evidence that establishes that the stated
objective addresses a pressing or substantial concern or whether the proposed
changes are otherwise aimed at achieving a legitimate objective; whether there
is a rational connection between the limitation and that objective; and whether
the limitation is a reasonable and proportionate measure for the achievement of
that objective, in particular whether there are sufficient safeguards in the
legislation.
Minister's response
The Bill will introduce measures to ensure that job seekers
who behave inappropriately at appointments may be subject to the same penalties
as job seekers who fail to attend those appointments. This is not a unique proposal.
Rules allowing penalties to be applied to job seekers who commit misconduct at
activities and job interviews were introduced into the compliance framework in
2009. Administrative data indicates that misconduct at activities amounts to
around 1 per cent of all failures related to activities.
This measure aims to apply similar rules for appointments
that job seekers are required to undertake with their employment service
providers or other organisations. Qualitative analysis of feedback from providers
has indicated that inappropriate behaviour is a recurring issue and providers
have requested increased scope to manage this behaviour. As providers are not
currently required to report on the issue, precise data on the number of
instances is not available.
This measure is aimed at achieving the legitimate objective
of assisting job seekers into employment. Job seekers who prevent the purpose
of provider appointments from being achieved by behaving inappropriately impede
this objective by purposefully refusing support from providers intended to
assist them to move off welfare payments and increase their chances of becoming
productive participants in the workforce. Misconduct at appointments is also
problematic due to the wasted tax payer resources involved in preparing for and
conducting provider appointments that cannot be carried out.
The Bill clearly states that the inappropriate behaviour must
be of a nature that prevents the purpose of the appointment being achieved.
Further details of what constitutes inappropriate behaviour are not defined in
primary legislation, but will be included in a legislative instrument that will
be subject to parliamentary scrutiny. This will provide statutory guidance to
decision makers and ensure that decisions related to inappropriate behaviour
are not left entirely to the discretion of the provider.
As is currently the case with all compliance penalties,
employment service providers will have full discretion not to report a job
seeker's non-compliance to the Department of Human Services, if the provider
believes it will not assist in ensuring the job seeker's future engagement.
Where a provider does recommend a payment suspension, a job
seeker will be able to have this lifted and receive full-back pay by attending
a further appointment and behaving appropriately. Alternatively, if the job
seeker feels the suspension was unjustified, he or she may request that the
Department of Human Services review the decision.
If the provider recommends a financial penalty, the penalty
will not be applied until a review has been conducted by the Department of
Human Services. The review process includes contacting the job seeker and
discussing the circumstances of the failure with them. Under subsection 42SC(2)
of the Social Security Administration Act 1991 (the Act), no financial
penalty may be applied where the job seeker had a reasonable excuse for the
inappropriate behaviour. Details of what constitutes a reasonable excuse are
included in the Social Security (Reasonable Excuse - Participation Payment
Obligations) (DEEWR) Determination 2009 (No. 1).
The application of the reasonable excuse provisions in this
measure will ensure that vulnerable job seekers are not penalised for actions
that are beyond their control or are a direct consequence of their
vulnerability. For example, if a job seeker's behaviour was due to a
psychological or psychiatric condition, or because he or she was unable to
understand a provider's instructions, no penalty will apply. This process is
consistent with all financial penalties that job seekers may incur under the
current compliance framework.
Job seekers who do incur financial penalties can limit the
extent of the penalty by prompt reengagement with their providers. The ability
of job seekers to minimise the impact of suspensions or financial penalties
simply by attending a further appointment and behaving appropriately ensures
that penalties are applied proportionately to job seekers who decide to meet
their requirements.
Statutory protections will ensure this measure is applied
fairly. If a further appointment cannot be undertaken within two business days
of the job seeker attempting to reengage, the payment suspension and financial
penalty period is ended immediately under subsection 42SA(2AA) of the Act Job seekers
who have a reasonable excuse for not being able attend the further appointment
will also have their payment suspension and financial penalty period ended
immediately.[79]
Committee response
2.194
The committee thanks the Minister for Employment for her response. The
committee considers that assisting job seekers find employment is a legitimate
objective for the purpose of international human rights law. The committee also
agrees that the measure is rationally connected to that objective as
encouraging job seekers to engage fully with the services provided to them may
assist them in finding employment.
2.195
In terms of proportionality, the committee notes the minister's response
that the bill states that the inappropriate behaviour must be of a nature that
prevents the purpose of the appointment being achieved. Accordingly, it is not
just any inappropriate behaviour that will lead to a job seeker losing benefits
but inappropriate behaviour that is so serious as to frustrate the purpose of
an appointment. Notwithstanding this, there are also likely to be many cases
where a person's behaviour is not extreme and a high degree of judgement is
required to determine what is 'inappropriate behaviour' and whether it has
caused an appointment to be frustrated.
2.196
Under this bill, such judgement is to be exercised with no statutory
guidance. Moreover, many of these appointments will be with private sector
service providers, where the person who will make the judgement as to whether
inappropriate behaviour has caused an appointment to fail, is not bound by the
Australian Public Service code of conduct.
2.197
The committee notes the minister's advice that further details of what
constitutes inappropriate behaviour will be included in a legislative
instrument that will be subject to parliamentary scrutiny. While it is
important that this detail will be subject to parliamentary scrutiny, where a
bill limits a right the safeguards should be in the primary legislation and not
left to regulations or policy guidelines.
2.198
The committee notes that the 'reasonable excuse' provisions will apply
to this measure which provides some assurance that vulnerable job seekers will
not be penalised for actions that are beyond their control or are a direct
consequence of their vulnerability. However, the 'reasonable excuse' provisions
do not cover all circumstances that may apply to vulnerable individuals,
particularly those who may have an undiagnosed mental illness.
2.199
The committee's assessment of the suspension of benefits for
inappropriate behaviour against articles 19 and 11 of the International
Covenant on Economic, Social and Cultural Rights (right to social
security and right to an adequate standard of living) raises questions as to
whether the limitation is justifiable.
2.200
In order to better ensure the bill's compatibility with human
rights, some committee members recommend that the bill be amended as follows:
-
the term 'inappropriate behaviour' be defined in the bill
using clearly objective standards; and
-
prior to a penalty being confirmed by the Department of Human
Services (DHS), DHS must be satisfied that the job seeker is not suffering from
a mental health concern that may have contributed to the 'inappropriate
behaviour'.
2.201
Other committee members, noting the importance of simpler and
clearer legislation, considered that it was appropriate that 'inappropriate
behaviour' be defined in a legislative instrument using clearly objective
standards.
Removal of waivers for refusing or failing to accept a suitable job
2.202
Items 12 and 13 of the bill would make amendments to the SSA Act so that
when a job seeker refuses or fails to accept an offer of suitable employment
and has no reasonable excuse for the failure, a job seeker's payment would not
be payable for a period of eight weeks. The current ability of the department to
waive that eight week non-payment penalty would be removed by the bill.
2.203
This measure may result in individuals losing social security payments
and accordingly the committee previously considered that it engages and limits
the right to social security and the right to an adequate standard of living.
Right to social
security
2.204
The right to social security is outlined above at paragraphs [2.183] to
[2.185].
Right to an
adequate standard of living
2.205
The right to an adequate standard of living is outlined above at
paragraphs [2.186] to [2.187].
Compatibility of the measure with
the right to social security and the right to an adequate standard of living
2.206
The statement of compatibility explains the legitimate objective for the
measure as 'reducing the reliance on participation payments by job seekers who
have successfully shown they are capable of obtaining suitable work'.[80]
2.207
The Explanatory Memorandum (EM) explains that in 2013-14, 78% of
penalties for refusing a suitable job were waived.[81]
2.208
The EM argues that these waiver provisions act as an incentive for non‑compliance.
However, the committee previously noted that no evidence is provided that the
high waiver rates are a result of the legislation requiring the waiver to be
granted rather than there being a genuine reason for the department granting
the waiver in each case. On its face, the measure pursues an objective that
appears to be desirable and convenient.
2.209
To the extent that the measure does pursue a legitimate objective, the
measure is rationally connected to that objective as the inability for
penalties to be waived may encourage some job seekers to take jobs assessed as
suitable where they may currently seek a waiver on the basis of hardship.
2.210
In terms of proportionality, no evidence is provided to show that the
very high waiver rate is due to the waivers being applied by the department
inappropriately.
2.211
Given these high waiver rates, it is possible that measures could be
introduced to reduce the waiver rate by tightening the circumstances in which a
waiver may be granted. In removing the ability of the department to provide a
waiver in any circumstance, the statement of compatibility has not demonstrated
that a less rights restrictive approach of changing the grounds on which a
waiver may be granted is not feasible or possible.
2.212
The committee therefore sought the advice of the Minister for Employment
as to whether there is reasoning or evidence that establishes that the stated
objective addresses a pressing or substantial concern or whether the proposed
changes are otherwise aimed at achieving a legitimate objective; whether there
is a rational connection between the limitation and that objective; and whether
the limitation is a reasonable and proportionate measure for the achievement of
that objective.
Minister's response
As noted in the explanatory memorandum, a range of
protections exist to ensure job seekers who refuse offers of work for
legitimate reasons are not subject to penalties, including through the
definitions of 'suitable work' and 'reasonable excuse' set out in subordinate
legislation. These safeguards take effect before waivers are considered; that
is, only job seekers who have refused work without good reason may be granted
waivers.
Waivers may currently be granted if job seekers agree to
undertake an additional compliance activity or if the job seeker may face
financial hardship. Waivers that are granted to job seekers who agree to
undertake an additional compliance activity are not based on an assessment of
the job seeker's circumstances, as job seekers who had a genuine reason for
refusing an offer of work will not be subject to a penalty in the first
instance.
In 2014-15, 96 per cent of waivers for penalties incurred for
refusing an offer of suitable work were granted because the job seekers agreed
to undertake an additional compliance activity. This strongly suggests that the
high rate of waivers is a result of the legislation requiring the waiver to be
granted, rather than the waivers being granted for a legitimate reason related
to the circumstances of the job seeker.
In practice, the additional compliance activities job seekers
agree to undertake are substantially similar to a job seeker's existing
requirements. In many cases, the additional activities do not substantially
alter a job seeker's requirements as job seekers can satisfy the requirements
by undertaking a few extra hours of activity. Consequently, by securing a
waiver for a serious failure through a compliance activity, job seekers are
able to refuse employment without any major changes to their activity
requirements to reflect the gravity of their serious failure. This has
encouraged abuse of the system.
In 2008-09, the year before waiver provisions were introduced
to the legislation, there were 644 serious failures for refusing or failing to
accept suitable work. In 2014-15, there were 1,412 such failures (although 73
per cent were granted waivers). This increase of 119 per cent in job seekers
refusing work without good reason cannot be attributed to any comparable change
in the size of the activity-tested job seeker population or increase in the
number of jobs being offered-it appears to be a direct result of the leniency
of the waiver provisions. The waivers have essentially enabled some job seekers
to reject suitable work with impunity as the resulting serious failure they
will incur can be waived. Removing the waivers, therefore, can reasonably be
expected to reduce the instances of job seekers refusing suitable work,
allowing more job seekers to gain employment and reduce their reliance on
income support.[82]
Committee response
2.213
The committee thanks the Minister for Employment for her response. The
committee notes that the response does not explicitly explain the legitimate
objective of the measure nor explain how it is rationally connected to that
objective. However, from the information provided, the committee understands
that the objective of the measure is to reduce the instances of job seekers
refusing suitable work, thus supporting more people to make the transition from
welfare to work. The committee considers that the measure, in increasing the
likelihood that a person who refused a job will receive a financial penalty,
may encourage greater acceptance of jobs offered and is thus likely to be a
legitimate objective and is rationally connected to that objective.
2.214
In terms of proportionality, the responses focuses on the fact that the
high waiver rate appears to be a function of current arrangements which permit
a job seeker to avoid a penalty for not accepting a suitable job by undertaking
additional compliance activities. If the bill simply removed the ability of job
seekers to undertake compliance activities in order to avoid a financial
penalty the bill may be proportionate. However, the bill removes the ability to
waive a penalty in any circumstance where a person refuses suitable work
without a reasonable excuse. There may be individuals who, for a range of
genuine reasons, refuse suitable work yet fail to meet the reasonable excuse
test. Accordingly, while the bill will tackle unwilling workers it may also
apply financial penalties to individuals who are not unwilling but, for a range
of reasons, are unable to accept a particular job.
2.215
The committee's assessment of the removal of waivers for refusing
or failing to accept a suitable job against article 19 and article 11 of
the International Covenant on Economic, Social and Cultural Rights (right
to social security and right to an adequate standard of living) raises
questions as to whether the limitation is justifiable.
2.216
In order to better ensure the bill's compatibility with human
rights, the committee recommends that the bill be amended to provide a waiver
where, in the opinion of the Department of Human Services' officer, there are
exceptional circumstances justifying the waiver in accordance with a clearly
structured framework that allows for consistent application of the waiver to
circumstances that are genuinely exceptional.
The Hon Philip Ruddock MP
Chair
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