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 22 to 25 June 2015 and legislative instruments received from 29
May to 11 June 2015.
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 bills and concluded that they
do not raise human rights concerns. The following categorisation is indicative
of the committee's consideration of these bills.
1.7
The committee considers that the following bills do not require
additional comment as they either do not engage human rights or engage rights
(but do not promote or limit rights):
-
Acts and Instruments (Framework Reform) (Consequential
Provisions) Bill 2015;
-
Customs Tariff Amendment (Fuel Indexation) Bill 2015;
-
Excise Tariff Amendment (Fuel Indexation) Bill 2015;
-
Fuel Indexation (Road Funding) Bill 2015;
-
Fuel Indexation (Road Funding) Special Account Bill 2015;
-
Tax and Superannuation Laws Amendment (2015 Measures No. 2) Bill
2015;
-
Tax Laws Amendment (Small Business Measures No. 3) Bill 2015;
-
Treasury Legislation Amendment (Small Business and Unfair
Contract Terms) Bill 2015; and
-
Voice for Animals (Independent Office of Animal Welfare) Bill
2015.
1.8
The committee considers that the following bills do not require
additional comment as they promote human rights or contain justifiable
limitations on human rights (and may include bills that contain both
justifiable limitations on rights and promotion of human rights):
-
Aboriginal Land Rights (Northern Territory) Amendment Bill 2015;
-
Australian Defence Force Cover Bill 2015;
-
Australian Defence Force Superannuation Bill 2015;
-
Australian Government Boards (Gender Balanced Representation)
Bill 2015;
-
Civil Law and Justice (Omnibus Amendments) Bill 2015;
-
Defence Legislation Amendment (Superannuation and ADF Cover) Bill
2015;
-
Higher Education Support Amendment (New Zealand Citizens) Bill
2015;
-
Social Security (Administration) Amendment (Consumer Lease
Exclusion) Bill 2015; and
-
Veterans’ Affairs Legislation Amendment (2015 Budget Measures)
Bill 2015.
Instruments not raising human rights concerns
1.9
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.
1.10
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
1.11
The committee has deferred its consideration of the Shipping Legislation
Amendment Bill 2015.
1.12
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]
1.13
The committee also continues to defer a number of instruments in
connection with its ongoing examination of the autonomous sanctions regime and
the Charter of the United Nations sanctions regime.[3]
New matters
Australian Citizenship
Amendment (Allegiance to Australia) Bill 2015
Portfolio:
Immigration and Border Protection
Introduced:
House of Representatives, 24 June 2015
Purpose
1.14
The Australian Citizenship Amendment (Allegiance to Australia) Bill 2015
(the bill) proposes to amend the Australian Citizenship Act 2007
(Citizenship Act) to expand the basis on which a dual citizen's Australian
citizenship will cease. The bill includes two broad bases on which the
citizenship of dual nationals will cease:
- Automatic cessation on the basis of conduct:
-
if the person engages in specified conduct; or
-
if the person fights for, or is in the service of, a declared
terrorist organisation; and
- Automatic cessation on the basis of conviction:
-
if the person is convicted of a specified offence.
1.15
The bill also provides that the minister may revoke the citizenship of a
child of a parent whose citizenship has automatically ceased under any of these
new provisions.[4]
1.16
Proposed new section 33AA operates so that a dual Australian citizen
will automatically cease to be an Australian citizen if they engage in
specified conduct, as defined in the Criminal Code Act 1995 (Criminal
Code) such as:
-
engaging in international terrorist activities using explosive or
lethal devices;[5]
-
engaging in a terrorist act;[6]
-
providing or receiving training connected with preparation for,
engagement in, or assistance in a terrorist act;[7]
-
directing the activities of a terrorist organisation;[8]
-
recruiting for a terrorist organisation;[9]
-
financing terrorism;[10]
-
financing a terrorist;[11]
and
-
engaging in foreign incursions and recruitment.
1.17
The term 'engaging in foreign incursions and recruitment', includes:
-
entering a foreign country with the intention of engaging in
hostile activity, engaging in, or preparing to engage in, hostile activity
(which includes intending to overthrow by force or violence the government of a
foreign country; intimidating the public of a foreign country; and unlawfully
destroying or damaging property belonging to the government of a foreign
country);[12]
-
entering or remaining in an area declared by the Foreign Affairs
Minister;[13]
-
providing or receiving military training (or being present at a
meeting intending to provide or receive training), in order to prepare for
engaging in hostile activity;[14]
-
giving money, goods or services with the intention of supporting
or promoting the offence of engaging in hostile activity;[15]
-
allowing a building to be used to hold a meeting with the
intention of committing, supporting or promoting military training or the
giving of money or goods to support or promote engagement in hostile activity;[16]
and
-
publishing an advertisement or an item of news (for money or
other consideration) and either being reckless as to whether it is for the
purpose of recruiting persons to serve in any capacity with foreign armed
forces; or the advertisement or news item contains information relating to
where applications or information can be sought regarding serving with the
armed forces in a foreign country; or relating to how a person can travel to
another country in order to serve with the armed forces of a foreign country.[17]
1.18 Under proposed section 35A, a dual Australian citizen will cease to be
an Australian citizen if they are convicted of one of 57 offences under either
the Criminal Code or the Crimes Act 1914 (Crimes Act). In addition to
the type of conduct that will give rise to automatic cessation of citizenship
under proposed section 33AA, citizenship will also cease following conviction
for numerous offences, including:
-
knowing that another person intends to commit treason (including
harming the Prime Minister) and failing to inform the police within a
reasonable time;[18]
-
advocating terrorism and being reckless as to whether another will
engage in a terrorist act or commit a terrorist offence (this includes
advocating that someone make an asset available to a proscribed person under
the Charter of the United Nations Act 1945);[19]
-
communicating or making available (or recording or copying)
information concerning the security or defence of Australia or another country
without lawful authority and intending to give an advantage to another
country's security or defence;[20]
-
making funds directly or indirectly available to another person and
being reckless as to whether the other person will use the funds to facilitate
or engage in a terrorist act;[21]
-
destroying, damaging or impairing any article used by the Defence
Force or in connection with the manufacture of weapons of war, where 'from the
circumstances of the case, from his or her conduct or from his or her known
character as proved' it appears the intention was to prejudice the safety or
defence of Australia;[22]
-
assisting prisoners of war to escape;[23]
and
-
intentionally destroying or damaging any property belonging to
the Commonwealth.[24]
1.19
Under subsections 33AA(6) and 35A(6), the Minister for Immigration and
Border Protection must give written notice to an Australian citizen whose
conduct or conviction has resulted in the cessation of their citizenship, as
soon as the minister becomes aware of that conduct. The minister may also
either rescind this notice or exempt the person from the effect of these
sections if he or she considers it in the public interest to do so. The bill
provides that the minister's powers are personal, non-compellable and the rules
of natural justice do not apply.
1.20
The amendments in the bill will apply to all Australian citizens holding
dual citizenship, regardless of how the person became an Australian citizen.
Accordingly, the provisions will not render a person stateless.
1.21
A person who has lost their citizenship under the provisions in the bill
is prohibited from ever obtaining Australian citizenship again unless the
minister allows it.
1.22
Measures raising human rights concerns or issues are set out below.
Background
1.23
This analysis of the bill's engagement of human rights consists of three
parts:
-
Part 1 considers the bill's engagement of substantive human
rights (such as the right to freedom of movement) flowing from the loss of
citizenship under the bill. This part of the analysis considers the loss of
citizenship by both conduct and conviction together, as the consequences of
loss of citizenship is the same regardless of the method by which the
individual's citizenship is lost.
-
Part 2 of the analysis considers the bill's engagement of
procedural or process rights (right to a fair hearing, right to a fair trial
and right to an effective remedy). This part of the analysis considers
provisions providing for the automatic loss of citizenship from conduct,
separately from the loss of citizenship on conviction, as the measures engage
the process and procedural rights in different ways.
-
Part 3 considers how the measures particularly impact on
children, both in terms of the substantive loss of citizenship provisions and
the provision that gives the minister the power to remove the citizenship of a
child whose parents have lost their citizenship.
Part 1—Substantive human rights engaged by the bill
Automatic cessation of citizenship
1.24
As set out above, the bill seeks to amend the Citizenship Act to expand
the basis on which Australian citizenship will cease. The bill includes two
broad bases on which the citizenship of dual nationals will cease: automatic
cessation on the basis of conduct and automatic cessation on the basis of
conviction.
1.25
Currently under the Citizenship Act, citizenship can be lost in limited
circumstances. The principal exception to this is section 35 of the Citizenship
Act which allows for automatic cessation of citizenship if the person serves in
the armed forces of a country at war with Australia. This provision has never
been used to deprive a person of citizenship.
1.26
Very serious consequences flow from loss of Australian citizenship. The
enjoyment of many rights is tied to citizenship under Australian law including,
for example, the right to fully participate in public affairs.
Multiple rights
1.27
The proposed cessation of citizenship provisions engage and may limit
the following human rights and human rights standards:
-
right to freedom of movement;[25]
-
right to a private life;[26]
-
protection of the family;[27]
-
right to take part in public affairs;[28]
-
right to liberty;[29]
-
obligations of non-refoulement;[30]
-
right to equality and non-discrimination;[31]
-
right to a fair hearing and criminal process rights;[32]
-
prohibition against retrospective criminal laws;[33]
-
prohibition against double punishment;[34]
-
rights of children;[35]
-
right to work;[36]
-
right to social security;[37]
-
right to an adequate standard of living;[38]
-
right to health;[39]
and
-
right to education.[40]
1.28
While the cessation of citizenship may affect numerous human rights, the
analysis focuses on the immediate consequences of loss of citizenship and does
not consider the broader economic, social and cultural rights which may be
limited as a consequence of loss of citizenship.[41]
1.29
As set out above, this Part 1 of the analysis considers the impact of
the bill as a whole on the substantive human rights engaged, without
distinguishing how citizenship is lost (i.e. if it is an automatic loss on the
basis of conduct or on the basis of conviction).
Right to freedom of movement (right
to leave any country)
1.30
Article 12 of the International Covenant on Civil and Political Rights
(ICCPR) protects freedom of movement. The right to freedom of movement includes
the right to leave any country. The right may be restricted in certain
circumstances.
Compatibility of the measures with
the right to freedom of movement (right to leave any country)
1.31
The automatic loss of an Australian's citizenship engages and limits
their right to freedom of movement, including the right of a person to leave
any country.
1.32
The statement of compatibility acknowledges the right is engaged but
considers that it is nevertheless not limited because:
....the person is a dual citizen,
either a travel document from the person’s other country of nationality, a
temporary document issued by Australia, or some other facility could
potentially be used.[42]
1.33
However, this analysis assumes that the person's other country of
nationality would issue (or has previously issued and would not cancel) a
passport or the person is in a situation where they could apply for alternative
travel documents. For those whose citizenship ceases when they are outside
Australia, and in a country which they do not hold nationality, their right to
leave another country may be particularly limited in the absence of any valid
travel documents.
1.34
In addition, if a person is in Australia at the time it is recognised
that their citizenship ceases, they are entitled to an ex-citizen visa. This
visa allows them to remain in Australia but it prohibits any travel from
Australia as a person who leaves Australia on an ex-citizen visa loses any
entitlement to return to Australia.
1.35
Accordingly, the automatic cessation of citizenship clearly engages and
limits the right to freedom of movement (right to leave any country).
1.36 For a limitation on a right to be justifiable, it is necessary to
demonstrate that the measure seeks to achieve a legitimate objective, the
measure is rationally connected to that objective and is a proportionate means
of achieving the stated objective.
1.37 The statement of compatibility states that the legitimate objective of
the bill, in effectively stripping someone of citizenship, is to ensure the
safety of the Australian community. It does not assess whether the measures are
rationally connected, or proportionate, to this objective.
1.38
Under international human rights law, ensuring the safety of the
community would be considered a legitimate objective provided that such an
objective is founded on reasoned and evidence-based explanations of why the
measures address a pressing or substantial concern. As the Attorney-General's
Department's guidance on the preparation of statements of compatibility states,
the 'existence of a legitimate objective must be identified clearly with
supporting reasons and, generally, empirical data to demonstrate that [it is]
important'.
1.39
The statement of compatibility does not provide reasoning or evidence
that the measures support a pressing or substantial concern. Instead the
statement of compatibility contains statements about 'threat[s] to Australian
security', 'Australia's national security', 'security and safety considerations
of Australians', 'necessary to ensure the integrity of the citizenship
programme' and the 'protection of the Australian community'.[43]
No evidence is given of what these threats are, beyond references to 'existing
and emerging threats to national security' and reducing the possibility of a
person engaging in acts or further acts that harm Australians or Australian
interests.[44]
1.40
In order to determine that the bill pursues a legitimate objective the
legislation proponent needs to provide evidence and reasoning as to the nature
of the threat to national security including information about how many people
are likely to be affected by the cessation of citizenship powers and why
existing methods of keeping the community safe and protecting national safety
are insufficient.
1.41 In addition, if it were assumed that the bill pursued a legitimate
objective, it is not clear that the automatic cessation of citizenship is
rationally connected to that objective, that is that the measures are likely to
be effective in achieving the objective being sought. The automatic cessation
of citizenship applies to a very broad range of activities, many of which do
not appear to fall within the description of 'serious terrorism-related
activities'.[45]
For example, citizenship will automatically cease in relation to the following
activities:
-
damaging Commonwealth property;[46]
-
damaging property belonging to the government of a foreign
country (or entering a country with the intent of damaging such property);[47]
-
entering or remaining in a declared area (with no requirement for
any intent to carry out unlawful activity);[48]
-
publishing an item of news (for consideration of any kind) which
relates to how a person can travel to another country in order to serve with
the armed forces of a foreign country (including the legitimate forces of an
ally);[49]
and
-
damaging Defence Force property.[50]
1.42
It is not clear that removing citizenship from a person who has damaged
property or who has published an item of news would protect national security
or the Australian community.
1.43
In addition, in order for a limitation on a right to be justifiable, it
needs to be demonstrated that the measures are proportionate to the objective
sought to be achieved. It is not clear that the measures, in automatically
depriving a person of citizenship in relation to a broad range of
circumstances, can be said to be proportionate. In order to be proportionate a
limitation on a right must be the least rights restrictive means of achieving a
legitimate objective and must include appropriate safeguards.
1.44
As set out above, the bill would remove citizenship automatically on the
basis of a broad range of conduct thus limiting the right to freedom of
movement (right to leave any country). As listed above at paragraphs [1.15] to
[1.18] and [1.41], there are numerous listed offences for which citizenship
will automatically cease which are not related to terrorism or national
security. The statement of compatibility justifies the cessation of citizenship
on the basis that the person, in engaging in such conduct, has repudiated their
allegiance to Australia.[51]
However, not all of the types of conduct that will cause citizenship to cease
would appear to reflect a repudiation of allegiance, for example, graffitiing
Commonwealth property or damaging Defence Force property. Accordingly, the
measure appears significantly broader than necessary.
1.45
In addition, the loss of citizenship is automatic. The only exception is
in circumstances where the minister exercises his discretion to exempt a
person. This power is personal, non-delegable and not subject to the rules of
natural justice. This would not appear a robust safeguard to ensure that
individuals do not lose their citizenship and thus freedom of movement in
circumstances that would be unjust.
1.46 The loss of citizenship is also permanent. A person who has lost their
citizenship is ineligible under section 36A, to resume citizenship at any time.
This permanency underlies the extraordinary nature of the provisions,
particularly as many of the offences for which citizenship may be lost carry a
maximum prison term of no more than 5 years under the Criminal Code. The
statement of compatibility does not explain how such a measure is proportionate
to the legitimate objective.
1.47
In terms of safeguards, the automatic cessation of citizenship, would
occur at the time conduct occurred and not on the basis of a conviction.
Accordingly, there may be a genuine contest as to whether or not that conduct
has in fact occurred. An individual may have their freedom of movement limited,
not only in the absence of a conviction, but prior to or during their attempt
to challenge whether the conduct occurred. How this is reasonable and
proportionate is not explained in the statement of compatibility.
1.48 Further, the bill expressly excludes section 39 of the Australian
Security Intelligence Organisation Act 1979. This provision provides
that a Commonwealth agency must not take any action on the basis of any
communication from ASIO that does not amount to a security assessment.
Accordingly, the effect of the bill is that a Commonwealth agency can act on
preliminary ASIO information that is less certain than a security assessment
when determining whether someone is an Australian citizen or whether in fact
they have lost that citizenship based on conduct outlined by ASIO. In practice,
a decision may be made that a person has lost their citizenship on the basis of
supposition and conjecture as to whether they may have engaged in specified
conduct. This could apply when the person is not in Australia and not in a
practical position to challenge the lawfulness or correctness of this decision.
1.49
The committee's assessment of the automatic cessation of citizenship
powers against article 12 of the International Covenant on Civil and Political
Rights (right to freedom of movement) raises questions as to whether
restricting the freedom of movement of a person deprived of citizenship is
justifiable.
1.50
As set out above, the automatic cessation of citizenship engages and
limits the right to freedom of movement. 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
Immigration and Border Protection 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. In
particular, how many people are likely to be affected by these measures and why
existing laws and powers are insufficient to protect national security and the
safety of the Australian community;
-
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, advice is sought
as to how decisions will be made by the minister or officials to effectively
decide that a person's citizenship has ceased and whether this is the least
rights restrictive approach. In addition, specific advice is sought in relation
to each of the following offences or conduct, as to how each offence operates
in practice and whether it is proportionate that citizenship should cease on
the basis of each offence or conduct:
-
engaging in foreign incursions and recruitment as defined in
Division 119 of the Criminal Code (with specific information given in
relation to each offence provision in Division 119);
-
sections 80.1(2), 80.2, 80.2A, 80.2B, 80.2C, 91.1, 102.6(2),
102.7(2), 103.1, 103.2 of the Criminal Code; and
-
sections 24AB, 27 and 29 of the Crimes Act.
1.51 The committee also seeks the minister's advice on these questions
regarding each of the human rights set out in Part 1 below (articles 9, 12, 17,
23, 25 and 26 of the International Covenant on Civil and Political Rights and
article 10 of the International Covenant on Economic, Social and Cultural
Rights).
Right to freedom of movement (right
to enter one's 'own country')
1.52
Article 12 of the ICCPR protects freedom of movement. The right to
freedom of movement includes the right to enter one's own country—including a
right to remain in the country, return to it and enter it. The reference to a
person's 'own country' is not necessarily restricted to the country of one's
citizenship—it might also apply when a person has very strong ties to the
country.
1.53
There are few, if any, circumstances in which depriving a person of the
right to enter their own country could be justified. Australia cannot, by
stripping a person of nationality or by expelling them to a third country,
arbitrarily prevent a person from returning to his or her own country.
Compatibility of the measure with
the right to freedom of movement (right to enter one's own country)
1.54 The statement of compatibility acknowledges that the right to enter
one's 'own country' could apply to people whose citizenship has ceased:
While a person whose citizenship
has ceased or has been renounced would no longer be a citizen under Australian
law, under international law Australia may still be considered their 'own
country' for the purposes of Article 12(4). The phrase 'his own country' has
been interpreted broadly by the UN Human Rights Committee and the drafting
history of the provisions supports the interpretation that 'own country' goes
beyond mere nationality.[52]
1.55
This is consistent with recent views expressed by the UN Human Rights
Committee (HRC), including in relation to Australia. In Nystrom v. Australia[53]
the HRC interpreted the right to freedom of movement under article 12(4) of the
ICCPR as applying to non-citizens where they had sufficient ties to a country,
and noting that 'close and enduring connections' with a country 'may be
stronger than those of nationality'.[54]
1.56
In this context, the interpretation of 'own country' is clearly one that
imports a significantly broader meaning to the phrase than the term
'citizenship'. As such, even if a person has a second citizenship, if they are
deprived of their Australian citizenship in circumstances where Australia is
their 'own country' they would have a right to remain in, and return to,
Australia.
1.57
The statement of compatibility states that the 'own country' provisions
do not apply in relation to a person whose citizenship has automatically ceased
by their own conduct as by those very actions that person will have repudiated
their allegiance to Australia and any ties they may have to Australia will have
been voluntarily severed.[55]
1.58
However, the automatic cessation of citizenship provisions do not
require a person to specifically repudiate their citizenship of Australia –
rather, the provisions operate automatically (including in relation to the
commission of offences which would not appear to result in the repudiation of
allegiance, such as that of damaging government property).[56]
Accordingly, the statement of compatibility provides insufficient information
to demonstrate that the 'own country' provisions do not apply.
1.59
The statement of compatibility goes on to assess the compatibility of
the measure should a person still be able to consider Australia their 'own
country':
Should circumstances arise where
a person whose citizenship has ceased or has been renounced can properly
consider Australia to be “his [or her] country”, depriving them of the right to
enter Australia would not be arbitrary. It would be based on a genuine threat
to Australia’s security posed by a person who is fighting on behalf of or is in
the service of a terrorist organisation or is convicted of particular
terrorism-related offences and has repudiated their allegiance to Australia.
The cessation or renunciation of Australian citizenship (thereby preventing
return to Australia) is, in the Government’s view, proportionate to the
legitimate goal of ensuring the security of the Australian community.[57]
1.60
It is clear from the statement of compatibility that the intention is to
exclude Australian citizens who are outside Australia at the time their
citizenship ceases from being able to return to Australia. This clearly limits
the right to return to one's own country. The UN Human Rights Committee has
said, in relation to limitations on the right to return to one's own country:
there are few, if any,
circumstances in which deprivation of the right to enter one's own country
could be reasonable. A State party must not, by stripping a person of
nationality or by expelling an individual to a third country, arbitrarily
prevent this person from returning to his or her own country.[58]
1.61
It therefore seems difficult to justify depriving an Australian who has
become an 'ex-citizen' as a result of conduct that is deemed to result in
automatic loss of citizenship of the right to return to Australia. It is clear
that the deprivation of citizenship therefore engages and limits the right to
freedom of movement, and as such this limitation needs to be justified. Much of
the analysis at paragraphs [1.36] to [1.48] in relation to the legitimate
objective, rational connection and proportionality of the measures applies
equally (and even more forcefully given the UN Human Rights Committee's
statement that there are few circumstances in which it could be reasonable to
deprive a person of access to their own country) in relation to this aspect of
the right to freedom of movement.
Right to a private life
1.62
Article 17 of the ICCPR prohibits arbitrary or unlawful interferences
with an individual's privacy, family, correspondence or home.
1.63
A private life 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.
1.64
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 a private life
1.65
The statement of compatibility makes no reference to the right to a
private life. However, there is a strong argument that the bill engages and
limits the right to a private life. The term 'private life' has been interpreted
broadly, encompassing notions of a person's identity, which has been said to be
linked to a person's nationality.
1.66
The European Court of Human Rights, in interpreting the right to a
private life, has stated:
[T]he concept of 'private life'
is a broad term not susceptible to exhaustive definition. It covers the
physical and psychological integrity of a person. It can therefore embrace
multiple aspects of the person’s physical and social identity...the Court has
previously stated that it cannot be ruled out that an arbitrary denial of
citizenship might in certain circumstances raise an issue under [the right to a
private life] because of the impact of such a denial on the private life of the
individual.[59]
1.67
The United Kingdom Joint Committee on Human Rights, when examining the United
Kingdom's laws enabling citizenship to be removed, stated that 'nationality is
part of a person's identity and therefore, potentially at least, their private
life'.[60]
The United Kingdom government acknowledged in its supplementary memorandum on
the bill that gave additional powers to the Secretary of State to strip a
person of citizenship, that 'deprivation of citizenship is capable of engaging
[the right to a private life]'. The United Kingdom government referred to the
case of Genovese v Malta cited above and concluded:
This is because nationality is
part of a person's identity and, therefore, potentially their private life.
This applies to all deprivation, not just deprivation rendering some stateless.[61]
1.68
Accordingly, the deprivation of citizenship therefore engages and limits
the right to a private life, and as such this limitation needs to be justified.
The analysis at paragraphs [1.36] to [1.48] in relation to the legitimate
objective, rational connection and proportionality of the measures applies
equally in relation to the limitations on the right to a private life.
Protection of the family
1.69
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.
1.70
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
1.71
The statement of compatibility acknowledges that the right to the
protection of the family is engaged by the bill:
The cessation or renunciation of
the Australian citizenship of a parent may engage the right of a child to be
cared for by his or her parents in Article 7(1) and the right to family in
Article 23(1). However, they would only be engaged in circumstances where the
actions of the parent whose citizenship has ceased or been renounced casts
serious doubt on their suitability as a parent, and where the safety and
security considerations and Australia’s national security are likely to justify
a limitation of the right.
The right to family may also be
engaged in circumstances without children, for example in circumstances where a
husband’s Australian citizenship ceases or renounces but his wife’s citizenship
does not. The Government has considered this right and has assessed that the
security and safety considerations of Australians and national security
outweigh the rights of the individuals affected.[62]
1.72
As set out above, the offences and conduct for which citizenship will
automatically cease is extremely broad and does not support the generalised and
emotive statement that such conduct 'casts serious doubts on their suitability
as a parent'. For example, damaging property (including graffiti) or travelling
to a location declared to be off limits by the Minister for Foreign Affairs
does not necessarily suggest that such a person is not a suitable parent, or
whether it is reasonable and proportionate to separate that person from their
family.
1.73
The statement of compatibility appears only to identify the objective of
the measure—being security and safety considerations—and does not assess the
question of rational connection or, importantly, the proportionality of the
measures. In particular, no information is given as to whether due
consideration will be given to maintaining the family unit when decisions are
made to deny an ex-citizen re-entry to Australia or to deport a person from
Australia.
1.74
In addition, the analysis at paragraphs [1.36] to [1.48] in relation to
the legitimate objective, rational connection and proportionality of the
measures applies equally in relation to the limitations on the right to
protection of the family.
Right to take part in public
affairs
1.75
Article 25 of the ICCPR protects the right to take part in public
affairs. Article 25 provides the right to take part in public affairs and
elections, and guarantees the right of citizens to stand for public office, to
vote in elections and to have access to positions in public service. The right
to take part in public affairs applies only to citizens.
Compatibility of the measure with
the right to take part in public affairs
1.76
One of the consequences of losing citizenship is that a person who was
previously entitled to the right to take part in public affairs would be denied
that right. Aside from the right to vote, this also results in a person not
being entitled to stand for public office or to hold positions in the public
service. The statement of compatibility does not assess the effect of the
cessation of citizenship on the right to take part in public affairs.
Right to equality and
non-discrimination
1.77
The right to equality and non-discrimination is protected by articles 2,
16 and 26 of the ICCPR.
1.78
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.
1.79
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or religion),[63]
which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.[64]
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.[65]
Compatibility of the measure with
the right to equality and non-discrimination
1.80
The statement of compatibility states the right to equality and
non-discrimination is engaged by these measures, but states that any limitation
on this right is justifiable on the following bases:
Differentiation on the basis of
dual nationality is the consequence of obligations relating to statelessness,
and as such represents a measure of extra protection for those without dual
nationality, rather than a means of possibly selecting those who may be subject
to the new provisions.
The broader differentiation at
the heart of the cessation and renunciation amendments, i.e. that by acting
against the interests of Australia by choosing to engage in terrorism, they
have evidently repudiated their allegiance to Australia, thereby renouncing
their Australia citizenship, is proportionate to the seriousness of the
conduct.[66]
1.81
However, aside from the direct discrimination on the basis of dual
nationality, there is also the possibility of indirect discrimination on the
basis of race or religion.
1.82
International human rights law recognises that a measure may be neutral
on its face but in practice have a disproportionate impact on groups of people
with a particular attribute such as race, colour, sex, language, religion,
political or other status. Where this occurs without justification it is called
indirect discrimination.[67]
Indirect discrimination does not necessarily import any intention to
discriminate and can be an unintended consequence of a measure implemented for
a legitimate purpose. The concept of indirect discrimination in international
human rights law therefore looks beyond the form of a measure and focuses
instead on whether the measure could have a disproportionately negative effect
on particular groups in practice.
1.83
Where a measure impacts on particular groups disproportionately, it
establishes prima facie that there may be indirect discrimination. However,
under international human rights law such a disproportionate effect may be
justifiable.
1.84
The statement of compatibility did not address the issue of indirect
discrimination, and in relation to direct discrimination, simply stated that
the cessation of citizenship was proportionate to the seriousness of the
conduct, without providing any analysis about how it is proportionate (given
the range of offences it applies to). It is not clear whether these measures
would impact disproportionately on persons from a particular race or religion.
Right to liberty and obligations of
non-refoulement
1.85 Article 9 of the ICCPR protects the right to liberty—the procedural guarantee
not to be arbitrarily and unlawfully deprived of liberty. This prohibition
against arbitrary detention requires that the state should not deprive a person
of their liberty except in accordance with law. The notion of 'arbitrariness'
includes elements of inappropriateness, injustice and lack of predictability.
1.86
Accordingly, any detention must not only be lawful, it must also be
reasonable, necessary and proportionate in all the circumstances. Detention
that may initially be necessary and reasonable may become arbitrary over time
if the circumstances no longer require the detention. In this respect, regular
review must be available to scrutinise whether the continued detention is
lawful and non-arbitrary. The right to liberty applies to all forms of deprivations
of liberty, including immigration detention.
1.87
Article 9 applies to all forms of deprivations of liberty, including
immigration detention.
1.88
Australia has non-refoulement obligations under the Refugee Convention
for refugees, and under both the ICCPR and the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) for people who
are found not to be refugees.[68] This means that Australia
must not return any person to a country where there is a real risk that they
would face persecution, torture or other serious forms of harm, such as the
death penalty; arbitrary deprivation of life; or cruel, inhuman or degrading
treatment or punishment.[69]
1.89
Non-refoulement obligations are absolute and may not be subject to any
limitations.
1.90 Effective and impartial review by a court or tribunal of decisions to
deport or remove a person, including merits review in the Australian context,
is integral to complying with non-refoulement obligations.[70]
Compatibility of the measures with
the right to liberty and Australia's non-refoulement obligations
1.91
The statement of compatibility explains that a person whose citizenship
ceases under these provisions and who is in Australia at the time their
citizenship ceases, acquires an ex-citizen visa by operation of law.[71]
This is a permanent visa allowing the holder to remain in, but not re-enter,
Australia. It is subject to cancellation at any time. The statement of
compatibility also explains that expulsion from Australia may be the outcome of
a process that begins with cessation of citizenship.[72]
The statement of compatibility states that this is most likely under section
189 of the Migration Act 1958 (Migration Act) (but presumably this
should read section 198), which provides that an unlawful non-citizen can be
removed from Australia.
1.92
The statement of compatibility identifies that removal may be a
consequence of the cancellation of citizenship, but states:
any decision to remove a person
from Australia may be the result of decisions about visas following the
automatic cessation or renunciation of citizenship in this circumstance, it is
clearly linked to compelling reasons of national security. Judicial pathways
would be available for the review of such decisions.[73]
1.93
The statement of compatibility does not identify that the automatic
cancellation of citizenship engages and may limit the right to liberty and the
obligations of non-refoulement.
1.94
The right to liberty is engaged by the automatic cancellation of
citizenship as it appears likely that any person whose citizenship has ceased
because of having engaged in, or been convicted of, specified conduct, is
likely to have their ex-citizen visa cancelled on character grounds. Following
cancellation of this visa the ex-citizen would then be subject to mandatory
immigration detention pending their deportation.
1.95
The detention of a non-citizen on cancellation of their visa pending
deportation will generally not constitute arbitrary detention, as it is
permissible to detain a person for a reasonable time pending their deportation.
However, in the context of mandatory detention, in which individual
circumstances are not taken into account, and where there is no right to periodic
judicial review of the detention, as the committee has previously noted, there
may be situations where the detention could become arbitrary under
international human rights law.[74]
This is most likely to apply in cases where the person cannot be returned to
their country of nationality on protection grounds (due to the obligation of
non-refoulement or where there is no other country willing to accept the
person). This may apply to ex-citizens who have had their citizenship cancelled
on the basis of having engaged in specified conduct and whose country of dual
nationality may be unwilling to allow the person entry.
1.96
Continuing detention may become arbitrary after a certain period of time
without proper justification. The determining factor, however, is not the
length of detention, but whether the grounds for the detention are justifiable.
It is the blanket and mandatory nature of detention for those whose visa has
been cancelled but to whom Australia cannot deport that makes such detention
arbitrary. In particular, the Australian system provides for no consideration
of whether detention is justified and necessary in each individual
case—detention is simply required as a matter of policy. It is this essential
feature of the mandatory detention regime that invokes the right to liberty in
article 9 of the ICCPR.
1.97
In addition, even if a person can be deported to their country of dual
nationality or a third country, deportation in certain situations may raise
concerns around Australia's obligations of non-refoulement. As set out at
paragraphs [1.88] to [1.90], Australia has an obligation not to return any
person to a country where there is a real risk that they would face
persecution, torture or other serious forms of harm, such as the death penalty;
arbitrary deprivation of life; or cruel, inhuman or degrading treatment or
punishment.[75]
These obligations are absolute and may not be subject to any limitations.
1.98
There is nothing in Australian law that would prevent an unlawful
non-citizen, including ex-citizens, from being removed to a place where they may
face persecution. Rather, section 198 of the Migration Act requires an
immigration officer to remove an unlawful non-citizen in a number of
circumstances as soon as reasonably practicable. Section 197C of the Migration
Act also provides that, for the purposes of exercising removal powers under
section 198, it is irrelevant whether Australia has non-refoulement obligations
in respect of an unlawful non-citizen.
1.99
The obligation of non-refoulement and the right to an effective remedy
requires an opportunity (before removal) for effective, independent and
impartial review of the decision to expel or remove.[76]
Applied to the Australian context, there is no provision for merits review in
relation to removal of non-citizens from Australia. Rather, access is only to
judicial review which represents a considerably limited form of review,
allowing a court to consider only whether the decision was lawful (that is,
within the power of the decision maker). The court cannot undertake a full
review of the facts (that is, the merits) of a particular case to determine
whether the case was correctly decided.
1.100
Accordingly, in the Australian context, judicial review is not
sufficient to fulfil the international standard required of 'effective review',
because it is only available on a number of restricted grounds of review that
do not relate to whether that decision was correct or preferable. The
ineffectiveness of judicial review is particularly apparent when considered
against the purpose of effective review of non-refoulement decisions under
international law, which is to 'avoid irreparable harm to the individual'.
1.101 The committee's assessment of the automatic cessation of citizenship
powers against articles 6 and 7 of the International Covenant on Civil and
Political Rights (ICCPR) and the Convention Against Torture (CAT) (obligations
of non-refoulement) raises questions as to whether depriving a person of
citizenship, and therefore potentially exposing them to deportation, is
compatible with Australia's non-refoulement obligations, given the lack of
statutory protection and lack of 'independent, effective and impartial' review
of decisions to remove a person.
1.102 The committee therefore seeks the advice of the Minister for
Immigration and Border Protection as to whether the cessation of citizenship
provisions and decisions to remove an ex-citizen will be subject to
sufficiently 'independent, effective and impartial' review so as to comply with
Australia’s non-refoulement obligations under the ICCPR and the CAT.
Part 2 – Procedural and process rights
1.103
Part 2 addresses procedural and process rights in relation to proposed
powers to automatically remove citizenship.
1.104
As discussed above, the enjoyment of a range of rights and entitlements
under Australian law is tied to Australian citizenship. The processes by which
citizenship may be stripped, and the safeguards that exist in relation to this
process, are therefore of great importance to the question of compatibility
with human rights.
1.105
The proposed provisions for the loss of citizenship engage and limit a
number of procedural and process rights including:
-
the right to a fair trial;
-
the right to a fair hearing; and
-
the right to an effective remedy.
1.106
Each measure which removes the citizenship of adults are addressed in
turn. Particular human rights concerns in relation to loss of a child's
citizenship are set out in Part 3 below.
Automatic loss of citizenship through conduct
1.107
As noted at [1.16] to [1.17] above, under proposed section 33AA a dual
Australian citizen will automatically lose their Australian citizenship if they
engage in specified conduct.
1.108
In addition, under new subsection 35(1) a person automatically ceases to
be an Australian citizen if the person is a dual national and the person,
outside of Australia, serves in the armed forces of a country at war with
Australia or fights for, or is in the services of, a declared terrorist
organisation. A 'declared terrorist organisation' is any terrorist organisation
as defined by the Criminal Code and declared by the Minister for Immigration
and Border Protection.
Right to a fair hearing
1.109
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. 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.
Compatibility of the measure with
the right to a fair hearing
1.110
The statement of compatibility states that the right to a fair hearing
is not limited by the measure as:
The proposal does not limit the
application of judicial review of decisions that might be made as a result of
the cessation or renunciation of citizenship. In a judicial review action, the
Court would consider whether or not the power given by the Citizenship Act has
been exercised according to law. A person also has a right to seek declaratory
relief as to whether the conditions giving rise to the cessation have been met.[77]
1.111
However, the statement of compatibility does not fully explain how the
availability of judicial review and the potential for declaratory relief would
be sufficient for compatibility with the right to a fair hearing.
1.112
The statutory scheme for judicial review in Australia is the Administrative
Decisions (Judicial Review) Act 1977 (ADJR Act), and represents a
considerably limited form of review in that it allows a court to consider only
whether a decision was lawful (that is, was within the power of the decision
maker).
1.113
However, the construction of the proposed provisions mean that it is
unclear that the minister does in fact make a decision to remove a person's
citizenship. Rather, a person's citizenship is automatically lost from the time
an individual engages in any of the conduct outlined above under proposed
section 33AA or 35(1).
1.114
Given this, it appears very unlikely that the ADJR Act will apply to the
automatic loss of citizenship under section 33AA or 35(1).
1.115
However, an individual whose citizenship has been lost may still seek
declaratory relief from a court. A declaration by a court is not 'judicial
review' as commonly understood in the Australian context, but rather a
statement of the law or of the rights and duties of a party,[78]
and in the present case would presumably require the court to consider whether
or not the conduct leading to the automatic loss of citizenship had actually
occurred. The court could therefore, in effect, declare that an individual's
citizenship was never lost.
1.116
However, it should be noted that there is significant uncertainty as to
how an application for declaratory relief in relation to the automatic loss of
citizenship would operate in practice.
1.117
This is because of the unusual construction of proposed section 33AA and
amended section 35, whereby particular conduct is deemed to be a renunciation
of citizenship, with the consequent automatic loss of citizenship. This
mechanism is to be contrasted with the loss of citizenship occurring, for
example, directly through the decision of a court or the executive.[79]
1.118
First, it is unclear whether, in the absence of a decision, the onus of
proof in such a matter would rest with the respondent or with the plaintiff
(that is, with the person whose citizenship has purportedly been lost). If the
latter, the plaintiff may be placed in the difficult position of having to
prove that they had not engaged in the conduct which led to the automatic loss
of their citizenship. The inherent difficulty in proving a negative for a
plaintiff may seriously limit that person's right to a fair hearing.
1.119
It may be, however, that a court would approach the question of whether
the conduct had occurred as a matter of 'jurisdictional fact'. A jurisdictional
fact is one that must exist in order for a decision maker to lawfully exercise
a power.[80]
In relation to objective jurisdictional facts, a court can receive evidence and
decide for itself whether or not the fact exists.[81]
1.120
If a court were to take such an approach, because the conduct resulting
in automatic loss of citizenship is to have the same meaning as in the Criminal
Code, the court would essentially be required to determine whether a
particular crime has been committed. However, while it is usually the
respondent who must prove the existence of a 'jurisdictional fact', because the
proposed provision is self-executing (meaning there is no decision as such), it
may be unlikely that a court would approach the question of whether the conduct
had occurred as one of 'jurisdictional fact'.
1.121
The proceedings under discussion are civil rather than criminal in
nature under Australian domestic law. It is important to note therefore that
the civil standard of proof is on the balance of probabilities, rather than to
the criminal standard of beyond reasonable doubt.[82]
As discussed below, the application of civil burdens and standards of proof
without the usual protections afforded in a criminal proceeding also adversely
affects the compatibility of the measure with the right to a fair trial.
1.122
Further, the effect of the operation of sections 33AA and 35(1) is that
a person is considered to have lost their citizenship through conduct. However,
the evidence in relation to that alleged conduct may be in fact contested,
which means that an individual may be treated as a non-citizen before having
the opportunity to challenge or respond to allegations of specified conduct.[83]
1.123
Given the potential difficulties in bringing a claim for effective
review of the automatic stripping of citizenship, noted above, the right to a
fair hearing is engaged and limited in relation to the proposed measure.
1.124
In light of the serious consequences that may result from loss of
citizenship, it is critical that there is clarity and certainty around the
process for challenging any loss of citizenship. In this regard, it is noted
that the onus is on the legislation proponent to ensure that proposed processes
are compatible with the right to a fair hearing, including that there is
procedural fairness and equality in proceedings.
1.125
However, the statement of compatibility for the bill does not provide
any information on how judicial review would operate in respect of proposed
sections 33AA and 35(1), including which party will bear the applicable
burden of proof or standard of proof, or address other uncertainties with
respect to the operation of sections 33AA and 35(1).
1.126
Such information is necessary to determine whether the measure is
compatible with the right to a fair hearing.
1.127
Indeed, noting the serious consequences of the loss of citizenship, it
may be appropriate for there to be specific guidance in the legislation in
relation to applicable burdens and standards of proof in respect of challenging
the loss of citizenship.
1.128 The committee therefore considers that the automatic loss of citizenship
through conduct engages and limits the right to a fair hearing under article 14
of the International Covenant on Civil and Political Rights. The statement of
compatibility provides insufficient information to allow a full assessment of
this potential limitation, particularly given the unusual construction of
proposed sections 33AA and 35(1).
1.129 The committee therefore seeks the advice of the Minister for
Immigration and Border Protection as to whether the availability of judicial
review and the potential for declaratory relief is sufficient for compatibility
with the right to a fair hearing in light of the particular construction of
sections 33AA and 35(1) (including with reference to where the burden of proof
falls and the standard of proof applicable to such proceedings).
Right to a fair trial
1.130
The right to a fair trial is protected by article 14 of the ICCPR. 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.
1.131
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)), the right not
to be punished twice for the same conduct (article 14(7)) 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
1.132
The statement of compatibility argues that the right to a fair trial is
not limited as individuals will have access to judicial review.
1.133
However, there are a range of specific guarantees in relation to the
right to a fair trial in the determination of a criminal charge which would not
be available in a civil action such as judicial review or an application for
declaratory relief as described above. These specific guarantees include the
presumption of innocence and the right not to incriminate oneself.
1.134
As noted above at paragraphs [1.115] to [1.120], the courts may be able
to declare that the alleged conduct leading to the automatic loss of
citizenship has not occurred, with the result that an individual's citizenship
was never lost. However, in considering whether to grant such declaratory
relief, a court would effectively need to determine whether or not a particular
crime (specified as leading to the automatic loss of citizenship) has been
committed, in accordance with the definitions set out in the Criminal Code.
1.135
Given that the court would therefore effectively be determining a
criminal charge, the criminal process rights contained in article 14 of the
ICCPR appear to be engaged. The concept of a 'criminal charge' extends to acts
that are criminal in nature with sanctions that must be regarded as penal.[84]
1.136
The proposal for automatic loss of citizenship on the basis of conduct
as defined by reference to the Criminal Code, may constitute punitive action
against the individual. That is, it may be considered to be a form of
banishment.[85]
Banishment has historically been regarded as one of the most serious forms of
punishment.[86]
The statement of compatibility acknowledges that the ultimate outcome of
cessation of citizenship will most likely be removal from Australia for the
individual concerned.[87]
1.137
Accordingly, the removal of an Australian's citizenship, in
circumstances which may ultimately lead to their effective banishment, may be
considered to be a form of punishment under international human rights law.
1.138
As set out in the committee's Guidance Note 2, even if a penalty
is classified as civil or administrative under domestic law it may nevertheless
be considered 'criminal' under international human rights law. A provision that
is considered 'criminal' under international human rights law will engage
criminal process rights under articles 14 and 15 of the ICCPR, such as the
right to be presumed innocent.
1.139
The first consideration in determining whether a penalty may be
considered 'criminal' under human rights law is whether the penalty is
classified as 'criminal' under Australian domestic law—if classified as
criminal under Australian domestic law then the penalty will be considered
'criminal' for the purposes of human rights law. In this case it is unclear
whether or not the penalty is classified as 'criminal'. However, given the
direct references to loss of citizenship resulting from criminal conduct in the
proposed provision, it is arguable that under Australian domestic law the
penalty is classified as criminal in key respects.
1.140
Even if the penalty of loss of citizenship is not strictly classified as
criminal under Australian domestic law, it may still be considered 'criminal'
under international human rights law. The criteria for determining whether a
penalty may be considered 'criminal' under human rights law in circumstances
where it is not classified as criminal under domestic law relates to the nature
of the penalty and the severity of the penalty.
1.141
In relation to the nature of the penalty, the penalty is likely to be
considered criminal for the purposes of human rights law if (a) the purpose of
the penalty is to punish or deter; and (b) the penalty applies to the public in
general (rather than being restricted to people in a specific regulatory or
disciplinary context). In this regard, the statement of compatibility notes
that the measure may have a significant deterrent effect and could apply to all
dual citizens and is not limited to a particular regulatory context.
1.142
Even if both (a) and (b) of the above test are not fully satisfied, a
penalty may be considered 'criminal' depending upon its severity. In this
regard, the serious consequences that may ultimately flow from the loss of a
person's citizenship may also mean that the penalty is considered 'criminal'
for the purposes of human rights law, thereby engaging the full range of
criminal process rights under articles 14 and 15 of the ICCPR.
1.143
As discussed above, a person who loses their citizenship by the
operation of section 33AA may seek declaratory relief from a court. However,
this would be a civil matter under Australian domestic law and civil burdens
and standards of proof would therefore apply. That is, the matter would be
decided on the balance of probabilities. On the application of this lower
standard of proof an individual could therefore lose their citizenship despite
reasonable doubt as to whether they had engaged in the purported conduct. On
this basis, the measure would accordingly limit the right to be presumed
innocent.
1.144
Further, the process of seeking a declaration could only occur after
citizenship has already purportedly been lost. This means that the Australian
government may treat the person as a non-citizen on the basis of conduct
alleged but not proven. The measure would accordingly limit the right to be
presumed innocent. The presumption of innocence generally requires that the
prosecution prove each element of a criminal offence to the criminal standard
of beyond reasonable doubt. However, the statement of compatibility provides no
justification in relation to this limitation on the right to a fair trial.
1.145
Further, in seeking a declaration of the court an individual who had
lost their citizenship would have to bring evidence to the court as to why a
declaration should be provided in their favour and would not be able to rely on
other criminal process rights such as the protection against
self-incrimination.
1.146 The proposed provisions are likely to be considered 'criminal' for
the purposes of international human rights law. Accordingly, the criminal
process rights in articles 14 and 15 of the International Covenant on Civil and
Political Rights (ICCPR) would apply, including the right to be presumed
innocent and the right not to incriminate oneself. The automatic loss of
citizenship through conduct as defined by reference to the Criminal Code
engages and limits criminal process rights, which form part of the right to a
fair trial under article 14 of the ICCPR. This is because the measure does not
contain the protection of any of these criminal process rights.
1.147 As set out above, the statement of compatibility does not acknowledge
that the right to a fair trial is limited and accordingly does not justify that
limitation for the purposes of international human rights law. The committee
therefore seeks the advice of the Minister for Immigration and Border
Protection 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.
Quality of law
1.148
Human rights standards require that interferences with rights must have
a clear basis in law. This principle includes the requirement that laws must
satisfy the 'quality of law' test, which means that any measures which interfere
with human rights must be sufficiently certain and accessible, such that people
are able to understand when an interference with their rights will be
justified.
Compatibility of the measure with
the quality of law test
1.149
As outlined at paragraphs [1.112] to [1.120], there is a high degree of
uncertainty as to how the automatic loss of citizenship provisions will work in
practice. This includes how an individual may seek declaratory relief if they
believe they have not engaged in such conduct that led to the automatic
cessation of their citizenship and how the courts will determine the rights and
responsibilities of the parties in court proceedings.
1.150
As a matter of international human rights law, it is critical that there
is clarity and certainty around the processes for challenging any loss of
citizenship. In this regard, it is noted that the onus is on the legislation
proponent to ensure that the proposed processes are compatible with the right
to a fair hearing and right to a fair trial, including that there is procedural
fairness and equality in proceedings. For the purposes of the quality of law
test, it is insufficient for the legislation proponent to assert that the
courts will manage these uncertainties in accordance with established practice
and principles. It should be clear in the legislation how the provisions will
operate in practice and how the rights of individuals to due process and the
rule of law are protected by the bill.
1.151
The committee's assessment of the automatic cessation of citizenship
powers against the quality of law test raises questions as to whether the
provisions providing for automatic loss of citizenship for certain conduct are
sufficiently certain.
1.152
As set out above, the automatic cessation of citizenship engages the
quality of law test. The committee therefore seeks the advice of the Minister
for Immigration and Border Protection as to whether the measures are compatible
with the quality of law test.
Prohibition on double punishment
1.153
The right to a fair trial includes specific procedural guarantees.
Article 14, paragraph 7 of the ICCPR, provides that no one shall be liable to
be tried or punished again for an offence of which they have already been
finally convicted or acquitted in accordance with the law.
Compatibility of the measure with
the prohibition on double punishment
1.154
As outlined at paragraphs [1.46] to [1.54], the provisions that provide
for automatic loss of citizenship on the basis of defined conduct may be
considered punitive for the purposes of international human rights law. That
is, the loss of citizenship is a punishment for the conduct engaged in,
notwithstanding the absence of a court process to determine guilt beyond
reasonable doubt. The practical effect of this is that loss of citizenship may
occur before or during a criminal trial for specific offences that relate to
that conduct. Potentially, citizenship could also be lost in the context of a
trial at which a person is ultimately acquitted (because of the differing
standards of proof), meaning a person could effectively be tried twice for the
same conduct (which is also prohibited by article 14(7) of the ICCPR).
1.155
An individual subjected to both the automatic loss of citizenship and a
criminal conviction and punishment for the same conduct will effectively suffer
double punishment. The statement of compatibility does not address how these
measures are compatible with the prohibition on double punishment.
1.156 The committee's assessment of the automatic cessation of citizenship
powers against article 14(7) of the International Covenant on Civil and
Political Rights (prohibition on double punishment) raises questions as to
whether depriving a person of citizenship will act as a double punishment.
1.157 As set out above, the automatic cessation of citizenship may engage
and limit the prohibition on double punishment. The committee therefore seeks
the advice of the Minister for Immigration and Border Protection as to whether
the measures are compatible with article 14(7).
Right to an effective remedy
1.158
Article 2 of the ICCPR requires state parties to ensure access to an
effective remedy for violations of human rights. State parties are required to
establish appropriate judicial and administrative mechanisms for addressing
claims of human rights violations under domestic law. Where public officials
have committed violations of rights, state parties may not relieve perpetrators
from personal responsibility through amnesties or legal immunities and
indemnities.
1.159
State parties are required to make reparation to individuals whose
rights have been violated. Reparation can involve restitution, rehabilitation
and measures of satisfaction—such as public apologies, public memorials,
guarantees of non-repetition and changes in relevant laws and practices—as well
as bringing to justice the perpetrators of human rights violations.
1.160
Effective remedies should be appropriately adapted to take account of
the special vulnerability of certain categories of person including, and
particularly, children.
Compatibility of the measure with the
right to an effective remedy
1.161
The automatic loss of citizenship by conduct provisions engage and may
limit the right to an effective remedy as the provisions operate automatically
and may apply in circumstances where the individual concerned contests whether
the conduct actually occurred.
1.162
It is noted that the automatic cessation provisions would enable
government officials to take action notwithstanding that the minister has not
yet issued a notice, including declining consular assistance, and notwithstanding
the absence of a criminal conviction.
1.163
A person, who contests that they did not engage in the conduct causing
the automatic loss of citizenship, may apply to the federal courts to seek
declaratory relief. However, as set out above at paragraphs [1.115] to [1.120]
there is significant uncertainty as to how an application for declaratory
relief regarding the automatic loss of citizenship would operate in practice.
This uncertainty raises concerns about the efficacy of any judicial process to
ensure that a person who wrongfully lost their citizenship is able to seek
effective review and redress.
1.164
It is also noted that an Australian who loses their citizenship outside
of Australia may face significant practical hurdles in seeking access to courts
to seek declaratory relief. These include difficulty in obtaining the necessary
visas to travel to Australia to appear before the courts and the ability to
seek and obtain necessary documentary evidence to present to the courts.
1.165
The statement of compatibility does not assess the effect of the cessation
of citizenship on the right to an effective remedy.
1.166 The committee's assessment of the automatic cessation of citizenship
powers against article 2 of the International Covenant on Civil and Political
Rights (right to an effective remedy) raises questions as to whether a person
who has lost their citizenship will have access to an effective remedy.
1.167 As set out above, the automatic cessation of citizenship engages and
limits the right to an effective remedy. 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 Immigration and
Border Protection 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.
Automatic loss of citizenship on conviction
1.168
As noted at paragraph [1.18], under proposed section 35A, a dual
Australian citizen will cease to be an Australian citizen if they are convicted
of any one of 57 offences. The loss of citizenship following conviction engages
the prohibition on double punishment.
1.169
In addition, the provisions will apply to individuals who are convicted
following enactment of the bill even if the conduct that is the subject of that
conviction occurred prior to the Act's enactment. Accordingly, the provisions
engage the prohibition on retrospective criminal laws.
Prohibition on double punishment
1.170
The prohibition on double punishment is outlined at paragraph [1.153] above.
Compatibility of the measure with
the prohibition on double punishment
1.171
As outlined at paragraphs [1.132] to [1.142], the act of removing
someone's citizenship may be considered punitive for the purposes of
international human rights law. Provisions that automatically impose a loss of
citizenship following conviction for certain offences may be considered to
impose an additional punishment to that imposed by the court in accordance with
the Criminal Code. The statement of compatibility does not address how these
measures are nevertheless compatible with the prohibition on double punishment.
1.172 The committee's assessment of the automatic cessation of citizenship
powers on conviction for certain offences, against article 14(7) of the
International Covenant on Civil and Political Rights (prohibition on double
punishment) raises questions as to whether depriving a person of citizenship
will act as a double punishment inconsistent with this prohibition.
1.173 As set out above, the automatic cessation of citizenship on
conviction may engage and limit the prohibition on double punishment. The
committee therefore seeks the advice of the Minister for Immigration and Border
Protection as to whether the measures are compatible with article 14(7).
Prohibition against retrospective
criminal laws
1.174
Article 15 of the ICCPR prohibits retrospective criminal laws. This
prohibition supports long-recognised criminal law principles that there can be
no crime or punishment without law. Laws which set out offences need to be
sufficiently clear to ensure people know what conduct is prohibited.
1.175
This is an absolute right and it can never be justifiably limited.
1.176
Article 15 requires that laws must not impose criminal liability for
acts that were not criminal offences at the time they were committed. Laws must
not impose greater punishments than those which would have been available at
the time the acts were done. Further, if, after an offence is committed, a
lighter penalty is introduced into the law, the lighter penalty should apply to
the offender. This includes a right, where an offence is decriminalised, to the
retrospective decriminalisation (if the person is yet to be penalised).
Compatibility of the measure with
the prohibition on retrospective criminal laws
1.177
As set out above, the automatic loss of citizenship on conviction
provisions will apply to individuals who are convicted following enactment of
the bill, even if the conduct that is the subject of that conviction occurred
prior to the enactment.[88]
A core aspect of article 15 is that laws must not impose greater punishments
than those which would have been available at the time the acts were done.
Accordingly, the bill would appear to limit the absolute prohibition on
retrospective criminal laws. This is not identified or addressed in the
statement of compatibility.
1.178
The committee also notes that the bill was referred to the Parliamentary
Joint Committee on Intelligence and Security to inquire into and report. The
committee notes that as part of that referral the Attorney-General asked that
committee to consider whether proposed section 35A 'should apply
retrospectively with respect to convictions prior to the commencement of the
Act'.[89]
The committee notes that were amendments to be made to the bill to apply the
cessation of citizenship provisions to anyone ever convicted of any of the
listed offences, this would raise serious concerns about the compatibility of
the measures with the prohibition on retrospective criminal laws.
1.179 The committee's assessment of the automatic cessation of citizenship
powers on conviction for certain offences, against article 15 of the
International Covenant on Civil and Political Rights (ICCPR) (prohibition on
retrospective criminal laws) raises questions as to whether the provisions
should apply to conduct that occurs prior to the bill becoming law.
1.180 As set out above, the automatic cessation of citizenship on
conviction may engage and limit the prohibition on retrospective criminal laws
which is an absolute right. The committee therefore seeks the advice of the
Minister for Immigration and Border Protection as to whether the measures are
compatible with article 15(1) of the ICCPR.
Part 3—Children
1.181
The final part of the analysis considers how the bill will apply to
children, which under international human rights law means all people aged
under 18 years.
1.182
Proposed new section 33AA would operate so that a dual Australian
citizen will automatically cease to be an Australian citizen if they engage in
specified conduct, as defined in the Criminal Code. The Explanatory Memorandum
(EM) notes that the offences in the Criminal Code have limited application with
respect to minors. Under the Criminal Code, a person under 10 years is not
criminally responsible for an offence. Accordingly, the EM explains that
section 33A would not apply to persons under 10 years of age. However, it
should be noted that there is nothing in the bill itself that would restrict
the automatic cessation of citizenship on conduct provisions to those over the
age of criminal responsibility. It should also be noted that, despite what the
EM says, the statement of compatibility states that there are documented cases
of children fighting with extremist organisations and otherwise being involved
with terrorism and the 'proposed amendments apply to all Australian (dual)
citizens regardless of age'.[90]
1.183
The EM also notes that under the Criminal Code, a child aged between 10
and 14 years of age can only be criminally responsible for an offence if the
child knows that his or her conduct is wrong. This reflects that children have
different capacities and levels of maturity than adults to make judgements. The
EM is silent on how section 33A will apply to persons aged between 10 and 14
and whether the provisions in the bill will apply to a person in that age
bracket. Noting the analysis above in relation to the right to a fair hearing
and a right to fair trial, there is real uncertainty as to how judicial processes
would determine whether the provisions apply to young people under the age of
10 and between 10 and 14 years of age and uncertainty as to how court process
would work in practice.
1.184
The bill also amends section 35(1) of the Citizenship Act to provide
that a person automatically ceases to be an Australian citizen if they are a
dual national and fights for, or is in the services of, a declared terrorist
organisation. This provision does not reference the Criminal Code and
accordingly the proposed section 35(1) would certainly apply regardless of age.
For example, a six year old who fetches drinking water from a well for a
village elder who is fighting in a declared terrorist organisation would
automatically lose their citizenship. This would occur regardless of the
child's criminal culpability, or their understanding of how the fetching of
water from the well relates to or contributes to the activities of a terrorist
organisation.
1.185
Under proposed section 35A, a dual Australian citizen will cease to be
an Australian citizen if they are convicted of one of 57 offences (see
paragraph [1.18] above). The offences apply to children over 10 years of age.
Children aged 10 to 14 would only be convicted, and thus subject to automatic
loss of citizenship, if they knew that the conduct was wrong in accordance with
the standards and procedures of domestic criminal law.
1.186
As the automatic loss of citizenship provisions apply to children, the
preceding analysis of the rights implications of those measures set out in
Parts 1 and 2 applies equally to children and the minister's response
needs to address the human rights compatibility of those measures with respect
to their application to both adults and children. This Part considers specific
human rights obligations with respect to children that are engaged by these
measures.
1.187
In addition, this Part considers item 6 of the bill which gives the
minister a discretionary power to cancel the citizenship of a child following
the cancellation of the citizenship of the child's parent in accordance with
the provisions in the bill.
Automatic loss of citizenship
1.188
As set out above, the bill would amend the Citizenship Act to expand the
basis on which Australian citizenship will cease. The bill includes two broad
bases on which the citizenship of dual nationals will cease, automatic
cessation on the basis of conduct and automatic cessation on the basis of
conviction. Automatic loss of citizenship would apply to children as set out
above at paragraphs [1.182] to [1.185].
Obligation to consider the best
interests of the child
1.189
Under the Convention on the Rights of the Child (CRC), state parties are
required to ensure that, in all actions concerning children, the best interests
of the child is a primary consideration.[91]
1.190
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 measures with
the obligation to consider the best interests of the child
1.191
The statement of compatibility explains that the automatic loss of
citizenship for conduct engages the obligation to consider the best interests
of the child.
1.192
The statement of compatibility explains that:
The Government has considered the
bests interests of the child in these circumstances where conduct of a minor is
serious enough to engage the cessation or renunciation provisions and has
assessed that the protection of the Australian community and Australia's nation
security outweighs the best interest of the child.[92]
1.193
However, this statement misapprehends the nature of the obligation to
consider the best interests of the child. It is not possible to simply assert
that this obligation has been taken into account in a global sense and
considered to be outweighed by national security. The procedure for automatic
loss of citizenship in the bill must, as a matter of international law, provide
for a consideration of the best interests of the individual child, which may be
subject only to limitations that pursue a legitimate objective, are rationally
connected to that objective and otherwise proportionate with that objective.
The Committee on the Rights of the Child has said that the CRC:
seeks to ensure that the right is
guaranteed in all decisions and actions concerning children. This means that
every action relating to a child or children has to take into account their
best interests as a primary consideration. The word “action” does not only
include decisions, but also all acts, conduct, proposals, services, procedures
and other measures. [93]
1.194
The Committee on the Rights of Children has further explained that:
Viewing the best interests of the
child as “primary” requires a consciousness about the place that children’s
interests must occupy in all actions and a willingness to give priority to
those interests in all circumstances, but especially when an action has an
undeniable impact on the children concerned.[94]
1.195
The procedure for automatic loss of citizenship set out in the bill does
not appear to provide for a consideration of the best interests of the child,
as the provision applies automatically to specified conduct. The provision does
not take into account each child's capacity for reasoning and understanding in
accordance with their emotional and intellectual maturity. It does not take
into account the child's culpability for the conduct in accordance with
normative standards of Australian law. It does not take into account whether
the loss of citizenship would be in the best interests of the child given their
particular circumstances.
1.196
Instead, proposed section 33A would apply to all children aged 10 years
and above (or possibly to all children based on the statement in the statement
of compatibility) and proposed section 35(1) would apply to all children
regardless of age. In addition, as set out above in Part 1, the conduct for
which automatic loss of citizenship applies extends far beyond that which would
appear to genuinely threaten national security, including covering property
offences.
1.197
The only way that an individual child's circumstances may be taken into
account is if the minister decides to exempt a child from the operation of the
provisions. This power is entirely discretionary and not subject to the rules
of natural justice. There is no specific obligation on the minister that
requires his or her decision to take into account the best interests of the
child. As a result, this provision is not a sufficient safeguard for the
purposes of international human rights law.
1.198
Accordingly, the statement of compatibility has
not demonstrated that the provisions have been drafted consistently with
Australia's obligation to ensure that in all actions concerning a child, their
best interests are a primary consideration.
1.199 The committee's assessment of the automatic cessation of citizenship
powers against article 3 of the Convention on the Rights of the Child (best
interests of the child) raises questions as to whether the draft provisions are
compatible with Australia's obligation to consider the best interests of the
child in all actions concerning children.
1.200 As set out above, the automatic cessation of citizenship engages and
limits the obligation to consider the best interests of the child. 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 Immigration and Border Protection 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.
1.201 The committee also seeks the minister's advice on these questions in
relation to the rights contained in articles 7, 8 and 12 of the Convention on
the Rights of the Child (right to a nationality and right of the child to be
heard), as set out below.
The right to nationality
1.202
Every child has the right to acquire a nationality under article 7 of
the CRC and article 24(3) of the ICCPR.[95] Accordingly, Australia is required to adopt
measures, both internally and in cooperation with other countries, to ensure
that every child has a nationality when born. Article 8 of the CRC provides
that children have the right to preserve their identity, including their
nationality, without unlawful interference.
Compatibility of the measure with the right to nationality
1.203
The statement of compatibility acknowledges that the automatic loss of
citizenship for conduct provision engages and limits the right of a child to
preserve his or her nationality. The statement of compatibility states that the
provisions are lawful as a matter of domestic law and that the loss of
nationality:
...would in all the circumstance be
reasonable, proportionate and necessary in light of the serious conduct of the
child that gives rise of the cessation nor renunciation coming into effect.[96]
1.204
Whether or not the provisions are lawful under Australian domestic law
is not determinative of whether the provisions comply with Australia's obligations
under international law.
1.205
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,[97]
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'.[98]
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.
Right of the child to be heard in
judicial and administrative proceedings
1.206
Article 12 of the CRC provides that state parties shall assure to a
child capable of forming his or her own views the right to express those views
freely in all matters affecting the child. The views of the child must be given
due weight in accordance with the age and maturity of the child.
1.207
In particular, this right requires that the child is provided the
opportunity to be heard in any judicial and administrative proceedings
affecting them, either directly, or through a representative or an appropriate
body, in a manner consistent with the procedural rules of national law.
Compatibility of the measures with
the right of the child to be heard
1.208
The statement of compatibility acknowledges that the proposed measures
engage the right of the child to be heard. The statement of compatibility
focuses on the minister's power to exempt a person from the application of the
automatic loss of citizenship provisions but doesn't address the automatic
nature of the provisions themselves. As the provisions create an automatic loss
of citizenship flowing from certain conduct there is no opportunity for a child
to express their views and be heard before losing citizenship, which is
inconsistent with article 12.
1.209
In relation to the ministerial exemption power, the statement of
compatibility states that:
The Government considers that
this limitation on the right to be heard is necessary and proportionate in the
circumstances, given the serious conduct on the part of a child that has given
rise to the cessation provisions in the first place. Any impact that cessation
may have on the child, and the child's best interests, will be considered by
the Minister as part of the public interest component relating to exemption.[99]
1.210
No analysis or evidence is provided to support the statement that the
limitation on the right to be heard is necessary and proportionate. As set out
above at [1.205], the committee's usual expectation where a measure may limit a
human right is that the accompanying statement of compatibility provide an
analysis of how the limitation is justifiable under international human rights
law. This requires a reasoned and evidence-based explanation of how the measure
supports a legitimate objective, how the measure is rationally connected to
that objective and how the measure is reasonable and proportionate for the
achievement of that objective.
Discretionary power to remove the citizenship of a child whose parent has
automatically lost their citizenship
1.211
Item 6 of the bill would amend the Citizenship Act to provide that,
where a person ceases to be an Australian citizen at a particular time under
sections 33, 33AA, 34, 34A, 35, or 35A and the person is a responsible parent
of a child under the age of 18, the minister may revoke the child's
citizenship. There are exceptions for where this would leave a child stateless
or where the child has an alternative parent.
1.212
Very serious consequences flow from loss of Australian citizenship. The
enjoyment of many human rights is tied to citizenship under Australian law. No
separate analysis is provided of the human rights engaged and limited by this
measure. This measure needs to be separately justified and all limitations on
human rights need to have a legitimate objective, be rationally connected to
that objective and proportionate.
Multiple Rights
1.213
The measure engages and may limit the following human rights and human rights
standards:
-
right to freedom of movement;[100]
-
right to a private life;[101]
-
protection of the family;[102]
-
right to take part in public affairs;[103]
-
right to liberty;[104]
-
obligations of non-refoulement;[105]
-
right to equality and non-discrimination;[106]
-
right to a fair hearing and criminal process rights;[107]
-
prohibition against retrospective criminal laws;[108]
-
prohibition against double punishment;[109]
-
rights of children;[110]
-
right to work;[111]
-
right to social security;[112]
-
right to an adequate standard of living;[113]
-
right to health;[114]
and
-
right to education.[115]
Compatibility of the measure with
the multiple rights
1.214
The measure engages and limits multiple rights in a similar manner to
the other provisions in the bill which provide for the loss of citizenship, as
set out in Part 1 and Part 2 above. The statement of compatibility does not
provide a separate and detailed analysis of how this measure is nevertheless
justified.
1.215
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, as set out above
at paragraph [1.205].
1.216 The committee's assessment of the discretionary ministerial power to
revoke the citizenship of a child following a parent's automatic cessation of
citizenship under the bill against Australia's obligations under the
International Covenant on Civil and Political Rights raises questions as to
whether the limitation on rights is justifiable.
1.217 As set out above, the discretionary ministerial power to revoke the
citizenship of a child engages and limits multiple rights. 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 Immigration and Border Protection 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, advice is sought
as to how decisions will be made by the minister or officials to remove a
child's citizenship and whether this is the least rights restrictive approach.
1.218 The committee also seeks the minister's advice on these questions in
relation to the specific rights contained in articles 3, 7, 8 and 12 of the
Convention on the Rights of the Child (best interests of the child, the right
to a nationality and the right of the child to be heard), as set out below.
Obligation to consider the best
interests of the child
1.219
The obligation is discussed at paragraphs [1.189] to [1.190] above.
Compatibility of the measure with
the obligation to consider the best interests of the child
1.220
The statement of compatibility acknowledges that the measure engages the
obligation to consider the best interests of the child.
1.221
The statement of compatibility explains that:
Any exercise by the Minister of
his discretionary power to revoke the Australian Citizenship of a child in
circumstances where the Australian citizenship of the parents has ceased under
the new provisions must take into consideration all relevant circumstances,
including the best interests of the child.[116]
1.222
However, this statement appears to misapprehend the nature of the
obligation to consider the best interests of the child. It is an obligation to
consider the best interests of the child as a primary consideration, not just
one amongst many considerations of equal weight. Moreover, the ministerial power
to cancel a child's citizenship is entirely discretionary and the minister is
under no statutory obligation to consider the best interests of the child.
1.223
Accordingly, the measure limits the obligation to consider the best
interests of the child. 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, as set
out above at paragraph [1.205].
The right to nationality
1.224
This right is described above at paragraph [1.202].
Compatibility of the measure
with the right to nationality
1.225
The statement of compatibility does not consider whether the measure
engages and limits the right to a nationality, particularly, the right to
preserve an existing nationality and identity as specifically provided for by
article 8 of the CRC. The measure engages and limits this right as a child may
lose their Australian citizenship where their nationality and identity is
Australian notwithstanding that they have dual nationality. For example, they
may have spent their entire life in Australia.
1.226
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 as set out above
at paragraph [1.205].
Right of the child to be heard in
judicial and administrative proceedings
1.227
The right is described above at paragraph [1.206] to [1.207] above.
Compatibility of the measure with
the right of the child to be heard
1.20 The statement of compatibility acknowledges that the
proposed measure engages and limits the right of the child to be heard. The
statement of compatibility explains:
When considering whether to
revoke a child's citizenship under section 36 in light of the new cessation
provisions, the Minister must accord natural justice. Natural justice may involve inviting the child or parent of
the child to make representations to the Minister about excusing the person. If
the child or parent makes such representations to the Minister, the Minister
may, having regard to these representations and any other matters the Minister
considers relevant, decide not to revoke the Australian citizenship of the
child. These provisions give the child, the child's parent or the child's
representative the opportunity to be heard, thereby satisfying Article 12. The
government considers that this strikes the appropriate balance between giving a
person a fair opportunity to address any issues raised in the information
before the Minister while ensuring the effectiveness of cessation as a measure
to protect the public interest.[117]
1.228
Importantly, the statement of compatibility notes that the minister may
rather than must give a child the right to make representations. There
is no statutory obligation requiring the minister to specifically allow for a
child to be heard prior to a decision to revoke their citizenship. A
discretionary, non-compellable ministerial power is an insufficient safeguard
to ensure that a limitation on a right is justified.
1.229
In addition, the statement of compatibility outlines a process of
seeking to balance the right of the child with the effectiveness of the
measure. This misapprehends the nature of Australia's obligations under the
CRC. In order for any measure that limits the right of a child to be heard to
be compatible with international law, it must pursue a legitimate objective, be
rationally connected to that legitimate objective and impose a proportionate
limitation.
1.230
The statement of compatibility needs to provide a reasoned and evidence‑based
explanation of how the measure supports a legitimate objective for the purposes
of international human rights law as set out above at paragraph [1.205].
Fairer Paid Parental Leave Bill 2015
Portfolio:
Social Services
Introduced: House
of Representatives, 25 June 2015
Purpose
1.231
The Fairer Paid Parental Leave Bill 2015 (the bill) seeks to amend the Paid
Parental Leave Act 2010 (PPL Act) to:
-
provide that from 1 July 2016 primary carers of newborn children
will no longer receive both employer-provided primary carer leave payments
(such as maternity leave pay) and the full amount of parental leave pay under
the government-provided paid parental leave (PPL) scheme; and
-
remove the requirement for employers to provide paid parental
leave to eligible employees, unless an employer chooses to manage the payment
to employees and the employees agree for the employer to pay them.
1.232
Measures raising human rights concerns or issues are set out below.
Background
1.233
The bill reintroduces a measure previously introduced in the Paid
Parental Leave Amendment Bill 2014 (PPLA bill), which would remove the
requirement for employers to provide paid parental leave to eligible employees.
The PPLA bill was introduced into the House of Representatives on 19 March 2014
and is currently before the Senate. The committee considered the PPLA bill in
its Fifth Report of the 44th Parliament[118]
and requested further information from the Minister for Small Business as to
the compatibility of the measures with the right to social security, rights at
work and the right to equality and non-discrimination. The committee then
considered the minister's response in its Eighth Report of the 44th
Parliament.[119]
Schedule 1 – Adjustment to primary carer pay
1.234
Schedule 1 to the bill would amend the PPL Act to provide that from
1 July 2016 primary carers of newborn children will no longer receive
both employer‑provided primary carer leave payments (such as maternity
leave pay) and the full amount of parental leave pay under the
government-provided PPL scheme.
1.235
Primary carers who are entitled to receive employer-provided parental
leave payments will not be eligible to receive payments under the government's
PPL scheme, unless their employer-provided payments are valued at less than the
total amount of payments under the government's PPL scheme.
1.236
The committee considers the reductions in PPL payments for primary
carers who receive employer-funded primary carer leave payments engage and may
limit the right to social security, rights
at work and the right to equality and non‑discrimination.
Right to
social security
1.237
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.
1.238
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).
1.239
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.
1.240
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
1.241
Under the PPL Act, the initial primary carers of children currently have
access to up to 18 weeks of parental leave pay at the national minimum wage in
order to stay home from work and look after their baby. Some primary carers are
also able to receive additional employer-funded payments where offered by their
employer under registered agreements, employment contracts and workplace
policies. Individuals who receive employer-funded payments currently do not
lose their entitlement to PPL payments.
1.242
The amendments in Schedule 1 to the bill would revise these provisions
so that primary carers can receive only one form of parental leave pay (either
government or employer-funded). As primary carers who receive employer-funded
parental leave pay will have their government-funded entitlements reduced or
removed under the bill, the amendments therefore engage and may limit the right
to social security.
1.243
As noted above at [1.239], Australia has obligations not to
unjustifiably take any backwards steps (retrogressive measures) that might
affect the rights to social security.
1.244
The statement of compatibility explains that the right to social
security is engaged by the measure. There is no explicit acknowledgement that
the right is limited as a result of the reduced payments for some new parents.
1.245
The statement of compatibility identifies the purpose of the amendments
as ensuring that the PPL scheme:
continues to support mothers who
would not otherwise have access to generous paid maternity leave provisions,
while enabling Government resources to be refocused on other complementary
measures to support working parents, including increased childcare support.[120]
1.246
The committee has consistently recognised that under international human
rights law budgetary constraints are capable of providing a legitimate
objective for the purpose of justifying reductions in government support that
impact on economic, social and cultural rights.[121]
However, in order to be accepted as a legitimate objective, reasoning and
evidence is needed to support the stated objective. In particular, more
information is required to explain why it is necessary to reduce the current
level of social security available (for example, a brief explanation of the fiscal
difficulties facing the government) and where it is intended that the savings
will be directed to.
1.247
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,[122]
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'.[123]
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.
1.248 The committee's assessment of the reduction to paid parental leave against
article 9 of the International Covenant on Economic, Social and Cultural Rights
(right to social security) raises questions as to whether the amendments are
justifiable.
1.249 As set out above, the reduction of access to paid parental leave engages
and limits the right to social security. 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 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.
Right to
work and the right to maternity leave
1.250
The right to work and rights in work are protected by articles 6(1), 7
and 8(1)(a) of the ICESCR.[124]
1.251
The UN Committee on Economic, Social and Cultural Rights has stated that
the obligations of state parties to the ICESCR in relation to the right to work
include the obligation to ensure individuals their right to freely chosen or
accepted work, including the right not to be deprived of work unfairly,
allowing them to live in dignity. The right to work is understood as the right
to decent work providing an income that allows the worker to support themselves
and their family, and which provides safe and healthy conditions of work.
1.252
The right to work may be subject only to such limitations as are
determined by law and compatible with the nature of the right, and solely for
the purpose of promoting the general welfare in a democratic society.
1.253
The right to maternity leave is protected by article 10(2) of the ICESCR
and article 11(2)(b) of the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW). Further provisions are contained within
articles 3 and 9 of the ICESCR and articles 4(2) and 5(b) of the CEDAW.
1.254
The UN Committee on Economic, Social and Cultural Rights has stated that
the obligations of state parties to the ICESCR in relation to the right to
maternity leave include the obligation to guarantee 'adequate maternity leave
for women, paternity leave for men, and parental leave for both men and women'.[125]
1.255
In addition, the CEDAW requires state parties to implement measures to
eliminate discrimination against women in the field of employment. Particular
obligations include:
To introduce maternity leave with
pay or with comparable social benefits without loss of former employment,
seniority or social allowances.[126]
1.256
Accordingly, the CEDAW recognises that adequate provisions for maternity
leave are a critical component of the right to work.
Compatibility of the measure with
the right to work
1.257
The bill reduces the amount of maternity leave pay that many primary
carers are currently entitled to under law.
1.258
The statement of compatibility for the bill states that Schedule 1 is
likely to engage rights at work, including the right to maternity leave as
protected by article 11(2)(b) of the CEDAW and article 10(2) of the ICESCR.
However, the statement of compatibility does not address the limitation of this
right, or provide any justification for the limitation. Instead, it states that
'eligible mothers may use their entitlements to other types of leave, such as
annual leave or long service leave, before, after or at the same time as
Parental Leave Pay.'[127]
The availability of other leave or payments is not directly relevant to the
question as to whether the reduction in primary carer pay for some new parents
is justified under international human rights law.
1.259
As noted above at [1.247], 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. Additionally, it must be shown that a limitation is rationally
connected to, and a proportionate way to achieve, its legitimate objective in
order to be justifiable in international human rights law. The statement of
compatibility does not explain whether the measure is proportionate, in
particular given the extent of the interference with the obligation on the
state to provide for paid maternity leave for a reasonable period of time.
1.260 The committee's assessment of the reduction of access to paid
parental leave against article 11 of the Convention on the Elimination of All
Forms of Discrimination against Women and article 10(2) of the International
Covenant on Economic, Social and Cultural Rights (rights at work and the right
to maternity leave) raises questions as to whether the reduction of maternity
leave entitlements is justifiable.
1.261 As set out above, the reduction of access to paid parental leave engages
and limits rights at work and the right to maternity leave. 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 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.
Right to
equality and non-discrimination
1.262
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).
1.263
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.
1.264
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or religion),[128]
which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.[129]
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.[130]
1.265
Articles 2, 3, 4 and 15 of the CEDAW further describes the content of
these rights, describing the specific elements that state parties are required
to take into account to ensure the rights to equality for women.
Compatibility of the measure with
the right to equality and non-discrimination
1.266
Where a measure impacts on particular groups disproportionately, it
establishes prima facie that there may be indirect discrimination. As
women are the primary recipients of the paid parental leave scheme, reductions
to this scheme under the bill will disproportionately impact upon this group.
1.267
The statement of compatibility states that the measures may engage the
right to equality and non-discrimination, and are likely to promote the right
for some groups of working parents.[131]
The statement of compatibility does not, however, address the limitation of
this right in terms of its potential to indirectly discriminate against women,
or provide any justification for the limitation.
1.268
If a provision has a disproportionate negative effect or is indirectly
discriminatory it may nevertheless be justified if the measure 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.
1.269 The committee's assessment of the adjustment to primary carer pay
against articles 2, 16 and 26 of the International Covenant on Civil and
Political Rights (right to equality and non-discrimination) raises questions as
to whether the disproportionate impact upon women is justifiable.
1.270 As set out above, the adjustment to primary carer pay engages and
limits the right to equality and non-discrimination (indirect discrimination).
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 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.
Schedule 2 – Employer opt-in
1.271
Schedule 2 to the bill would amend the PPL Act to remove the requirement
for employers to provide and manage government-funded parental leave pay to
eligible employees. These employees would instead be paid directly by the Department
of Human Services, unless an employer 'opts in' to provide parental leave pay
to its employees and is agreed upon by the relevant employee. This amendment
would commence from 1 April 2016.
1.272
The committee considers that the employer 'opt in' engages and
limits the rights to social security, the
right to just and favourable conditions of work and the right to equality and
non-discrimination.
Right to
social security
1.273
The right to social security is protected by article 9 of the ICESCR.
Australia is required to satisfy certain minimum aspects of this right; see [1.237]
to [1.240] above.
Right to an adequate standard of living
1.274
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.
1.275
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.
Right to
work
1.276
The right to work is protected by articles 6(1), 7 and 8(1)(a) of the
ICESCR, and article 11 of the CEDAW; see [1.250] to [1.256] above.
Right to
equality and non-discrimination
1.277
The right to equality and non-discrimination is protected by articles 2,
16 and 26 of the ICCPR, and articles 2, 3, 4 and 15 of the CEDAW; see [1.262]
to [1.265] above.
Compatibility of the measure with
the right to social security and an adequate standard of living, the right to
work and the right to equality and non-discrimination
1.278
The statement of compatibility for the bill states that no human rights
are engaged by the amendments as they are limited to changes in administrative
arrangements in the ongoing implementation of the PPL scheme.[132]
1.279
However, the regulation impact statement for the bill states that:
...there may be an impact on the
after tax-income of employees with salary sacrifice arrangements in place.
Where their employer is administering PLP payments, salary sacrificing
arrangements are able to continue and so the employee’s tax liability would
continue to be calculated on a lower salary. However, as DHS does not offer
salary sacrifice deduction functionality, an employee’s tax liability could
increase if the mandatory employer role is removed and their employer does not
opt back in to be the PPL paymaster... While this impact is not a compliance
cost, it may have an impact on the after-tax income a person may receive, dependent
on an employee’s income and the level of salary sacrificed under the
arrangement.[133]
1.280
The committee has previously considered these measures as part of its
consideration of the PPLA Bill 2014. In its previous analysis, the committee
requested further information from the Minister for Small Business as to the
compatibility of the measures with the right to social security, right to an
adequate standard of living, right to just and favourable conditions at work,
and right to equality and non-discrimination. The committee concluded its
consideration of these matters as being compatible with Australia's
international human rights obligations on the basis of the further information
provided by the minister.[134]
None of this further information has been included in the statement of
compatibility for this bill.
1.281 The committee's usual expectation is that where additional
information has been provided to establish that a measure is compatible with human
rights, this information should be included in future statements of
compatibility for measures of a similar type.
Migration Amendment (Regional Processing Arrangements) Bill 2015
Portfolio:
Immigration and Border Protection
Introduced: House
of Representatives, 24 June 2015
Purpose
1.282
The Migration Amendment (Regional Processing Arrangements) Bill 2015 (the
bill) seeks to amend the Migration Act 1958 to empower the Commonwealth to:
-
take, or cause to be taken, any action relating to an arrangement
in place with a regional processing country and to take action in relation to
regional processing functions;
-
make, or cause to be made, payments relating to the arrangement
or regional processing functions of a regional processing country; and
-
do anything else incidental or conducive to the taking of such
action or the making of such payments.
1.283
The bill provides that the amendments made by the bill commence
retrospectively, namely on 18 August 2012.
1.284
Measures raising human rights concerns or issues are set out below.
Background
1.285
The bill was introduced into the House of Representatives on 24 June
2015 and passed the same day. It was introduced the following day into the
Senate and passed the Senate that day, finally passing both Houses on 25 June
2015 and achieving Royal Assent on 30 June 2015.
Power to take action in a regional processing country
1.286
The bill empowers the Commonwealth to take broad unfettered action in a
regional processing country if that action relates to the 'arrangement' or the
'regional processing functions' of a regional processing country.
1.287
Action is defined as including exercising restraint over the liberty of
a person and taking action in a regional processing country or another country
– 'action' in these countries is undefined.
1.288
An 'arrangement' is defined as any arrangement, agreement,
understanding, promise or undertaking, whether or not it is legally binding. A
'regional processing function' includes the implementation of any law or policy
or the taking of any action by the regional processing country—thereby
empowering the Commonwealth to do anything the regional processing country
could do in connection with their role as a processing country.
1.289
The committee considers the bill engages and limits multiple human
rights, as set out below.
Multiple
human rights
1.290
The committee, in its Ninth Report of 2013 (previous report),
examined the human rights implications of the Migration Regional Processing
package of legislation. This legislation re-established offshore processing for
asylum seekers who arrived by boat in Australia on or after 13 August 2012.[135]
1.291
In the previous report the committee considered that the regional
processing regime engaged and limited a number of rights, including:
-
the prohibition against arbitrary detention;[136]
-
the right to humane treatment in detention;[137]
-
the right to health;[138]
-
the rights of the child;[139]
and
-
the prohibition against degrading treatment.[140]
1.292
In its previous report the committee considered the nature and
territorial scope of Australia's human rights obligations.[141]
It noted that it is well accepted in international law that the human rights
obligations of a state extend to persons who are outside the territory of the state
but 'under the effective control' of the authorities of the state.
1.293
After considering the evidence of Australia's involvement in the
regional processing of asylum seekers in Nauru or on Manus Island, the
committee noted that Australia's involvement in the arrangements relating to
the detention, upkeep and provision of services to those transferred to Nauru
and Manus Island was significant. The committee concluded that 'the evidence
demonstrates that Australia could be viewed as exercising 'effective control'
of the arrangements relating to the treatment of persons transferred to Manus
Island or Nauru.'[142]
Compatibility of the measures with
multiple human rights
1.294
The statement of compatibility for the bill states that the bill does
not engage any human rights 'because the Government's position is that the
Regional Processing Centres are managed and administered by the governments of
the countries in which they are located, under the law of those countries.'[143]
The statement of compatibility goes on to state that while the government
recognises that there may be circumstances in which the rights set out in human
rights instruments apply extraterritorially, 'Australia does not exercise the
degree of control necessary in regional processing centres to enliven
Australia's international obligations'.[144]
1.295
As set out above at paragraphs [1.292] to [1.293], the committee has
previously concluded that on all available evidence, Australia could be viewed
as exercising 'effective control' of the arrangements relating to the treatment
of persons transferred to Manus Island or Nauru. The committee notes that the
bill reinforces this finding as it empowers the Commonwealth to take any
action, including restraining a person, in relation to regional processing
functions. As described above at paragraphs [1.286] to [1.288], this gives
extremely broad powers to the Commonwealth in relation to the processing of
asylum seekers in external countries. Read in conjunction with the findings of
the committee in its previous report, the bill confirms the committee's
previous conclusion that Australia, in exercising effective control, owes human
rights obligations to those asylum seekers in Nauru and Manus Island.
1.296 As the bill empowers the Commonwealth to take broad action in
regional processing countries, the bill, as with the previous package of
legislation relating to regional processing, engages and limits multiple
rights. The committee reiterates the concerns set out in its previous report[145]
in relation to the regional processing regime, which applies equally to this
bill, namely:
-
that the regional processing regime as currently implemented
carries a significant risk of being incompatible with a range of human rights.
To the extent that some of those rights may be limited, the committee considers
that the reasonableness and proportionality of those limitations have not been
clearly demonstrated. Of particular concern is:
-
the absence of legally-binding requirements relating to
minimum conditions in regional processing facilities. While detention necessarily
involves constraints on the full enjoyment of rights by detainees, the
government has not demonstrated that the conditions on Nauru or Manus Island
are consistent with the provisions of the International Covenant on Civil and
Political Rights (ICCPR), the International Covenant on Economic, Social and
Cultural Rights (ICESCR), the Convention on the Rights of the Child and the
Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and
Punishment; and
-
the cumulative effect of the arrangements, which is likely to
have a significant impact on the physical and mental health of asylum seekers,
contrary to the right to health in article 12 of the ICESCR and the prohibition
against degrading treatment in article 7 of the ICCPR.
1.297 Noting that the bill has already passed both Houses of Parliament,
the committee has concluded its examination of the bill.
Social Services Legislation Amendment (Defined Benefit Income Streams) Bill
2015
Portfolio: Social Services
Introduced: House of Representatives, 23 June 2015
Purpose
1.298
The Social Services Legislation Amendment (Defined Benefit Income
Streams) Bill 2015 (the bill) seeks to amend the Social Security Act 1991
to provide that the deductible amount for defined benefit income streams,
excluding military defined benefits schemes, is capped at a maximum 10 per cent
of the gross payments to an individual for the income year.
1.299
Measures raising human rights concerns or issues are set out below.
Alterations to the income test for defined benefit income streams
1.300
Under the bill, individuals who receive defined benefit income from
their superannuation fund will have a greater proportion of that income
included in the income test for the pension. As a result, a number of
individuals who receive defined benefit income from their superannuation fund
will either have their pension amount reduced or removed all together.
1.301
Accordingly, the bill engages and limits the right to social security.
Right to social
security
1.302
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.
1.303
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).
1.304
Under article 2(1) of 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.
1.305
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
1.306
The statement of compatibility states that the right to social security
is engaged. However it also states that:
The Bill has no effect on the
right to social security.[146]
1.307
The statement of compatibility also explains that:
[The bill] gives a fairer
assessment of an individual's personal contributions to a defined benefit
income streams.[147]
1.308
The bill will reduce the pension entitlement of certain individuals and
accordingly limits the right to social security. As the statement of
compatibility claims the measure doesn't limit the right to social security,
the statement does not provide any information as to the legitimate objective
of the measures, how the measures are rationally connected to that objective
and how the measures are otherwise proportionate.
1.309
The bill will produce savings of $465.5 million over four years.
However, no information is provided in the explanatory memorandum (EM) or
statement of compatibility as to how many individuals will be affected by the
measure or any information as to the likely impact on those individuals,
including their capacity to meet their cost of living following the
implementation of the bill. Accordingly, it is not possible to assess the
compatibility of the measure with the right to social security.
1.310
The statement of compatibility could have advanced an argument that,
while the bill does limit the right to social security, the proposed measures
are nevertheless justified as they are reasonable, necessary and proportionate
to achieve a legitimate aim.
1.311
The committee notes that budgetary constraints have been recognised as being
capable of providing a legitimate objective for the purpose of justifying
reductions in government support that impact on economic, social and cultural
rights.
1.312
Further, in justifying the proposed measures as proportionate to a
legitimate aim, the statement of compatibility could have advanced an argument
about the capacity of individuals receiving a defined benefit income from their
superannuation fund to meet their costs of living notwithstanding their reduced
entitlement to social security.
1.313 The bill will reduce the aged pension entitlement of certain
individuals and accordingly limits the right to social security. The statement
of compatibility for the bill states that the bill engages but does not limit
the right to social security. As a result, the statement of compatibility does
not justify the limitation on the right to social security. Noting that the
bill has already passed both Houses of Parliament, the committee has concluded
its examination of the bill.
Social Security (Administration) (Income Management—Crediting of Accounts)
Rules 2015 [F2015L00781]
Portfolio:
Social Services
Authorising
legislation: Social Security (Administration) Act 1999
Last day to
disallow: 20 August 2015
Purpose
1.314
The Social Security (Administration) (Income Management—Crediting of
Accounts) Rules 2015 (the rules) set out the particular circumstances in which
the income management record and a person's income management account can be
credited with an amount that is ascertained in accordance with the rules. These
circumstances all relate to debits that are made from a person's record and
account for the purpose of giving a BasicsCard to a person or increasing the
monetary value stored on a BasicsCard.
1.315
Measures raising human rights concerns or issues are set out below.
Background
1.316
The committee has previously conducted an inquiry into the Stronger
Futures in the Northern Territory Bill and related legislation,[148]
including in relation to income management, and is currently undertaking a new
examination into the legislation.
Income management
1.317
The income management regime engages multiple human rights, in
particular the right to a private life, the right to equality and
non-discrimination, the right to social security and the right to an adequate
standard of living.[149]
1.318
The rules particularly engage the right to privacy, in that it sets out
the specific circumstances in which a person can access their social security benefits.
For example, a person must apply to the Secretary of the Department of Human
Services if they wish to reduce the amount of money stored on their BasicsCard
and have the money provided to them directly in order to address a priority
need. The affected person needs to make an application to the Secretary and
explain the priority need for which they require direct access to their social
security benefits, thereby engaging and limiting the person's right to a
private life.
1.319
The statement of compatibility does not consider the right to privacy
and so provides no justification as to whether the rules are compatible with this
right.
1.320 The committee is currently undertaking a broader inquiry: Review
of Stronger Futures in the Northern Territory Act 2012 and related legislation
and intends to report on this in late 2015. The committee will defer its
consideration of this instrument as part of its broader inquiry.
Federal Courts Legislation Amendment (Fees) Regulation 2015 [F2015L00780]
Portfolio:
Attorney-General
Authorising
legislation: Federal Court of Australia Act 1977; Family Law Act 1975;
and Federal Circuit Court of Australia Act 1999
Last day to
disallow: 20 August 2015
Purpose
1.321
The Federal Courts Legislation Amendment (Fees) Regulation 2015 (the
regulation) makes amendments to the Federal Court and Federal Circuit Court
Regulation 2012 to:
-
exclude 'public authorities' (such as government agencies) from
having to pay fees applicable to a 'corporation' when filing all matters in the
Federal Court of Australia and the Federal Circuit Court of Australia (the
federal courts), other than bankruptcy matters;
-
remove the 'publicly listed company' fee category, and instead
provide that such companies pay the lower fees applicable to a 'corporation'
when filing all matters in the federal courts, other than bankruptcy matters;
-
increase all fee categories (as amended above) by 10 per cent for
the federal courts, except for those fees not subject to a biennial fee
increase; and
-
exempt certain procedural international arbitration matters from
the general filing fee.
1.322
Schedule 2 of the regulation also sought to amend the Family Law (Fees)
Regulation 2012 to:
-
increase the fee for certain divorce applications, consent orders
and issuing subpoenas by a prescribed amount;
-
increase all other existing family law fee categories (by an
average of 10 per cent) except for the reduced divorce fee in the Federal
Circuit Court and divorce fees in the Family Court of Australia, and
-
establish a new fee category for the filing of amended
application.
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Measures raising human rights concerns or issues are set out below.
Background
1.324
On 25 June 2015, the Senate disallowed Schedule 2 of the regulation.
Accordingly, this analysis deals only with Schedule 1 of the regulation which
continues in force.[150]
Increased fees for federal court proceedings
1.325
Schedule 1 of the regulation increased the costs in all fee categories
by 10 per cent for all proceedings in the federal courts. This includes the
costs of commencing an application or appeal and the costs for the hearing of
the application or appeal.
1.326
The committee considers that this engages and may limit the right to a
fair hearing (access to justice).
Right to a fair hearing
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The right to a 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 and to military disciplinary hearings. 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. Circumstances which engage the right to a fair
trial and fair hearing may also engage other rights in relation to legal
proceedings contained in Article 14, such as the presumption of innocence and
minimum guarantees in criminal proceedings.
1.328
The right also includes the right to have equal access to the courts,
regardless of citizenship or other status. This requires that no one is to be
barred from accessing courts or tribunals (although there are limited
exceptions if these are based on objective and reasonable grounds, for example
vexatious litigants). To be real and effective this may require access to legal
aid and the regulation of fees or costs that could indiscriminately prevent
access to justice.
Compatibility of the measure with
the right to a fair hearing
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The statement of compatibility states that the regulation does not
engage any of the applicable rights or freedoms and does not raise any human
rights issues.
1.330
However, the right to a fair hearing includes a right to access to
justice. A substantial increase in the cost of making an application to the
federal courts, and in conducting a case before the courts, engages the right
to a fair hearing, as this right includes a right to access to justice. The UN
Human Rights Committee has said that the imposition of fees on the parties to
proceedings that would de facto prevent their access to justice might give rise
to issues under the right to a fair hearing.[151]
1.331
Whether the right is limited will depend on whether the increase in fees
to access the federal courts would indiscriminately prevent access to justice.
No information is provided in the statement of compatibility as to whether
there is any ability for an applicant to seek to have the fees waived if the
fees would effectively prevent them from accessing the federal courts.
1.332 The committee's assessment of the 10 per cent increase for all
federal court fees against article 14 of the International Covenant on Civil
and Political Rights (right to a fair hearing) raises questions as to whether
the increase in court fees is a limitation on the right to access to justice.
1.333 As set out above, the increase in fees engages and may limit the
right to a fair hearing. The statement of compatibility does not explore
whether the measure limits the right to a fair hearing and does not justify any
limitation for the purposes of international human rights law. The committee
therefore seeks the advice of the Attorney-General as to whether the measure is
likely to limit the right to a fair hearing, and if so:
-
whether the proposed changes are aimed at achieving a
legitimate objective;
-
whether there is a rational connection between any limitation
and that objective; and
-
whether any limitation is a reasonable and proportionate
measure for the achievement of that objective.
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