Chapter 1
New and continuing matters
1.1
This report provides the Parliamentary Joint Committee on Human Rights'
view on the compatibility with human rights of bills introduced into the Parliament
from 7 to 10 September, legislative instruments received from 14 to 27 August
2015, and legislation previously deferred by the committee.
1.2
The report also includes the committee's consideration of responses
arising from previous reports.
1.3 The committee generally takes an exceptions based approach to its
examination of legislation. The committee therefore comments on legislation
where it considers the legislation raises human rights concerns, having regard
to the information provided by the legislation proponent in the explanatory
memorandum (EM) and statement of compatibility.
1.4
In such cases, the committee usually seeks further information from the
proponent of the legislation. In other cases, the committee may draw matters to
the attention of the relevant legislation proponent on an advice-only basis.
Such matters do not generally require a formal response from the legislation
proponent.
1.5
This chapter includes the committee's examination of new legislation,
and continuing matters in relation to which the committee has received a
response to matters raised in previous reports.
Bills not raising human rights concerns
1.6
The committee has examined the following bill and concluded that it does
not raise human rights concerns. The committee considers that it does not
require additional comment as it either does not engage human rights or engages
rights (but does not promote or limit rights):
-
Maritime Legislation Amendment Bill 2015.
Instruments not raising human rights concerns
1.7
The committee has examined the legislative instruments received in the
relevant period, as listed in the Journals of the Senate.[1]
Instruments raising human rights concerns are identified in this chapter.
1.8
The committee has concluded that the remaining instruments do not raise
human rights concerns, either because they do not engage human rights, they
contain only justifiable (or marginal) limitations on human rights or because
they promote human rights and do not require additional comment.
Deferred bills and instruments
1.9
The committee has deferred its consideration of the following bills:
-
Australian Immunisation Register (Consequential and Transitional
Provisions) Bill 2015;
-
Australian Immunisation Register Bill 2015;
-
Social Security Legislation Amendment (Further Strengthening Job
Seeker Compliance) Bill 2015; and
-
Social Services Legislation Amendment (More Generous Means
Testing for Youth Payments) Bill 2015.
1.10
The committee continues to defer its consideration of the Marriage
Legislation Amendment Bill 2015 (deferred 8 September 2015) and the Migration
Amendment (Protection and Other Measures) Regulation 2015 [F2015L00542]
(deferred 23 June 2015).
1.11
As previously noted, the committee continues to defer one bill and a
number of instruments in connection with the committee's current review of the Stronger
Futures in the Northern Territory Act 2012 and related legislation.[2]
Response required
1.12
The committee seeks a response or further information from the relevant
minister or legislation proponent with respect to the following bills and
instruments.
Family Assistance (Public Interest Certificate Guidelines) Determination
2015 [F2015L01269]
Paid Parental Leave Amendment Rules 2015 [F2015L01266]
Social Security (Public Interest Certificate Guidelines) (DSS)
Determination 2015 [F2015L01267]
Student Assistance (Public Interest Certificate Guidelines) Determination
2015 [F2015L01268]
Portfolio:
Social Services
Authorising
legislation: A New Tax System (Family Assistance) (Administration)
Act 1999; Paid Parental Leave Act 2010; Social Security
(Administration) Act 1999; and Student Assistance Act 1973
Last day to
disallow: 15 October 2015 (House and Senate)
Purpose
1.13
The Family Assistance (Public Interest Certificate Guidelines)
Determination 2015; the Paid Parental Leave Amendment Rules 2015; the
Social Security (Public Interest Certificate Guidelines) (DSS) Determination
2015; and the Student Assistance (Public Interest Certificate Guidelines)
Determination 2015 (the determinations) either amend or remake existing
instruments relating to the issuing of public interest certificates.
1.14
Under legislation relating to payments for family assistance, social
security, student assistance and paid parental leave it is an offence to make
an unauthorised use of personal information obtained under the legislation; and
officers are not required to disclose information or documents to any person,
except for the purposes of the relevant law they are administering.[3]
1.15
However, the Secretary (or delegate) of the Department of Social
Services or the Department of Human Services may certify that it is necessary
in the public interest to disclose such information in a particular case or
class of case. In doing so, the secretary must act in accordance with
guidelines made under the relevant Act.[4]
These determinations set out the guidelines for the exercise of this power.
1.16
Measures raising human rights concerns or issues are set out below.
Disclosure of personal information
1.17
As set out above, the determinations prescribe particular circumstances
when a public interest certificate may be issued. They provide that the
secretary may issue the certificate if:
-
the information cannot reasonably be obtained from a source other
than a department;
-
the person to whom the information will be disclosed has a
sufficient interest in the information (being a genuine and legitimate
interest); and
-
the secretary is satisfied that the disclosure is for at least
one of a number of specified purposes.[5]
1.18
The purposes for which personal protected information can be disclosed
include:
-
for the enforcement of laws;
-
if necessary for the making of (or supporting or enforcing) a
proceeds of crime order;
-
to brief a minister;
-
to assist with locating a missing person or in relation to a
deceased person;
-
for research, statistical analysis and policy development;
-
to facilitate the progress or resolution of matters of relevance
within departmental portfolio responsibilities;
-
to a department or other authority of a state or territory, or an
agent or contracted service provider of a department or authority, if the
information is about a public housing tenant (or applicant), or is necessary to
facilitate income management measures; and
-
to ensure a child is enrolled in or attending school, or to meet
or monitor infrastructures and resource needs in a school.[6]
1.19
The issuing of public interest certificates to allow for the disclosure
of personal protected information engages and limits the right to privacy.
Right to privacy
1.20
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;
-
the right to control the dissemination of information about one's
private life.
1.21
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
1.22
The statements of compatibility for the determinations acknowledge that
the instruments engage and limit the right to privacy.
1.23
However, the statements of compatibility provide assessments of only
three of the numerous purposes for which personal protected information can be
disclosed.
1.24
This is despite the fact that three of the four Determinations[7]
are remaking the guidelines, including all the specified purposes for which a
public interest certificate can be made. The committee's usual expectation is
that each limitation on human rights is assessed on the basis of a reasoned and
evidence-based explanation of how the measure supports a legitimate objective
for the purposes of international human rights law. To be capable of justifying
a proposed limitation of human rights, a legitimate objective must address a
pressing or substantial concern and not simply seek an outcome regarded as
desirable or convenient. Additionally, a limitation must be rationally
connected to, and a proportionate way to achieve, its legitimate objective in
order to be justifiable in international human rights law.
1.25
The committee notes that the stated objective of the three purposes that
are assessed—to allow information to be disclosed for proceeds of crimes
orders; research, analysis and policy development; the administration of the
National Law; and public housing administration—appear to be legitimate
objectives for the purposes of international human rights law. The disclosure
of such information also appears to be rationally connected to the stated
objectives.
1.26
However, it is unclear whether the disclosure of personal protected
information in the circumstances set out in the determinations is proportionate
to the stated objectives.
1.27
First, while the statements of compatibility state that the Privacy
Act 1988 (the Privacy Act) will continue to apply to the management of
disclosed information, it is not clear that all recipients of the information
would be subject to the provisions of that Act. In particular, the
determinations allow personal protected information to be shared with the
'agent or contracted service provider' of a state or territory department or
authority and with universities. However, no information is given as to who
such agents or contractors might be and whether they would be bound by the
provisions of the Privacy Act (which does not apply to most state or territory
government agencies, to small business operators or to most universities).
1.28
Second, the manner in which the information can be disclosed may not, in
all instances, be the least rights restrictive approach. In particular, it is
unclear why it is necessary to enable the disclosure of protected personal
information in a form that identifies individuals when the information is being
disclosed for purposes such as research, statistical analysis, policy
development, briefing the minister and meeting or monitoring infrastructure and
resource needs. In such cases it would appear that the information could be
disclosed in a de-identified form, thus avoiding any privacy concerns.
1.29
Third, the determinations provide that in appropriate circumstances the
disclosure of information may be accompanied by additional measures to protect
the information—for example, deeds of confidentiality or memoranda of
understanding may be required for recipients of the information. It is not
clear why the requirement to further protect the information in such cases is
not set out in the determinations themselves.
1.30
The committee's assessment against article 17 of the
International Covenant on Civil and Political Rights (right to privacy) of the power
to disclose personal information raises questions as to whether the limitation
on these rights is proportionate to the objective sought to be achieved.
1.31
As set out above, the disclosure of personal information engages
and limits the right to privacy. The statement of compatibility does not
sufficiently justify that limitation for the purposes of international human
rights law. The committee therefore seeks the advice of the Minister for Social
Services as to:
-
whether each of the proposed purposes for which information
can be shared are aimed at achieving a legitimate objective;
-
whether there is a rational connection between the limitation
and each objective; and
-
whether the limitation is a reasonable and proportionate measure
for the achievement of each objective, particularly whether there are adequate
safeguards in place to protect personal information and that the sharing of
protected personal information takes the least rights restrictive approach.
Disclosure of personal information relating to homeless children
1.32
Three of the determinations provide for the disclosure of information
relating to a child who is homeless.[8]
These provide that a public interest certificate can be provided in a number of
circumstances if the information cannot reasonably be obtained otherwise, the
secretary is satisfied that the disclosure will not result in harm to the young
person and the disclosure is for purposes set out in the guidelines, or will be
made to a welfare authority where the child is in their care and is under
15 years old.
1.33
The circumstances when the information can be disclosed include:
-
if the information is about the child's family member and the
secretary is satisfied that the child, or the child's family member, has been
subjected to abuse or violence;
-
if the disclosure is necessary to verify qualifications for
payments;
-
if the disclosure will facilitate reconciliation between the
child and his or her parents; and
-
if necessary to inform the parents of the child as to whether the
child has been in contact with the respective department.
1.34
These measures engage and limit the child's right to privacy and may
limit the obligation to consider the best interests of the child in all
decision-making.
Rights of the child (including
obligation to consider the best interests of the child)
1.35
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 privacy, which includes the same
contents as the general right to privacy set out above at paragraphs [1.20] to
[1.21].[9]
1.36
In addition, under the CRC, state parties are required to ensure that,
in all actions concerning children, the best interests of the child is a
primary consideration.[10]
1.37
This principle requires active measures to protect children's rights and
promote their survival, growth and wellbeing, as well as measures to support
and assist parents and others who have day-to-day responsibility for ensuring
recognition of children's rights. It requires legislative, administrative and
judicial bodies and institutions to systematically consider how children's
rights and interests are or will be affected directly or indirectly by their
decisions and actions.
Compatibility of the measure with
the rights of the child
1.38
The statements of compatibility for each of the three relevant
determinations do not consider whether the measures engage and limit the rights
of the child.[11]
1.39
The committee's usual expectation where a measure may limit a human
right is that the accompanying statement of compatibility provide a reasoned
and evidence-based explanation of how the measure supports a legitimate
objective for the purposes of international human rights law. This conforms
with the committee's Guidance Note 1,[12]
and the Attorney-General's Department's guidance on the preparation of
statements of compatibility, which states that the 'existence of a legitimate
objective must be identified clearly with supporting reasons and, generally,
empirical data to demonstrate that [it is] important'.[13] To be capable of
justifying a proposed limitation of human rights, a legitimate objective must
address a pressing or substantial concern and not simply seek an outcome
regarded as desirable or convenient. Additionally, a limitation must be
rationally connected to, and a proportionate way to achieve, its legitimate
objective in order to be justifiable in international human rights law.
1.40
In respect of this obligation the committee notes that the
determinations provide that the secretary can issue public interest
certificates only if satisfied that the disclosure 'will not result in harm to
the homeless young person'.[14]
1.41
However, while considerations of harm to the child are relevant to the
question of what is in the best interests of the child, this question is a
broader one under international law. In particular, the child's best interests
must be assessed from the child's perspective rather than that of their parents
or the state, and include the enjoyment of the rights set out in the CRC,
including the right to privacy.
1.42
On this basis, a less rights restrictive approach to the sharing of this
personal information in such cases would be to require the decision-maker to be
satisfied that the disclosure would be in the best interests of the child,
rather than that the disclosure will not result in harm to the child.
1.43
The committee's assessment of the power to disclose information
relating to homeless children against the Convention on the Rights of the Child
(particularly the right to privacy and the obligation to consider the best interests
of the child) raises questions as to whether the limitation on these rights is
justifiable.
1.44
As set out above, the power to disclose information relating to
homeless children engages and limits the rights of the child. The statement of
compatibility does not justify that limitation for the purposes of
international human rights law. The committee therefore seeks the advice of the
Minister for Social Services 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.
Federal Financial Relations (National Specific Purpose Payments) Determination 2013-14 No. 1 [F2015L00877]
Federal Financial Relations (National Specific Purpose Payments) Determination 2013-14 No. 2 [F2015L00878]
Federal Financial Relations (National Partnership payments) Determination No. 87 (December 2014)
[F2015L01093]
Federal Financial Relations (National Partnership payments) Determination No. 88 (January 2015) [F2015L01094]
Federal Financial Relations (National Partnership payments) Determination No. 89 (February 2015) [F2015L01095]
Federal Financial Relations (National Partnership payments) Determination No. 90 (March
2015) [F2015L01096]
Federal Financial Relations (National Partnership payments) Determination No. 91 (April 2015) [F2015L01097]
Federal Financial Relations (National Partnership payments) Determination No. 92 (May 2015) [F2015L01098]
Federal Financial Relations (National Partnership payments) Determination No. 93 (June
2015) [F2015L01099]
Portfolio: Treasury
Authorising legislation: Federal Financial Relations Act 2009
Last day to disallow: 16 September 2015 (Senate) (but only in relation
to Federal Financial
Relations (National
Specific Purpose Payments) Determination 2013-14
No. 1 [F2015L00877] and Federal
Financial Relations (National
Specific Purpose
Payments) Determination 2013-14
No. 2 [F2015L00878]
Purpose
1.1
The Federal Financial Relations (National
Specific Purpose Payments) Determination 2013-14
No. 1 (Determination 1) specifies the amounts payable for the schools,
skills and workforce development, and housing National
Specific Purpose Payments (National SPPs) for 2013-14. The Federal Financial
Relations (National Specific Purpose Payments) Determination 2013-14 No. 2 (Determination 2) specifies
the amount payable for the Disability National SPP for 2013-14.
1.2
The remaining instruments[15] specify the amounts to be paid to the states and territories to support the delivery of specified
outputs or projects, facilitate reforms by the states or reward
the states for nationally significant reforms. Schedule
1 to these instruments sets out the amounts of payments
by reference to certain
outcomes, including healthcare, education, community services and affordable housing.
1.3
Together these instruments are referred to as 'the Determinations'.
1.4
Measures raising
human rights concerns
or issues are set out below.
Payments to the states and territories for the provision
of health, education, employment, housing and disability services
1.5
Under the Intergovernmental Agreement on Federal Financial
Relations (the IGA), the Commonwealth provides National
SPPs to the states and territories as a financial contribution to support
state and territory service delivery in the areas of schools,
skills and workforce development, disability and housing.
1.6
The Federal Financial Relations
Act 2009 provides for the minister, by legislative instrument, to determine the total amounts payable in respect
of each National SPP, the manner in which these total amounts
are indexed, and the manner in which these amounts are divided
between the states
and territories. The Determinations have been made in accordance with these provisions.
1.7
Payments under the Determinations assist in the delivery
of services by the states and territories in the areas of health, education, employment, disability and housing.
Accordingly, the Determinations engage a number of human rights. Whether
those rights are promoted
or limited will be determined by the amounts of the payments
in absolute terms and in terms of whether the amounts represent an increase or decrease
on previous years.
1.8
The committee has previously noted, in its assessment of appropriations bills, that proposed
government expenditure to give effect to particular policies may engage and limit and/or promote a range of
human rights. This includes rights under
the International Covenant
on Civil and Political
Rights (ICCPR) and the International Covenant on Economic, Social and Cultural
Rights (ICESCR).[16]
Multiple rights
1.9
The Determinations engage and may promote
or limit the following
human rights:
-
right to equality
and non-discrimination (particularly in relation
to persons with disabilities);[17]
-
rights of children;[18]
-
right to work;[19]
-
right to social security;[20]
-
right to an adequate standard
of living;[21]
-
right to health;[22] and
-
right to education.[23]
Compatibility of the Determinations with multiple rights
1.10
The statement of compatibility for the Federal Financial
Relations (National
Specific Purpose Payments)
Determination 2013-14 No. 1 and the Federal Financial Relations (National
Specific Purpose Payments)
Determination 2013-14
No. 2 each simply states that:
This Legislative Instrument does not engage any of the applicable rights or freedoms.[24]
1.11
However, in making
payments to the states and territories to fund a range of services,
the Determinations have the capacity
to both promote rights and, in some cases,
limit rights.
1.12
The remaining instruments are not accompanied by statements of compatibility as the instruments are not specifically required
to have such statements under section
9 of the Human
Rights (Parliamentary Scrutiny) Act 2011. However,
the committee's role under section 7 of that Act is to examine
all instruments for compatibility with human rights (including instruments that are not required
to have statements of compatibility).
1.13
Australia has obligations to progressively realise economic,
social and cultural rights using the maximum of resources available and this is reliant on government allocation of budget expenditure.
The states and territories have limited revenue
capacity and rely heavily on payments
and cash transfers from the Commonwealth. The National
SPPs provide funds to the states and territories which enable the provision
of a range of government services which facilitate and support
the implementation of multiple
human rights. The obligations under international human rights
law are on Australia
as a nation state - it
is therefore incumbent
on the Commonwealth to ensure that sufficient funding is provided to the states and territories to ensure that Australia's international human rights
obligations are met.
1.14
Where the Commonwealth seeks to reduce the amount of funding pursuant to National SPPs, such reductions in expenditure may amount
to retrogression or limitations on rights.
1.15
Accordingly the National SPPs facilitate the taking of actions which may both effect
the progressive realisation of, and the failure to fulfil,
Australia's obligations under the treaties
listed in the Human Rights
(Parliamentary Scrutiny)
Act 2011.
1.16
Accordingly, the committee
considers that there is a sufficiently close connection between the National SPPs provided
for under the Determinations and the implementation of new legislation, policy or programs,
or the discontinuation or reduction
in support of a particular policy or program
that may engage human rights. As a result,
the statement of compatibility for these Determinations should provide an assessment of any limitations of human rights that may arise
from that engagement. This would include information that provides a detailed comparison for the amounts
provided in the Determinations with the amounts provided in previous years.
1.17
The committee's assessment of
the Determinations against the International Covenant on Civil and Political
Rights and the International Covenant on Economic,
Social and Cultural Rights raises
questions as to whether the Determinations promote or limit multiple human rights.
1.18
As the
Determinations set out the final amount payable by the Commonwealth to the states
and territories under National SPPs for education, employment, disability
and housing they may engage and potentially limit or promote a range of human rights that fall under the committee's mandate. As set out above, the statement of compatibility for the bills provides
no assessment of their human rights compatibility. The committee therefore seeks the advice of the Treasurer as to whether
the Determinations are compatible with Australia's human
rights obligations, and particularly:
-
whether the
Determinations are compatible with Australia's obligations of progressive realisation with respect to economic, social and cultural
rights;
-
whether a
failure to adopt these Determinations would have a regressive impact on other economic, social and cultural
rights;
-
whether any reduction in the allocation of funding
(if applicable) is compatible with Australia's obligations not to unjustifiably take backward steps (a retrogressive measure) in the realisation of economic,
social and cultural
rights; and
-
whether the allocations are compatible with the rights
of vulnerable groups (such as children;
women; Aboriginal and Torres Strait Islander Peoples;
persons with disabilities;
and
ethnic minorities).
Further response required
1.45
The committee seeks a further response from the relevant minister or
legislation proponent with respect to the following bills and instruments.
Instruments made under the Autonomous Sanctions Act 2011 and
the Charter of the United Nations Act 1945
Portfolio:
Foreign Affairs
Authorising
legislation: Autonomous Sanctions Act 2011 and the Charter of the United
Nations Act 1945
Purpose
1.46
A number of instruments have been made
under the Autonomous Sanctions Act 2011 and the Charter of the United
Nations Act 1945 to which this report relates, namely:
-
Autonomous Sanctions (Designated Persons and Entities and
Declared Persons – Zimbabwe) Amendment List 2013 [F2013L00477];
-
Charter of the United Nations Legislation Amendment Regulation
2013 (No. 1) [F2013L00791];
-
Charter of the United Nations (UN Sanction Enforcement Law)
Amendment Declaration 2013 (No. 1) [F2013L00789];
-
Charter of the United Nations (Sanctions – the Taliban)
Regulation 2013 [F2013L00787];
-
Autonomous Sanctions (Designated Persons and Entities and
Declared Persons – Zimbabwe) Amendment List 2013 (No. 2) [F2013L00857];
-
Autonomous Sanctions (Designated Persons and Entities and
Declared Persons – Syria) Amendment List 2013 [F2013L00884];
-
Autonomous Sanctions (Designated Persons and Entities and
Declared Persons – Iran) Amendment List 2013 (No. 1) [F2013L01312];
-
Autonomous Sanctions Amendment Regulation 2013 (No. 1)
[F2013L01447];
-
Charter of the United Nations (Sanctions – Democratic People's
Republic of Korea) Amendment Regulation 2013 (No. 1) [F2013L01384];
-
Autonomous Sanctions (Designated Persons and Entities and
Declared Persons – Democratic People's Republic of Korea) Amendment List
2013 [F2013L02049];
-
Autonomous Sanctions (Designated and Declared Persons – Former
Federal Republic of Yugoslavia) Amendment List 2014 (No.2) [F2014L00970];
-
Autonomous Sanctions (Designated Persons and Entities and
Declared Persons – Ukraine) Amendment List 2014 [F2014L01184];
-
Autonomous Sanctions (Designated Persons and Entities and
Declared Persons – Zimbabwe 2014 [F2014L00411];
-
Autonomous Sanctions (Designated and Declared Persons Former
Federal Republic of Yugoslavia) Amendment List 2014 [F2014L00694];
-
Autonomous Sanctions Amendment (Ukraine) Regulation
2014 [F2014L00720];
-
Autonomous Sanctions (Designated Persons and Entities and
Declared Persons – Ukraine) List 2014 [F2014L00745];
-
Charter of the United Nations Legislation Amendment (Central
African Republic and Yemen) Regulation 2014 [F2014L00539];
-
Charter of the United Nations (Sanctions – Yemen) Regulation
2014 [F2014L00551];
-
Charter of the United Nations (UN Sanction Enforcement Law)
Amendment Declaration 2014 (No. 2) [F2014L00568];
-
Charter of the United Nations Legislation Amendment (Sanctions
2014 Measures No. 1) Regulations 2014 [F2014L01131];
-
Charter of the United Nations Legislation Amendment (Sanctions
2014 – Measures No. 2) Regulation 2014 [F2014L01701];
-
Autonomous Sanctions (Designated Persons and Entities and Declared
Persons – Democratic People's Republic of Korea) Amendment List 2015 [F2015L00061];
-
Autonomous Sanctions (Designated and Declared Persons – Former
Federal Republic of Yugoslavia) Amendment List 2015 (No. 1) [F2015L00224];
-
Autonomous Sanctions (Designated Persons and Entities –
Democratic People's Republic of Korea) Amendment List 2015 (No. 2)
[F2015L00216];
-
Autonomous Sanctions (Designated Persons and Entities and
Declared Persons – Iran) Amendment List 2015 (No. 1) [F2015L00227];
-
Autonomous Sanctions (Designated Persons and Entities and
Declared Persons – Libya) Amendment List 2015 (No. 1) [F2015L00215];
-
Autonomous Sanctions (Designated Persons and Entities and
Declared Persons – Syria) Amendment List 2015 (No. 1) [F2015L00217];
-
Autonomous Sanctions (Designated Persons and Entities and
Declared Persons – Zimbabwe) Amendment List 2015 (No. 1) [F2015L00218];
-
Charter of the United Nations (Sanctions – South Sudan)
Regulation 2015 [F2015L01299]; and
-
Charter of the United Nations (Dealing with Assets) Amendment
(South Sudan) Regulation 2015 [F2015L01300].
1.47
These instruments either:
-
designate and declare individuals subject to the autonomous
sanctions regime under the Autonomous
Sanctions Act 2011 and the Autonomous
Sanctions Regulations 2011;
-
designate individuals subject to the powers under the Charter
of the United Nations Act 1945 by reference to a UN Security Council
resolution or decision;
-
expand the basis on which the Minister for Foreign Affairs can
designate an individual under the Autonomous Sanctions Regulations 2011;
-
amend the basis on which a person
is prohibited from making assets available to designated persons or expand the
basis on which a person will commit an offence if they make an asset available
to a designated person; or
-
expand the definition of
'controlled asset' to enable the assets of a person acting on behalf of a
designated person to be frozen.
1.48
In order to understand the effect of the
instruments under review it is necessary to understand how the designation and
declaration powers work under the Autonomous Sanctions Act 2011 and the Charter
of the United Nations Act 1945.
1.49
Firstly, the Autonomous Sanctions Act
2011 (in conjunction with the Autonomous Sanctions Regulations 2011
and various instruments made under those regulations) provides the power
for the government to impose broad sanctions to facilitate the conduct of
Australia's external affairs (the autonomous sanctions regime).
1.50
Sanctions can be imposed under the
autonomous sanctions regime if the Minister for Foreign Affairs is satisfied
that doing so will facilitate the conduct of Australia's relations with other
countries or with entities or persons outside Australia, or will otherwise deal
with matters, things or relationships outside Australia.[25] The Autonomous Sanctions
Regulations 2011 sets out the countries and activities for which a person or
entity can be designated.[26]
1.51
Secondly, the Charter of the United
Nations Act 1945 (in conjunction with various instruments made under that
Act)[27]
gives the Australian government the power to apply sanctions to give effect to
decisions of the United Nations Security Council by Australia (the UN Charter
sanctions regime).
1.52
Sanctions can be imposed under the UN
Charter sanctions regime if the UN Security Council has made a decision under
Chapter VII of the Charter of the United Nations 1945 (UN Charter), not
involving the use of armed force, that there exists 'any threat to the peace,
breach of the peace or act of aggression' and Australia is obliged under the UN
Charter to carry out that decision as a matter of international law.[28] The Charter of the United
Nations (Dealing with Assets) Regulations 2008 and a number of other
instruments made under the UN Charter sanctions regime sets out the criteria
for designating a person.[29]
1.53
Sanctions under both the autonomous
sanctions regime and the UN Charter sanctions regime (together referred to as
the sanctions regimes) can:
-
designate or list persons or
entities for a particular country with the effect that the assets of the
designated person or entity are frozen, and declare that a person is prevented
from travelling to, entering or remaining in Australia; and
-
restrict or prevent the supply,
sale or transfer or procurement of goods or services.
1.54
As at 2 September 2015, 1110 individuals and 854 entities were subject
to targeted financial sanctions or travel bans under both sanctions regimes
(449 individuals under the autonomous sanctions regime and 661 under the
UN Charter regime). The Consolidated List of all persons and entities
subject to targeted financial sanctions or travel bans under both sanctions regimes
includes the listed individual's name (and any aliases), date of birth, place
of birth and date of listing. In some cases their address, citizenship details,
passport number and licence number, as well as information about their
activities and physical description, is also included.
1.55
The Consolidated List currently includes the names of three Australian
citizens.[30]
Background
1.56
As set out below, a number of instruments dealing with the sanctions
regimes have previously been examined by the committee, while the committee has
deferred its examination of a number of other instruments (see paragraph [1.64]
above). To date, the statements of compatibility accompanying these instruments
have generally failed to identify any human rights as being engaged and,
therefore, have provided no further human rights assessment.
1.57
The instruments under consideration expand or apply the operation of the
sanctions regime by designating or declaring that a person is subject to the
sanctions regime, or by amending the regime itself. To assess whether these
instruments are compatible with human rights, it is necessary to assess whether
the sanctions regime itself is compatible with human rights.
1.58
The committee's previous examination of some of these instruments is set
out in its Sixth Report of 2013, Seventh Report of 2013 and Tenth
Report of 2013.[31]
The committee previously sought information from the Minister for Foreign
Affairs as to whether the instruments were compatible with a number of human
rights. The committee noted that this was a complex area that required careful
consideration of human rights and various competing interests and ultimately
asked if the minister could comprehensively review the sanctions regime with
respect to Australia's international human rights obligations.
1.59
The former minister responded stating that he had instructed the
Department of Foreign Affairs and Trade to carefully consider the committee's
recommendation that it conduct a review. On 10 December 2013 the committee
wrote to the current Minister for Foreign Affairs to draw her attention to the
committee's consideration of these matters and to reiterate its request for a
review in relation to both sanctions regimes.
1.60
The committee subsequently deferred its consideration of a number of
instruments relating to both sanctions regimes pending receipt and
consideration of the minister's response. All of the instruments listed above
at paragraph [1.64] are now considered as part of the following analysis.
1.61
On 16 February 2015 the minister provided her response, as set out
below.
Minister's response
As you are aware, sanctions regimes are imposed only in
situations of international concern, including the grave repression of human
rights, the proliferation of weapons of mass destruction or their means of
delivery, or armed conflict. Modern sanctions regimes impose highly targeted
measures designed to limit the adverse consequences of the situation, to seek
to influence those responsible for it to modify their behaviour, and to
penalise those responsible.
As the former Committee noted, the implementation of
sanctions is a complex issue that requires careful consideration of the various
competing interests involved, including human rights. Sanctions measures that
are targeted against designated or declared persons necessarily involve the
balancing of the human rights of those persons, with the necessity of
preventing broader, and often egregious, human rights abuses arising from a
situation of international concern. As the process of considering the various
competing interests is undertaken in the process of implementation, I see no
need for a further review by the Department.[32]
Compatibility of the sanctions regimes with human rights
1.62
The committee notes that aspects of both of the sanctions regimes may
operate variously to both limit and promote human rights. For example, sanctions
prohibiting the proliferation of weapons of mass destruction will promote the
right to life. However, the committee's current and previous examination of
Australia's sanctions regimes has been, and is, focused solely on measures that
impose restrictions on individuals.
1.63
The committee notes that the focus of the analysis below is in relation
to the human rights obligations owed to individuals located in Australia.
However, the committee is unaware whether any of the designations or
declarations made under the sanctions regime has affected individuals living in
Australia (although three current designations apply to Australian citizens).
1.64
In this regard, it is important to note that the committee's mandate is
to examine Acts and legislative instruments for compatibility with human
rights, and that the application of the committee's analytical framework
provides an assessment of whether legislation could be applied in a way that
would breach human rights.
1.65
The analysis below therefore provides an assessment of whether both
sanctions regimes could breach the human rights of persons to whom Australia
owes such obligations, irrespective of whether there have already been
instances of individuals living in Australia affected by these measures.
Multiple rights
1.66
The committee considers that the autonomous sanctions regime and the UN
Charter regime engage and may limit multiple human rights, including:
-
right to privacy;[33]
-
right to a fair hearing;[34]
-
right to protection of the family;[35]
-
right to equality and non-discrimination;[36]
-
right to an adequate standard of living;[37]
-
right to freedom of movement (in relation to the cancellation of
a visa of a person declared under the autonomous sanctions regime);[38]
and
-
prohibition against non-refoulement (in relation to the
cancellation of a visa of a person declared under the autonomous sanctions
regime).[39]
1.67
The committee's analysis of the compatibility of the sanctions regimes
with a number of these rights is set out below.[40]
1.68
The committee acknowledges that sanctions regimes operate as mechanisms
for applying pressure to regimes and individuals with a view to ending the
repression of human rights internationally.[41]
The committee notes the importance of Australia acting in concert with the
international community to prevent egregious human rights abuses arising from
situations of international concern. The committee considers that laws to
facilitate this effort pursue a legitimate objective for the purposes of
international human rights law.
1.69
However, in respect of the minister's advice that the sanctions regimes
seek 'to penalise those responsible' for the repression of human rights, the
committee regards it as important to recognise that the sanctions regimes
operate independently of the criminal justice system, and are used regardless
of whether a designated person has been charged with or convicted of a criminal
offence. While the punishing of those responsible for human rights abuses is a
legitimate objective in cases where there has been a judicial determination of
guilt, it may not be regarded as such in cases where punishment is imposed on
an individual by the executive without any right to judicial review.
1.70
Further, the committee notes that the evidence as to whether sanctions
regimes are effective in achieving the aims set out by the minister appears to
be inconclusive;[42]
and there are concerns that unilaterally imposed sanctions may in practice
impact adversely on the human rights of civilian populations in countries
targeted by sanctions.[43]
The committee also notes the difficulty in establishing a rational connection
between each designation or declaration of an individual and the objective of
ending the repression of human rights internationally. Such concerns raise
significant questions as to whether sanctions regimes are rationally connected
to the objectives which they seek. However, as such questions may ultimately
turn on the particular degree and mix of political strategies aimed at ending
international human rights abuses, for the purpose of the analysis below, the
committee accepts that the sanctions regimes are rationally connected to their
objective. The committee therefore has focused on the question of whether any
identifiable limitations of human rights arising from the sanctions regimes are
proportionate to their stated objective.
1.71
Noting that the minister has declined to undertake a broader review of
the sanctions regimes, the analysis below sets out a number of specific human
rights concerns in relation to which the minister's advice is sought.
'Freezing' of designated person's assets
1.72
Under both sanctions regimes, the effect of a designation is that it is
an offence for a person to make an asset directly or indirectly available to,
or for the benefit of, a designated person.[44]
A person's assets are therefore effectively 'frozen' as a result of being
designated. For example, a financial institution is prohibited from allowing a
designated person to access their bank account. The sanctions regimes can apply
to persons living in Australia or could apply to persons outside Australia.
1.73
The scheme provides that the minister may grant a permit authorising the
making available of certain assets to a designated person.[45] An application for a permit
can only be made for basic expenses, to satisfy a legal judgment or where a
payment is contractually required.[46]
A basic expense includes foodstuffs; rent or mortgage; medicines or medical
treatment; public utility charges; insurance; taxes; legal fees and reasonable
professional fees.[47]
1.74
The committee considers that the designation of a person under the
sanctions regimes therefore limits a person's right to privacy, and
particularly the aspect of the right relating to personal autonomy in one's
private life.
1.75
The committee notes that its discussion in relation to the right to
privacy applies to the autonomous sanctions regime and to the designation of a
person by the minister under the UN Charter sanctions regime. It does not apply
in relation to the automatic designation of a person by the UN Security
Council, noting that under international law, Australia is bound by the UN
Charter to implement UN Security Council decisions.[48] Accordingly, obligations
under the UN Charter override Australia's obligations under international human
rights law.[49]
For further discussion in relation to the automatic designation process under
the UN Charter sanctions regime see paragraphs [1.131] to [1.132] below.
Right to privacy
1.76
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.
1.77
Privacy is linked to notions of personal autonomy and human dignity: it
includes the idea that individuals should have an area of autonomous
development; a 'private sphere' free from government intervention and excessive
unsolicited intervention by others. The right to privacy requires that the
state does not arbitrarily interfere with a person's private and home life.
1.78
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 with the right to privacy
1.79
As noted above, the freezing of a person's assets and the requirement
for a designated person to seek the permission of the minister to access their
funds for basic expenses imposes a limit on that person's right to a private
life, free from interference by the state.
1.80
The committee notes that, for example, in relation to a similar regime
in the United Kingdom, the House of Lords held that the regime 'strike[s] at
the very heart of the individual's basic right to live his own life as he
chooses'.[50]
Lord Brown concluded:
The
draconian nature of the regime imposed under these asset-freezing Orders can
hardly be over-stated. Construe and apply them how one will...they are scarcely
less restrictive of the day to day life of those designated (and in some cases
their families) than are control orders. In certain respects, indeed, they
could be thought even more paralysing. Undoubtedly, therefore, these Orders
provide for a regime which considerably interferes with the [right to privacy]...[51]
1.81
The need to get permission from the minister to access money for basic
expenses could, in practice, impact greatly on a person's private and family
life. For example, it could, mean that a person whose assets are frozen would
need to apply to the minister whenever they require funds to purchase
medicines, travel or meet other basic expenses. The permit may also include a
number of conditions. These conditions are not specified in the legislation and
accordingly, there is wide discretion available to the minister when imposing
conditions on the granting of a permit. In the UK, under the permit system
conditions imposed include requiring a designated person to provide receipts
for every item of expenditure, and, if receipts are not available (for example,
for purchases bought from a market stall), details must be provided of the
amount spent, where the money was spent and a description of what was
purchased.
1.82
The committee notes that this limitation is not identified as being
engaged or otherwise considered in any of the statements of compatibility
accompanying the instruments examined by the committee to date. The statements
of compatibility therefore provide no justification for limiting this right.
Notwithstanding this, the committee notes that the former Minister for Foreign
Affairs briefly addressed this in correspondence to the committee in 2013,
stating:
To the extent that
such measures limit these individuals' right to privacy, it is the Government's
view that this is an acceptable restriction given their involvement in
[activities that seriously undermine democracy, respect for human rights and
the rule of law in Zimbabwe] and the need to protect those suffering from such
abuses.[52]
1.83
The committee's usual expectation where a measure may limit a human
right is that the accompanying statement of compatibility provide a reasoned
and evidence-based explanation of how the measure supports a legitimate
objective, is rationally connected to and proportionate to that objective for
the purposes of international human rights law. This conforms with the
committee's Guidance Note 1,[53]
and the Attorney-General's Department's guidance on the preparation of
statements of compatibility.[54]
1.84
As noted above at [1.86], for the purposes of this analysis the
committee accepts that the use of international sanctions regimes to apply
pressure to regimes and individuals in order to end the repression of human
rights may be regarded as a legitimate objective for the purposes of
international human rights law. The committee also has accepted, for the
purposes of this analysis, that the measures are rationally connected to the
legitimate objective. However, the committee considers that the sanctions
regimes may not be regarded as proportionate to the stated objective. In
particular, the committee is concerned that there may not be effective
safeguards or controls over the sanctions regimes, including that:
-
the designation or declaration under the autonomous sanctions
regime can be based solely on the basis that the minister is 'satisfied' of a
number of broadly defined matters;[55]
-
the minister can make the designation or declaration without
hearing from the affected person before the decision is made;
-
there is no requirement that reasons be made available to the
affected person as to why they have been designated or declared;
-
no guidance is available under the Act or regulations or any
other publicly available document setting out the basis on which the minister
decides to designate or declare a person;
-
there is no report to Parliament setting out the basis on which
persons have been declared or designated and what assets, or the amount of
assets that have been frozen;
-
once the decision is made to designate or declare a person, the
designation or declaration remains in force for three years and may be
continued after that time. There is no requirement that if circumstances change
or new evidence comes to light that the designation or declaration will be
reviewed before the three year period ends;
-
a designated or declared person will only have their application
for revocation considered once a year—if an application for review has been
made within the year, the minister is not required to consider it;
-
there is no provision for merits review before a court or
tribunal of the minister's decision;
-
there is no requirement to consider whether applying the ordinary
criminal law to a person would be more appropriate than freezing the person's
assets on the decision of the minister;
-
the minister has unrestricted power to impose conditions on a
permit to allowing access to funds to meet basic expenses; and
-
there is no requirement that in making a designation or
declaration the minister needs to take into account whether in doing so, it
would be proportionate to the anticipated effect on an individual's private and
family life.
1.85
The committee notes that a number of other countries have legislated to
implement UN Security Council resolutions to freeze the assets of individuals.
The committee notes that the process of designation by the UN Security Council
has been subject to criticism internationally.[56]
The United Kingdom has terrorist asset freezing powers which are similar to
Australia's UN Charter sanctions regime in that it allows the executive to
freeze the assets of individuals.[57]
The committee considers it useful to look to comparative jurisdictions to see
how such jurisdictions implement their UN obligations. This is valuable in
determining whether there are less rights restrictive methods of achieving the
same objective. The committee notes that the United Kingdom has implemented its
obligations in a manner that incorporates a number of safeguards not present in
the Australian sanctions regimes, including:
-
challenges to designations made by the executive can be made by
way of full merits appeal rather than solely by way of judicial review;[58]
-
the prohibition on making funds available does not apply to
social security benefits paid to family members of a designated person (even if
the payment is made in respect of a designated person);[59]
-
quarterly reports must be made by the executive on the operation
of the regime;[60]
-
an Independent Reviewer of Terrorism Legislation reviews each
designation and has unrestricted access to relevant documents, government
personnel, the police and intelligence agencies;[61]
-
the executive provides a 'Designation Policy Statement' to
Parliament setting out the factors used when deciding whether to designate a
person;
-
an Asset-Freezing Review sub-group annually reviews all existing
designations, or earlier if new evidence comes to light or there is a
significant change in circumstances, and the executive invites each designated
person to respond to whether they should remain designated;[62]
and
-
when the executive is considering designating a person,
operational partners are consulted, including the police, to determine whether
there are options available other than designation, for example, prosecution or
forfeiture of assets (that is, to assist to ensure that there is not a less
rights restrictive alternative to achieve the objective).[63]
1.86
These kinds of safeguards in the United Kingdom asset-freezing regime
indicate that there may be less rights restrictive methods of achieving the
stated objective of the Australian sanctions regimes. The committee notes that
measures which limit human rights must be the least rights restrictive
alternative to achieve their legitimate objective in order to be considered a
proportionate limitation on human rights. The United Kingdom Independent
Reviewer of Terrorism Legislation (IRTL) has said in relation to the United Kingdom
asset-freezing powers, that '[e]xceptional powers require exceptional
safeguards'.[64]
The IRTL has comprehensively reviewed the United Kingdom's asset-freezing
regime, and individually considered all designations made under the relevant
Act. Following the IRTL's first report the United Kingdom government adopted
his recommendations to incorporate further safeguards when designating a
person.[65]
No such comprehensive review has been conducted in Australia.
1.87
The committee notes that Australia's Independent National Security
Legislation Monitor (INSLM) has the power to review the operation,
effectiveness and implications of designations under the UN Charter sanctions
regime relating to terrorism and dealings with assets.[66]
The INSLM's reports have made clear that the INSLM's ability to adequately
review designations of individuals is extremely hampered by the fact that
effective record keeping in relation to the designation process and the assets
frozen under the sanction regime is limited.[67]
1.88
The committee therefore considers that the freezing of a
designated person's assets limits a person's right to a private life. As set
out above, while the committee accepts that the sanctions regimes pursue a
legitimate objective, sufficient information has not been provided to establish
that the limitation is proportionate to achieve that objective. The committee
therefore seeks the advice of the Minister for Foreign Affairs as to how the
designation of a person under the autonomous sanctions regime and the ministerial
designation process under the UN Charter sanctions regime is a proportionate
limitation on the right to privacy, having regard to the matters set out at
paragraph [1.102] and whether there are adequate safeguards to protect the
right to a private life.
1.89
In addition, the committee is of the view that the designation process
under the sanctions regimes limits the right to privacy of close family members
of a designated person. Once a person is designated under either sanctions
regime, the effect of designation is that it is an offence for a person to
directly or indirectly make any asset available to, or for the benefit of, a
designated person (unless it is authorised under a permit to do so). This could
mean that close family members who live with a designated person will not be
able to access their own funds without needing to account for all expenditure,
on the basis that any of their funds may indirectly benefit a designated person
(for example, if a wife's funds are used to buy food for the household that the
designated person lives in).
1.90
This issue was considered by the House of Lords in relation to the UK's
terrorist asset freezing powers, which stated:
...the way the system
is administered affects not just those who have been designated. It affects
third parties too, including the spouses and other family members of those who
have been designated. For them too it is intrusive to a high degree.[68]
1.91
Similarly, the UK courts have described the effect of the asset freezing
regime on the spouses of those designated as 'disproportionate' and
'oppressive', and the invasion of the privacy of non-designated persons as
'extraordinary'.[69]
1.92
However, the statements of compatibility accompanying the relevant
instruments do not consider the effect of designation on a designated person's
family members.
1.93
The committee's usual expectation where a measure may limit a human
right is that the accompanying statement of compatibility provide a reasoned
and evidence-based explanation of how the measure supports a legitimate
objective, is rationally connected to and proportionate to that objective for
the purposes of international human rights law. This conforms with the
committee's Guidance Note 1,[70]
and the Attorney-General's Department's guidance on the preparation of
statements of compatibility.[71]
1.94
As noted above at [1.86], the committee accepts that the objective of
the sanctions regimes, which is to apply pressure on regimes and individuals to
help end the repression of human rights internationally, may be regarded as a
legitimate objective for the purposes of international human rights law. The
committee also has accepted, for the purposes of this analysis that the
measures are rationally connected to the legitimate objective. However, the
committee considers that the sanctions regimes may not be regarded as
proportionate to its stated objective.
1.95
The committee therefore considers that the freezing of a
designated person's assets limits the right to privacy for close family members
of designated persons. As set out above, while the committee accepts that the
sanctions regimes pursue a legitimate objective, sufficient information has not
been provided to establish that the limitation is proportionate to achieve that
objective. The committee therefore seeks the advice of the Minister for Foreign
Affairs as to how the designation of a person under the autonomous sanctions
regime and the ministerial designation process under the UN Charter sanctions regime
is a proportionate limitation on the right to privacy, in particular having
regard to the matters set out at paragraph [1.102] and whether there are
adequate safeguards to protect the rights of close family members to a private
life.
Lack of effective access to an independent and impartial court or tribunal
(autonomous sanctions regime)
1.96
Under the autonomous sanctions regime a person can be designated or
declared by the minister on a number of grounds relating to whether the
minister is satisfied the person is or has been involved in certain activities.
These include, for example, that a person:
-
is a supporter of the former regime of Slobodan Milosevic;
-
is a close associate of the former Qadhafi regime in Libya (or an
immediate family member);
-
is providing support to the Syrian regime;
-
is responsible for human rights abuses in Syria;
-
has engaged in activities that seriously undermine democracy,
respect for human rights and the rule of law in Zimbabwe; or
-
is responsible for, or complicit in, the threat to the
sovereignty and territorial integrity of Ukraine.
1.97
The committee considers that the process for the making of designations
limits the right to a fair hearing.
Right to a fair hearing
1.98
The right to a 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 and to military disciplinary hearings.
1.99
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.
1.100
The right of access to the courts in civil proceedings may be limited if
it can be shown to seek to achieve a legitimate objective and the limitation is
rationally connected to, and a proportionate way to achieve, its legitimate
objective. The limitation as applied must also not restrict or reduce access to
the court or tribunal in such a way or to such an extent that the very essence
of the right is impaired.
Compatibility with the right to a
fair hearing
1.101
As noted above at [1.86], for the purposes of this analysis the
committee accepts that the objective of the autonomous sanctions regime, which
is to apply pressure on regimes and individuals to help end the repression of
human rights internationally, may be regarded as a legitimate objective for the
purposes of international human rights law. The committee also has accepted,
for the purposes of this analysis, that the measures are rationally connected
to the legitimate objective.
1.102
However, the committee considers that the scheme may not be regarded as
a proportionate means of achieving that objective. In particular, the right to
a fair hearing requires that a person whose rights and obligations are to be
determined is entitled to a fair and public hearing before an independent and
impartial court or tribunal established by law.
1.103
In particular, the autonomous sanctions regime enables a person to be
designated or declared by the minister on the basis of the minister's
subjective belief of a number of broadly-defined matters (examples set out
above at paragraph [1.114]). No further guidance is given in the Autonomous Sanctions Act 2011 or the Autonomous Sanctions Regulations 2011 as
to how the minister is to make that decision. A designation or declaration may
be revoked on the minister's own initiative or on an application by the affected
person.[72]
A designated or declared person will only have their application for revocation
considered once a year – if an application for review has been made within the
year, the minister is not required to consider it.[73]
There is nothing in the Autonomous Sanctions
Act 2011 or Autonomous
Sanctions Regulations 2011 that sets out what the minister is required to
consider on an application for revocation.
1.104
The committee notes that there is no provision for merits review of a
decision to designate or declare a person by the minister or of a decision not
to revoke a designation or declaration. While judicial review of such a
decision is available, judicial review is generally limited to the review of
the legality of a decision and not to its substantive merits and, as such, may
not be sufficient to satisfy the right to a fair hearing where issues of fact
are being disputed.
1.105
The effectiveness of judicial review of designations or declarations in
this case is reduced because there is no requirement that the minister must be
'reasonably' satisfied of sufficiently precise matters on which the designation
is based. Rather, the minister must only be 'satisfied' of a number of
imprecise matters (for example, that the person is a 'supporter' or 'close
associate' of particular regimes).[74]
In addition, the absence of a requirement for the minister to provide reasons
as to why a designation or declaration has been made (or will not be revoked in
the case of an application) means that it is unlikely that judicial review of the
minister's decision would succeed, because it could not scrutinise the factual
basis for the decision. In light of these factors, the committee considers that
designation decisions may in practice be effectively unreviewable.
1.106
The committee therefore considers that the designation and
declaration process under the autonomous sanctions regime, in not providing
effective access to an independent and impartial court or tribunal, limits the
right to a fair hearing. As set out above, while the committee accepts that the
autonomous sanctions regime pursues a legitimate objective, sufficient
information has not been provided to establish that the limitation is
proportionate to achieve that objective. The committee therefore seeks the advice
of the Minister for Foreign Affairs as to how the designation and declaration
of a person under the autonomous sanctions regime is a proportionate limitation
on the right to a fair hearing, in particular how, in the absence of merits
review, there are adequate safeguards to protect the right to a fair hearing.
Lack of effective access to an independent and impartial court or
tribunal (automatic designations under the UN Charter sanctions regime)
1.107
Under the UN Charter sanctions regime, as established under Australian
law, there are two methods by which a person can be designated:
-
automatic designation by the UN Security Council Committee; and
-
listing by the minister if he or she is satisfied on reasonable
grounds that the person is a person mentioned in UN Security Council resolution
1373.
1.108
In relation to automatic designation, the committee notes that there is
no process under Australian law for review of such a designation. However, a
person designated by the UN Security Council, other than those listed under the
Al Qaida sanctions regime, may submit a request for de-listing to the UN Focal
Point for Delisting. The Focal Point must facilitate consultations between the
governments of various states, which may lead to the person being delisted. A
person listed under the Al Qaida sanctions regime may submit a request for
delisting to the UN Ombudsperson, who can make a recommendation to the UN
Security Council on whether the person should be de-listed (although the
Council can, by consensus, decide to continue listing of a person in spite of
the Ombudsperson's recommendations).[75]
1.109
The committee considers that the automatic designation process by the UN
Security Council and consequently under the UN Charter sanctions regime limits
the right to a fair hearing.
Right to a fair hearing
1.110
The content of the right to a fair hearing is described above at
paragraphs [1.116] to [1.118].
Compatibility of the measure with
the right to a fair hearing
1.111
As previously stated,[76]
the committee considers that the automatic designation procedures by the UN
Security Council and consequentially under the UN Charter sanctions regime may
limit the right to a fair hearing because they do not satisfy the requirement
for a full hearing before an independent and impartial court or tribunal.
1.112
In particular, the committee notes that the Special Rapporteur on human
rights and counter-terrorism has stated that the UN procedures 'do not meet
international human rights standards concerning due process or fair trial'.[77] In a 2010 House
of Lords decision relating to the UK asset freezing regime, it was observed
that:
The Security Council
is a political, not a judicial, body...And it may be that the Committee's
procedures are the best that can be devised if it is to be effective in
combating terrorism. But, again, the harsh reality is that mistakes in
designating will inevitably occur and, when they do, the individuals who are
wrongly designated will find their funds and assets frozen and their lives
disrupted, without their having any realistic prospect of putting matters
right.[78]
1.113
The committee notes that there is no further process for review under
Australian law once a person has been designated by the UN Security Council. As
noted above at [1.86], for the purposes of this analysis the committee accepts
that the use of international sanctions regimes to apply pressure to regimes
and individuals in order to end the repression of human rights may be regarded
as a legitimate objective for the purposes of international human rights law.
The committee also appreciates that, under international law, Australia is
bound by the UN Charter to implement UN Security Council decisions;[79] and that
obligations under the UN Charter override Australia's obligations under
international human rights law.[80]
1.114
Therefore, the committee considers that the automatic designation
of a person in the event that the UN Security Council Committee has designated
that person, limits the right to a fair hearing as there is no provision for a
fair and public hearing before an independent and impartial court or tribunal.
As set out above, the committee considers that the review processes available
under the UN system may not contain sufficient human rights safeguards. Nevertheless,
the committee considers that Australia, in automatically designating a person
once a UN Security Council Committee designates that person, is acting in
accordance with its obligations under international law.
Lack of effective access to an independent and impartial court or tribunal
(ministerial designations under the UN Charter sanctions regime)
1.115
As noted above, the second method for the designation of persons under
the UN Charter sanctions regime is listing by the minister if he or she is
satisfied on reasonable grounds that the person is a person mentioned in UN
Security Council resolution 1373. UN Security Council resolution 1373 does
not list individuals, rather, it requires states to freeze the funds or assets
of anyone who commits, or attempts to commit, terrorist acts or participates in
or facilitates the commission of terrorist acts, or anyone who acts on behalf
of, or at the direction of, such a person.[81]
1.116
The committee considers that the ministerial listing procedures limit
the right to a fair hearing because they do not provide for merits review or
contain sufficient safeguards or procedural fairness to satisfy the requirement
for a full hearing before an independent and impartial court or tribunal.
1.117
A listing decision by the minister is not subject to merits review.
While such a decision is subject to judicial review, as set out above, judicial
review of a decision is generally limited to reviewing the legality rather than
the substantive merits of a decision and, as such, may not be sufficient to
satisfy the right to a fair hearing under article 14(1) if there are issues of
fact being disputed. In particular, there is no requirement that an affected
person be given reasons for why a decision to designate a person has been made.
In this respect the committee notes that the Independent National Security
Legislation Monitor (INSLM),[82]
in his review of the UN Charter sanctions regime, found that in relation to the
only file available to it for review, the minister had refused to provide the
applicant with the reasons for the decision not to delist the person.[83] The committee
is concerned that failing to provide the applicant with any information at all
as to why a designation decision was made provides the affected person with no
opportunity to challenge the making of that decision.
1.118
The committee therefore considers that the designation process by
the minister under the UN Charter sanctions regime, in not providing effective
access to an independent and impartial court or tribunal, limits the right to a
fair hearing. As set out above, while the committee accepts that the UN Charter
sanctions regime pursues a legitimate objective, sufficient information has not
been provided to establish that the limitation is proportionate to achieve that
objective. The committee therefore seeks the advice of the Minister for Foreign
Affairs as to how the process of ministerial designation under the UN Charter
sanctions regime is a proportionate limitation on the right to a fair hearing,
in particular how, in the absence of merits review, there are adequate
safeguards to protect the right to a fair hearing.
Declarations under the autonomous sanctions regime—effect on families
1.119
The autonomous sanctions regime includes a power to declare a person for
the purpose of preventing that person from travelling to, entering or remaining
in Australia.[84]
Under the Migration Regulations 1994, a person declared in this way under the
autonomous sanctions regime will have their visa cancelled or will not be
granted a visa.[85]
1.120
The committee considers that the declaration process under the autonomous
sanctions regime engages and limits the right to protection of the family.
Right to protection of the family
1.121
The right to respect for the family is protected by articles 17 and 23
of the ICCPR and article 10 of the International Covenant on Economic, Social
and Cultural Rights (ICESCR). Under these articles, the family is recognised as
the natural and fundamental group unit of society and, as such, is entitled to
protection.
1.122
An important element of protection of the family, arising from the
prohibition under article 17 of the ICCPR against unlawful or arbitrary
interference with family, is to ensure family members are not involuntarily
separated from one another. Laws and measures which prevent family members from
being together, impose long periods of separation or forcibly remove children
from their parents, will therefore engage this right.
Compatibility of the measure with the right to protection of the
family
1.123
The committee notes that the declaration of a person living in Australia
under the autonomous sanctions regime would mean that that person may have
their visa cancelled, requiring them to leave Australia. This could result in
family members of a declared person also being required to leave Australia (if
their visas are dependent or linked to the declared person's visa), or result
in the separation of the family. In addition, immediate family members of
certain types of people may themselves be subject to designation or
declaration, even if there is no suspicion that the family members themselves
have been involved in any of the listed activities.[86]
1.124
The committee notes that section 19 of the Autonomous Sanctions
Regulations 2011 provides the minister with a discretion to waive the operation
of a declaration to the extent that it would have the effect of preventing a
person from travelling to, entering or remaining in Australia under a visa, on
the grounds that it would be in the national interest to do so or on
humanitarian grounds (what constitutes 'humanitarian grounds' is not defined).
The committee reiterates its longstanding view that, where a measure limits
human rights, discretionary or administrative safeguards alone are unlikely to
be sufficient to protect human rights.
1.125
The committee notes that none of the statements of compatibility
accompanying any of the instruments under consideration assess the effect of a
declaration on the right to protection of the family or the human rights of
family members of declared persons.
1.126
As noted above at [1.86], for the purposes of this analysis the
committee accepts that the objective of the autonomous sanctions regime, which
is to apply pressure on regimes and individuals to help end the repression of
human rights internationally, may be regarded as a legitimate objective for the
purposes of international human rights law. The committee also has accepted,
for the purposes of this analysis, that the measures are rationally connected
to the legitimate objective. However, the committee is concerned that, in
relation to the right to protection of the family of designated persons, the autonomous
sanctions regime may not be regarded as proportionate to its stated objective.
1.127
The committee therefore considers that the declaration by the
minister under the autonomous sanctions regime limits the right to protection
of the family. As set out above, while the committee accepts that the autonomous
sanctions regime pursues a legitimate objective, sufficient information has not
been provided to establish that the limitation is proportionate to achieve that
objective. The committee therefore seeks the advice of the Minister for Foreign
Affairs as to how the declaration process is a proportionate limitation on the
right to protection of the family, and in particular, whether there are
adequate safeguards in place to protect this right.
Designations or declarations in relation to specified countries
1.128
The autonomous sanctions regime allows the minister to make a
designation or declaration in relation to persons involved in some way with
currently eight specified countries. The automatic designation under the UN
Charter sanctions regime currently lists 13 countries from which people have
been designated. Two of the countries listed overlap between both sanctions
regimes.
1.129
As at 2 September 2015, there were 19 countries for which association
with aspects of the governments of those countries could lead to a person being
designated or declared under the sanctions regimes.
1.130
The committee considers that the designation of persons in relation to
specified countries limits the right to equality and non-discrimination.
Right to equality and non-discrimination
1.131
The rights to equality and non-discrimination are protected by articles
2 and 26 of the ICCPR. These are fundamental human rights that are essential to
the protection and respect of all human rights. They provide 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.
1.132
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or religion),[87] which has either the
purpose (called 'direct' discrimination), or the effect (called 'indirect'
discrimination), of adversely affecting human rights. Indirect discrimination
is 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.
Compatibility with the right to
equality and non-discrimination
1.133
The committee notes that the designation or declaration of a person
linked to regimes in any of the 19 specified countries does not require the
person to be a national of any of those countries. Therefore, the committee
does not consider that the sanctions regimes directly discriminate against a
person on the basis of their nationality.
1.134
However, the committee notes that it appears likely that nationals of
the 19 listed countries are more likely to be considered to be 'associated
with' or work for a specified government or regime than those from other
nationalities. Where a measure impacts on particular groups disproportionately
it establishes prima facie that there may be indirect discrimination.
However, such a disproportionate effect may be justifiable.
1.135
The statement of compatibility for one of the instruments considered in
this report acknowledges that the right to equality and non-discrimination is
engaged, but concludes the differential treatment is justifiable:
In terms of
non-discrimination, persons who are declared by the Minister will be treated
differently to persons who are not. This differentiation in treatment does not
constitute unlawful discrimination as it is a reasonable and proportionate
response aimed at punishing persons closely associated with regimes which are
involved in grave human rights breaches and unlawful armed conflict.[88]
1.136
The committee accepts, as set out above at [1.86], that the overall
objective of the sanctions regimes is a legitimate objective for the purposes
of international human rights law. The committee also has accepted, for the
purposes of this analysis, that the measures are rationally connected to the
legitimate objective. However, the committee considers that the process to
designate or declare a person may not be proportionate to the objective sought
to be achieved. As set out in the analysis above, the process by which a
person is made subject to a designation or declaration does not appear to
contain effective safeguards, including access to review the decision. The
committee notes that the one statement of compatibility that addressed this
issue stated what the legitimate objective of the measure was, without
providing any analysis as to how the measure is proportionate to achieving the
stated objective.
1.137
The committee therefore considers that the designation and
declaration by the Minister for Foreign Affairs under the sanctions regimes
limits the right to equality and non‑discrimination. As set out above,
while the committee accepts that the sanctions regime pursues a legitimate
objective, sufficient information has not been provided to establish that the
limitation is proportionate to achieve that objective. The committee therefore
seeks the advice of the Minister for Foreign Affairs as to how the designation or
declaration of a person under the autonomous sanctions regime is a
proportionate limitation on the right to equality and non-discrimination, and in
particular, whether there are adequate safeguards in place to protect this
right.
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