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 15 to 18 June 2015, legislative instruments received from 15 to
28 May 2015, and legislation previously deferred by the committee.
1.2
The report also includes the committee's consideration of responses arising
from previous reports.
1.3
The committee generally takes an exceptions based approach to its
examination of legislation. The committee therefore comments on legislation
where it considers the legislation raises human rights concerns, having regard
to the information provided by the legislation proponent in the explanatory
memorandum (EM) and statement of compatibility.
1.4
In such cases, the committee usually seeks further information from the
proponent of the legislation. In other cases, the committee may draw matters to
the attention of the relevant legislation proponent on an advice-only basis.
Such matters do not generally require a formal response from the legislation
proponent.
1.5
This chapter includes the committee's examination of new legislation,
and continuing matters in relation to which the committee has received a response
to matters raised in previous reports.
Bills not raising human rights concerns
1.6
The committee has examined the following 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 bill does not require
additional comment as it either does not engage human rights or engages rights
(but does not promote or limit rights):
-
Gene Technology Amendment Bill 2015.
1.8
The committee considers that the following bill does not require
additional comment as it promotes human rights or contains justifiable
limitations on human rights (and may contain both justifiable limitations on
rights and promotion of human rights):
-
Australian Radiation Protection and Nuclear Safety Amendment 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 Migration Amendment
(Protection and Other Measures) Regulation 2015 [F2015L00542].
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]
Criminal Code Amendment (Animal
Protection) Bill 2015
Sponsor: Senator
Chris Back
Introduced:
Senate, 29 October 2014; passed both Houses 2 December 2014
Purpose
1.14
The Criminal Code Amendment (Animal Protection) Bill 2015 (the
bill) proposes to amend the Criminal Code Act 1995 to
insert new offences in relation to failure to report a visual recording of
malicious cruelty to domestic animals, and interference with the conduct of
lawful animal enterprises.
1.15
Measures raising human rights concerns or issues are set out below.
Requirement to report malicious cruelty to animals
1.16
The bill would introduce an offence provision to provide that a person
recording what they believe to be malicious cruelty to an animal or animals
commits an offence if they fail to report the event to the relevant authorities
within one business day of the event occurring, and to provide all recorded
material within five business days.
1.17
The committee considers that the bill engages and limits the right not
to incriminate oneself.
Right to a fair trial and fair
hearing rights
1.18
The right to a fair trial and fair hearing is protected by article 14 of
the International Covenant on Civil and Political Rights (ICCPR). The right
applies to both criminal and civil proceedings, to cases before both courts and
tribunals. The right is concerned with procedural fairness, and encompasses
notions of equality in proceedings, the right to a public hearing and the requirement
that hearings are conducted by an independent and impartial body.
1.19
Specific guarantees of the right to a fair trial in the determination of
a criminal charge guaranteed by article 14(1) are set out in article 14(2) to
(7). These include the presumption of innocence (article 14(2)) and minimum
guarantees in criminal proceedings, such as the right to not to incriminate
oneself (article 14(3)(g)) and a guarantee against retrospective criminal laws
(article 15(1)).
Compatibility of the measures with
the right to a fair trial and fair hearing rights
1.20
The committee considers that the bill engages and limits the right not
to incriminate oneself as providing a recording of cruelty to animals to the
relevant authorities may provide evidence of the individual undertaking the
recording committing an offence, such as criminal trespass.
1.21
However, the statement of compatibility does not identify the measure as
limiting the right to protection from self-incrimination in this way, and
therefore provides no justification for the limitation.
1.22
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,[4]
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'.[5] 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.
1.23
The committee's assessment of the requirement to report malicious
cruelty to animals against article 14 of the International Covenant on Civil
and Political Rights (right not to incriminate oneself) raises questions as to
whether the requirement to potentially incriminate oneself is justifiable.
1.24
As set out above, the requirement to report malicious cruelty to
animals engages and limits the right not to incriminate oneself.
The statement of compatibility does not provide an assessment as to the
compatibility of the measure with this right. The committee therefore seeks the
advice of the legislation proponent as to whether the limitation on the right
to freedom from self-incrimination is compatible with the right to a fair
trial, and particularly:
-
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.
Offence provision for conduct that destroys or damages property
1.25
The bill provides that a person commits an offence if they engage in
conduct that destroys or damages property used in carrying on an animal
enterprise, or belonging to a person who carries on, or is associated with, a
person who carries on an animal enterprise. A person who causes economic damage
exceeding $10 000 is liable to a maximum five year prison term.
1.26
The committee considers that this offence provision engages the
prohibition against arbitrary detention.
Right to liberty (prohibition against
arbitrary detention)
1.27
Article 9 of the ICCPR protects the right to liberty, understood as the
procedural guarantee not to be arbitrarily and unlawfully deprived of liberty.
The 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.
1.28
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.
Compatibility of the measures with
the right to liberty
1.29
The committee considers that the proposed offence provision engages and
may limit the prohibition against arbitrary detention.
1.30
In particular, the committee notes that the Guide to Framing
Commonwealth Offences states that 'a penalty should be consistent with
penalties for existing offences of a similar kind or of a similar seriousness'.[6]
As it not clear that a prison term of five years for economic damage in excess
of $10 000 is comparable to similar types of offences, the committee considers
that the penalty may be so excessive as to be unjust (and therefore could
amount to arbitrary detention under article 9 of the ICCPR).
1.31
However, the statement of compatibility does not identify the measure as
limiting the right to liberty, and therefore provides no justification for the
limitation.
1.32
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,[7]
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'.[8] 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.
1.33
The committee notes that, as other legislation already includes
provisions that make property damage a criminal offence, it is important that
the human rights assessment of the bill address the question of whether the
proposed offence provisions may be regarded as necessary in pursuit of a
legitimate objective for the purposes of international human rights law.
1.34
The committee's assessment of the offence provision against article 9
of the International Covenant on Civil and Political Rights (right not to be
arbitrarily detained) raises questions as to whether the offence may be excessive
or disproportionate having regard to the breadth of the provision.
1.35
As set out above, the offence provision for conduct that destroys or
damages property engages and limits the right not to be arbitrarily detained. The
statement of compatibility does not provide an assessment as to the
compatibility of the measure with this right. The committee therefore seeks the
advice of the legislation proponent as to whether the limitations on the right
to liberty, and particularly:
-
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.
Foreign Death Penalty Offences
(Preventing Information Disclosure) Bill 2015
Sponsor: Mr
Clive Palmer MP
Introduced: House
of Representatives, 1 June 2015
Purpose
1.36
The Foreign Death Penalty Offences (Preventing Information
Disclosure) Bill 2015 (the bill) seeks to create an offence for public
officials and former public officials who recklessly disclose information
resulting in a person being tried, investigated, prosecuted or punished for an
offence that carries the death penalty in a foreign country.
1.37
The bill provides for an exception from the offence if the
foreign death penalty offence is constituted by conduct that involves a
terrorist act or 'act of violence that causes death or endangers life'.
1.38
The bill proposes to introduce a mandatory minimum
one-year term of imprisonment for the offence, and a maximum term of 15 years
imprisonment.
1.39
Measures raising human rights concerns or issues are set out below.
Exception if death penalty to be imposed in relation to certain serious
crimes
1.40
Proposed section 7 makes it an offence for a public official to
indirectly or directly disclose information to another person, and the official
is reckless as to whether the disclosure will assist in the investigation,
prosecution or punishment of a person for an offence for which the death
penalty may be applied in a foreign country.
1.41
Under proposed subsection 7(2) of the bill, this offence will not apply
if the Attorney-General certifies that the disclosure is necessary to prevent
or assist in the investigation or prosecution of a person suspected of having
engaged in a terrorist act or an act of violence causing a person's death or
endangering life.
Right to life
1.42
The right to life is protected by article 6(1) of the International
Covenant on Civil and Political Rights (ICCPR) and article 1 of the Second
Optional Protocol to the ICCPR. The right to life has three core elements:
-
it prohibits the state from arbitrarily killing a person;
-
it imposes an obligation on the state to protect people from
being killed by others or identified risks;
-
it requires the state to undertake an effective and proper
investigation into all deaths where the state is involved.
1.43
The Second Optional Protocol, to which Australia is a signatory,
prohibits in absolute terms the imposition of the death penalty.
Compatibility of the measure with
the right to life
1.44
The committee notes that under international human rights law every
human being has the inherent right to life, which should be protected by law
and welcomes measures that seek to protect people from exposure to the death
penalty. The committee notes that the right to life imposes an obligation on
the state to protect people from being killed by others or identified risks.
1.45
The committee notes that, while the ICCPR does not completely prohibit
the imposition of the death penalty, international law prohibits States which
have abolished the death penalty (such as Australia) from exposing a person to
the death penalty in another State.
1.46
As the United Nations Human Rights Committee has made clear, this not
only prohibits deporting or extraditing a person to a country where they may
face the death penalty, but also prohibits the provision of information to
other countries that may be used to investigate and convict someone of an
offence to which the death penalty applies. However, that committee has
expressed concern that Australia lacks 'a comprehensive prohibition on the
providing of international police assistance for the investigation of crimes
that may lead to the imposition of the death penalty in another state', and
concluded that Australia should take steps to ensure it 'does not provide
assistance in the investigation of crimes that may result in the imposition of
the death penalty in another State'.[9]
1.47
The committee therefore considers that the bill, in seeking to prevent
the disclosure of information by public officials in circumstances that might
lead to the imposition of the death penalty, promotes the right to life.
1.48
However, Australia's obligation to prohibit the death penalty applies in
all circumstances, regardless of the severity of the alleged crime. Enabling
the Attorney-General to allow information to be disclosed where it might lead
to the death penalty being imposed, on the basis of the type of crime alleged
to have been committed, therefore limits the right to life.
1.49
In this regard, the statement of compatibility provides no assessment of
the compatibility of the proposed exception with the right to life.
1.50
To demonstrate that a limitation is permissible, proponents of
legislation must provide reasoned and evidence-based explanations of why the
measures are necessary for the attainment of a legitimate objective.
1.51
However, it is unclear to the committee on the basis of the information
provided in the statement of compatibility what the objective of proposed
subsection 7(2) of the bill is, and how this limitation on the right to life
may be considered to be a necessary and proportionate limitation on the right
to life.
1.52
The committee's assessment against article 6 of the International
Covenant on Civil and Political Rights (right to life) of allowing information
to be shared, even if it may result in the death penalty being imposed
in relation to certain serious crimes, raises questions as to whether the
exception is justifiable.
1.53
As set out above, the exception engages and limits the right to life.
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 legislation proponent as to:
-
whether the exception is 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.
Mandatory minimum sentence for disclosure of information
1.54
Proposed section 9 of the bill provides that if a person is convicted of
an offence against section 7, the court must impose a mandatory sentence of
imprisonment of at least one year.
1.55
As set out in the Committee's Guidance Note 2,[10]
mandatory minimum sentences engage both the right to freedom from arbitrary
detention and the right to a fair trial.
Right to freedom from arbitrary
detention and right to a fair trial
1.56
Article 9 of the International Covenant on Civil and Political Rights
(ICCPR) protects the right to security of the person and freedom from arbitrary
detention. An offence provision which requires mandatory minimum sentencing
will engage and limit the right to be free from arbitrary detention. The notion
of 'arbitrariness' under international human rights law includes elements of
inappropriateness, injustice and lack of predictability. Mandatory sentencing
may lead to disproportionate or unduly harsh outcomes as it removes judicial
discretion to take into account all of the relevant circumstances of a
particular case in sentencing.
1.57
Mandatory sentencing is also likely to engage and limit article 14(5) of
the ICCPR, which protects the right to have a sentence reviewed by a higher
tribunal. This is because mandatory sentencing prevents judicial review of the
severity or correctness of a minimum sentence. The committee considers that
mandatory minimum sentencing will be difficult to justify as compatible with
human rights, given the substantial limitations it places on the right to
freedom from arbitrary detention and the right to have a sentence reviewed by a
higher tribunal (due to the blanket nature of the measure). Where mandatory
minimum sentencing does not require a minimum non-parole period, this will
generally be insufficient, in and of itself, to preserve the requisite judicial
discretion under international human rights law to take into account the
particular circumstances of the offence and the offender.
Compatibility of the measure with the
right to freedom from arbitrary detention and the right to a fair trial
1.58
The statement of compatibility does not identify the right to freedom
from arbitrary detention as being engaged by the introduction of mandatory
minimum one year sentences.
1.59
However, detention may be considered arbitrary where it is
disproportionate to the crime. This is why it is generally important for human
rights purposes to allow courts the discretion to ensure that punishment is
proportionate to the seriousness of the offence and individual circumstances.
1.60
The statement of compatibility identifies the legitimate objective being
pursued as 'ensuring offenders receive sentences that reflect the seriousness
of their offending'.[11]
It further states that, as the death penalty clearly infringes human rights,
the act of disclosing information 'that may result in citizens being tried or
convicted of the death penalty is unacceptable'.[12]
1.61
The committee acknowledges that overall the bill pursues a legitimate
objective and addresses a pressing and substantial need.
1.62
However, it is not clear to the committee that the imposition of a
mandatory sentence may be regarded as proportionate to achieving the bill's
stated objective.
1.63
The committee further notes that the proposed offence applies to those who
have acted 'recklessly' in disclosing information, which is a lesser standard
than one of committing the act with 'intention'. Enabling the courts to retain
judicial discretion to determine the most appropriate sentence on the facts of each
case would appear to be the least rights restrictive approach, particularly in
this case as the offence applies to recklessness.
1.64
The committee notes that the statement of compatibility states that the
penalties do not impose a minimum non-parole period on offenders and thereby
preserve some of the court's discretion as to sentencing.
1.65
However, the committee considers that the statement of compatibility
does not provide a sufficient analysis as to why mandatory minimum sentences
are required to achieve the legitimate objective being pursued. In particular
there is no analysis as to why the exercise of judicial discretion, by judges
who have experience in sentencing, would be inappropriate or ineffective in
achieving the objective of appropriately serious sentences.
1.66
The committee considers that mandatory sentencing may also engage
article 14(5) of the ICCPR, which provides the right to have a sentence
reviewed by a higher tribunal. This is because mandatory minimum sentencing
impacts on judicial review of the minimum sentence.
1.67
However, the statement of compatibility does not address the potential
engagement of the right to have a sentence reviewed by a higher tribunal.
1.68
The committee notes that, to demonstrate that a limitation is
permissible, proponents of legislation must provide reasoned and evidence-based
explanations of why the measures are necessary for the attainment of a
legitimate objective.
1.69
The committee's assessment of the mandatory minimum sentence for
disclosure of information, against articles 9 and 14 of the International
Covenant on Civil and Political Rights (right to freedom from arbitrary
detention and right to a fair trial), raises questions as to whether the
mandatory minimum is justifiable.
1.70
As set out above, the mandatory minimum sentence engages and limits
the right to freedom from arbitrary detention and the right to a fair trial. 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 legislation proponent as to whether the mandatory sentence is
a reasonable and proportionate measure to achieve the stated objective, in
particular, that it is the least rights restrictive approach.
Social Services Legislation Amendment
(Youth Employment and Other Measures) Bill 2015
Portfolio:
Social Services
Introduced:
House of Representatives, 28 May 2015
Purpose
1.71
The Social Services Legislation Amendment (Youth Employment and Other
Measures) Bill 2015 (the bill) seeks to amend the Social Security Act 1991
and the Social Security (Administration) Act 1999 to:
-
extend the ordinary waiting period for all working age payments
from 1 July 2015;
-
remove access to Newstart allowance and sickness allowance to 22
to 24 year olds and replace these benefits with access to youth allowance
(other) from 1 July 2016;
-
provide for a four-week waiting period for certain persons aged
under 25 years applying for Youth Allowance (other) or special benefit from 1
July 2016;
-
pause indexation on certain income free and income test free
areas and thresholds for three years; and
-
cease the low income supplement from 1 July 2017.
1.72
Measures raising human rights concerns or issues are set out below.
Background
1.73
The bill reintroduces a number of measures previously included in the Social
Services and Other Legislation Amendment (2014 Budget Measures No. 4) Bill 2014
(the No. 4 bill). The No. 4 bill reintroduced some measures previously included
in the Social Services and Other Legislation Amendment (2014 Budget Measures
No. 1) Bill 2014 (the No. 1 bill) and the Social Services and Other Legislation
Amendment (2014 Budget Measures No. 2) Bill 2014 (the No. 2 bill).
1.74
The committee reported on the No. 1 bill and No. 2 bill in its Ninth
Report of the 44th Parliament,[13]
and concluded its examination of the No. 2 bill in its Twelfth Report of the
44th Parliament.[14]
In that report, the committee requested further information from the Minister
for Social Services regarding measures contained within the No. 1 bill.[15]
1.75
The committee then considered the No. 4 bill in its Fourteenth Report
of the 44th Parliament, and requested further information from
the Minister for Social Services as to whether the bill was compatible with
Australia's international human rights obligations.[16]
1.76
The committee considered the Minister for Social Services' response in
its Seventeenth Report of the 44th Parliament, and concluded
its consideration of the No. 1 bill and No. 4 bill.[17]
Schedule 2 – Age requirements for various Commonwealth payments
1.77
Schedule 2 of the bill would provide that 22-24 year olds are no longer
eligible for Newstart allowance (or sickness allowance), and are instead
eligible for youth allowance. Existing recipients of Newstart allowance (or
sickness allowance) would continue to receive those payments until such time as
they are no longer eligible.
1.78
The committee considers that increasing the age of eligibility for
various Commonwealth payments engages and limits the right to equality and
non-discrimination.
Right to equality and non-discrimination
1.79
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).
1.80
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.
1.81
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or religion),[18]
which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.[19]
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.[20]
Compatibility of the measure with
the right to equality and non-discrimination
1.82
The changes to the threshold for Newstart eligibility in Schedule 2 of
the bill reintroduces measures previously contained within Schedule 8 of the
No. 2 bill and Schedule 6 of the No. 4 bill, which the committee has previously
considered.
1.83
The statement of compatibility for the bill does not identify the
measures as engaging and potentially limiting the right to equality and
non-discrimination.
1.84
However, as the committee noted in its Ninth Report of the 44th
Parliament, a measure that establishes criteria for access to social
security based on age is likely, on its face, to limit the right to equality
and non-discrimination. That is, by reducing access to the amount of social
security entitlements for persons of a particular age, the measure appears to
directly discriminate against persons of this age group.
1.85
A measure which appears directly discriminatory in this way may
nevertheless be justifiable under international human right law. The human
rights assessment of the measure therefore must establish that the proposed age
cut offs are necessary, reasonable and proportionate in pursuit of a legitimate
objective.
1.86
In response to its inquiries on the previous bills as to the
compatibility of the measures with the right to equality and
non-discrimination, the Minister for Social Services stated that 'young people
will continue to have...access [to social security] without illegitimate
differential treatment and without affecting their other rights.'[21]
1.87
However, the committee considered that the
minister's response did not establish that the proposed age cut-offs are
necessary, reasonable and proportionate in pursuit of a legitimate objective.
1.88
In particular, the committee noted that, for the purposes of
international human rights law, 'discrimination' is impermissible differential
treatment among persons or groups that results in a person or group being
treated less favourably than others, based on one of the prohibited grounds for
discrimination.[22]
In this respect, a measure that impacts differentially on individuals based on
their age to exclude them from particular benefits is likely to be incompatible
with the right to equality and non-discrimination.
1.89
As noted above, the statement of compatibility for the bill does not
identify the measure as engaging and potentially limiting the right to equality
and non-discrimination, and therefore provides no assessment as to the
compatibility of the measure with reference to the committee's previous examination
of the measures.
1.90
The committee notes its usual expectation that where a measure that it
has previously considered is reintroduced, previous responses to the
committee's requests for further information be used to inform the statement of
compatibility for the reintroduced measure.
1.91
The committee's assessment of the age requirements for various
Commonwealth payments, against articles 2, 16 and 26 of the International
Covenant on Civil and Political Rights and article 2 of the International
Covenant on Economic, Social and Cultural Rights (right to equality and
non-discrimination), raises questions as to whether the age requirements are
justifiable.
1.92
As set out above, the age requirements for various Commonwealth
payments engage and limit the right to equality and non-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 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.
Schedule 3 – Income support waiting periods
1.93
Schedule 3 of the bill would introduce a requirement from 1 July 2016
that individuals under the age of 25 be subject to a four-week waiting period,
as well as any other waiting periods that may apply, before social security
benefits become payable.
1.94
The measure would apply to applicants seeking youth allowance (other)
and special benefit. The four-week waiting period may be reduced if a person
has previously been employed, and there are a range of exemptions for parents
and individuals with a disability.
1.95
The committee considers that the income support waiting periods engage
and limit the rights to social security and an adequate standard of living.
Right to social security
1.96
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.
1.97
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).
1.98
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.
1.99
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.
Right to an adequate standard of living
1.100
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.
1.101
In respect of the right to an adequate standard of living, article 2(1)
of ICESCR also imposes on Australia the obligations listed above in relation to
the right to social security.
Compatibility of the measure with
the right to social security and an adequate standard of living
1.102
The introduction of the four-week waiting period in Schedule 3 of the
bill re-introduces, with some amendments, the proposal for a 26-week waiting
period previously contained in Schedule 9 of the No. 2 bill and Schedule 7 of
the No. 4 bill.
1.103
The committee previously concluded, in its Twelfth Report of the 44th
Parliament, that the measure was incompatible with the right to social
security and an adequate standard of living.[23]
1.104
In comparison to the previous measure, the bill would reduce the waiting
period four weeks rather than 26 weeks; and introduce an additional $8.1
million in funding that will be allocated to Emergency Relief providers to
provide assistance for those that have been disproportionately impacted by the
measure.
1.105
The statement of compatibility for the bill acknowledges that the
measure engages the rights to social security and an adequate standard of
living, and states that the objective of the measure is to 'encourage greater
participation in work through establishing firm expectations for young job
seekers.'
1.106
The committee considers that this may be regarded as a legitimate
objective, and that the measure is rationally connected to that objective, for
the purposes of international human rights law.
1.107
However, the committee considers that the statement of compatibility has
not demonstrated that the measure is proportionate to its stated objective,
that is, that it is the least rights restrictive means of achieving that
objective.
1.108
In particular, the statement of compatibility has not addressed how young
people are to sustain themselves and provide for an adequate standard of living
during the four-week period without social security.
1.109
Further, while the committee welcomes additional funding for Emergency
Relief providers, the bill provides no explicit guarantee that individuals
subject to the measure will be able to access support from the charitable
organisations allocating the funding . In addition, the statement of
compatibility provides no justification as to how this additional funding
supports the compatibility of the measure with the right to social security
(which is broader than the receipt of charity) and the right to an adequate
standard of living.
1.110
The committee's assessment of income support waiting periods, against
articles 9 and 11 of the International Covenant on Economic, Social and
Cultural Rights (right to social security and an adequate standard of living),
raises questions as to whether the waiting periods are justifiable.
1.111
As set out above, the income support waiting periods engage and limit
the rights to social security and an adequate standard of living. 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 the measure is a proportionate
means of achieving the stated objective.
Right to equality and
non-discrimination
1.112
The right to equality and non-discrimination is protected by articles 2,
16 and 26 of the ICCPR. More information is provided above at [1.79] to [1.81].
Compatibility of the measure with
the right to equality and non-discrimination
1.113
As noted above, the introduction of the four-week waiting period in
Schedule 3 of the bill re-introduces, with some amendments, the proposal for a
26-week waiting period previously contained in Schedule 9 of the No. 2 bill and
Schedule 7 of the No. 4 bill.
1.114
The committee previously concluded that the measure was incompatible with
the right to equality and non-discrimination on the basis of age (direct
discrimination).[24]
1.115
In comparison to the previous measure, the bill provides that the
waiting period will apply to persons under the age of 25, rather than those
under the age of 30.
1.116
The statement of compatibility for the bill acknowledges that the
measure engages the right to equality and non-discrimination on the basis of
age, but concludes that:
Although this
measure differentiates between those aged under 25 and those aged 25 and over,
this differential treatment is designed so that those subjected to a waiting
period are young enough to reasonably draw on family support to assist them
during the waiting period. Additional funding for Emergency Relief providers
acts as a further contingency plan for those young people who need it.[25]
1.117
However, as stated above at [1.87], a measure that impacts
differentially on or excludes individuals based on their age is likely, on its
face, to be incompatible with the right to equality and non-discrimination. In
this respect, by imposing a four-week waiting period based on a person's age,
the measure appears to directly discriminate against persons under 25 years of
age.
1.118
As noted above, a measure which appears directly discriminatory in this
way may nevertheless be justifiable under international human right law. The
human rights assessment of the measure must establish that the proposed age cut
offs are necessary, reasonable and proportionate in pursuit of a legitimate
objective.
1.119
However, the committee considers that the statement of compatibility has
not established how persons under the age of 25, who will be impacted by the
measure, will be able to 'reasonably draw on family support' any more than
those over the age of 25.
1.120
In addition, no information is given as to how persons affected by the
measure, who do not have the ability to draw on family support, could maintain
housing and an adequate standard of living during the waiting period.
1.121
As noted above at [1.106], the committee considers that the measure may
have a legitimate objective for the purposes of international human rights law,
and that the measure is likely to be rationally connected to that objective.
However, the committee is concerned that the measure may not be proportionate
to its stated objective.
1.122
The committee's assessment of income support waiting periods, against
articles 2, 16 and 26 of the International Covenant on Civil and Political
Rights and article 2 of the International Covenant on Economic, Social and
Cultural Rights (right to equality and non-discrimination), raises questions as
to whether the waiting periods are justifiable.
1.123
As set out above, the income support waiting periods engage and limit
the right to equality and non-discrimination on the basis of age. 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 the measure is a proportionate
means of achieving the stated objective.
Migration Amendment (Resolving the
Asylum Legacy Caseload) Regulation 2015 [F2015L00551]
Portfolio: Immigration and Border
Protection
Authorising legislation: Migration Act 1958
Last day to disallow: 13 August 2015 (Senate)
Purpose
1.124
The Migration (Resolving the Asylum Legacy Caseload) Regulation 2015
(the regulation) amends the Migration Regulations 1994 to:
-
provide the manner in which the Immigration Assessment Authority
will exercise its functions in the fast track assessment process;
-
remove most references to the 1951 Convention relating to the
Status of Refugees and its 1967 Protocol (the Refugee Convention) and replace
them with a new statutory framework reflecting Australia's unilateral
interpretation of its protection obligations; and
-
establish criteria for the grant of the temporary protection visa
(TPV) and safe haven enterprise visa (SHEV).
1.125
Measures raising human rights concerns or issues are set out below.
Background
1.126
The regulation is consequential to the Migration and Maritime Powers
Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (the RALC
Act). The committee reported on the Migration and Maritime Powers Legislation
Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (RALC bill) in its Fourteenth
Report of the 44th Parliament.[26]
1.127
In this report the committee raised concerns about the compatibility,
among other things, of:
-
the fast track assessment process with the rights of the child,
the right to a fair hearing and the obligation of non-refoulement;
-
removing most references to the Refugee Convention from the Migration
Act 1958, and replacing them with a new statutory framework
reflecting Australia's unilateral interpretation of its protection obligations,
with multiple human rights; and
-
TPVs with the obligation not to place any person at risk of
refoulement, the obligation to consider the best interests of the child as a
primary consideration, the right to the protection of the family and the right
to health.
1.128
It also concluded that the fast-track assessment process, in excluding
merits review for certain applicants, was incompatible with Australia's
obligations of non-refoulement.
1.129
The committee notes that the statement of compatibility to the
regulation relies on the statement of compatibility for the RALC Act to assess the
human rights implications of the measures contained in the regulation.[27]
1.130
Accordingly, to the extent that the regulation is consequential to the
amendments introduced by the RALC Act, the concerns set out in the committee's
previous report in relation to the RALC bill apply to the regulation.[28]
Safe haven enterprise visas
1.131
Safe Haven Enterprise Visas (SHEVs) were created by the RALC Act. These
visas may be granted to persons who are found to be owed protection obligations
and who indicate an intention to work or study in regional areas in Australia.
The regulation sets out certain criteria for the grant of a SHEV.
1.132
The committee notes that the main criteria for the grant of a SHEV were
included by an amendment to the RALC bill, and the committee therefore did not
examine the human rights compatibility of the SHEV regime during its
consideration of the bill. However, many of the previous report's concerns in
relation to TPVs implemented by the RALC bill apply equally to the SHEV regime,
particularly in relation to Australia's non-refoulement obligations.[29]
1.133
Many of the measures in the regulation are technical in nature or
alleviate minor aspects of the human rights concerns with SHEVs – one example
is that it ensures that only one member of a family unit needs to have
indicated an intention to work or study to be eligible for a SHEV, so that the
family unit can receive the same category of visa.
1.134
However, the regulation raises a human rights compatibility concern in
respect of providing that people who hold a SHEV, and people whose last
substantive visa was a SHEV, are unable to make a valid application for a
Bridging Visa B. A Bridging Visa B has a travel facility attached to it.
1.135
The statement of compatibility for the regulation explains the reason
for this amendment as follows:
The RALC Act made
it a condition imposed on all SHEV holders that they must seek permission
before travelling overseas and are not to travel to the country in respect of
which protection was sought. If the visa holder breaches this condition a
discretion to cancel the visa under s116(1)(b) of the Migration Act will be
enlivened.
However, due to
an oversight in the Government-sponsored amendments, the RALC Act did not make
a consequential amendment to remove the access of SHEV holders to BVBs. If
SHEV holders were to be granted BVBs whilst waiting for a further substantive
visa to be granted, the intended restriction on travel could not be enforced.[30]
1.136
The committee considers that the restriction on travel for SHEV holders
engages and limits the right to freedom of movement.
Right to freedom of movement
1.137
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 move freely within a country for those who are lawfully within the
country, the right to leave any country and the right to enter a country of
which you are a citizen. The right may be restricted in certain circumstances.
1.138
The right to freedom of movement is linked to the right to liberty – a
person's movement across borders should not be unreasonably limited by the
state. It also encompasses freedom from procedural impediments, such as
unreasonable restrictions on accessing public places.
1.139
The right to freedom of movement also includes a right to leave
Australia, either temporarily or permanently. This applies to both Australian
citizens and non-citizens. As international travel requires the use of
passports, the right to freedom of movement encompasses the right to obtain
necessary travel documents without unreasonable delay or cost.
1.140
Limitations can be placed on the right as long as they are lawful and
proportionate. Particular examples of the reasons for such limitations include
the need to protect public order, public health, national security or the
rights of others.
Compatibility of the measure with
the right to freedom of movement
1.141
The statement of compatibility for the regulation acknowledges that
preventing SHEV holders from applying for a visa that allows the visa holder to
travel limits the right to freedom of movement. However, it justifies this
limitation as follows:
The amendments are
reasonable and proportionate in pursuit of the Government's legitimate aim of
offering protection to genuine refugees and those fearing significant harm,
while also protecting the integrity of the protection visa regime by enabling
cancellation of a protection visa (which includes a SHEV) where circumstances
indicate the person does not, or no longer, requires Australia's
protection. The amendments are therefore consistent with Australia's
international human rights obligations.[31]
1.142
The committee acknowledges that protecting the integrity of the
protection visa regime may be regarded as a legitimate objective for the
purposes of international human rights law.
1.143
However, it is unclear how denying a person the right to travel is
rationally connected to that objective.
1.144
In particular, the statement of compatibility states that the protection
visa regime's integrity will be upheld if it allows protection visas, including
SHEVs, to be cancelled where circumstances indicate the person no longer
requires Australia's protection. However, it is unclear how preventing a person
from travelling to any country, and not just to the country from which they
have a well-founded fear of persecution, ensures that protection visas are only
held by those to whom Australia owes protection obligations.
1.145
The regulation provides that SHEV holders are no longer eligible for the
Bridging Visa B, which is a temporary visa that lets the holder leave and
return to Australia while their application for a substantive visa is being
processed. It allows a person who returns to Australia within the specified
travel period to remain lawfully in Australia while their substantive visa
application is being processed.
1.146
The SHEV regime allows a visa holder to travel in compassionate and
compelling circumstances, as approved by the minister in writing, and to places
other than the country in respect of which protection was sought.[32]
However, it is unclear why it is necessary to require the minister's written
approval before the SHEV holder is able to travel to any country, as merely
seeking to travel would not appear to indicate in and of itself that a person
is not in need of protection.
1.147
Further, it is noted that the regulation does not allow a SHEV holder,
or former SHEV holder to ever apply for a Bridging Visa B. It is not clear how
this blanket denial of the right to apply for this type of visa could, even if
rationally connected to a legitimate objective, be regarded as proportionate to
that objective.
1.148
The committee's assessment of denying SHEV holders access to a
Bridging Visa B, against article 12 of the International Covenant on
Civil and Political Rights (right to freedom of movement), raises
questions as to whether the restrictions are justifiable.
1.149
As set out above, denying SHEV holders access to a Bridging Visa B engages
and may limit 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 a rational connection between the limitation
and the stated objective, in particular, how does denying access to travel to
SHEV holders to any country further the objective of maintaining the integrity
of the protection visa regime; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective, and in particular, why it is
necessary to prohibit access entirely to Bridging Visa Bs for all SHEV, or former
SHEV, holders.
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