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 14 to 17 September 2015, legislative instruments received from
28 August to 17 September 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 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):
- Aviation Transport Security Amendment (Cargo) Bill 2015;
- Customs Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015;
- Customs Amendment (Fees and Charges) Bill 2015;
- Customs Depot Licensing Charges Amendment Bill 2015;
- Customs Tariff Amendment (China-Australia Free Trade Agreement
Implementation) Bill 2015;
- Education Services for Overseas Students (Registration Charges)
Amendment (Streamlining Regulation) Bill 2015;
- Education Services for Overseas Students Amendment (Streamlining
Regulation) Bill 2015;
- Environment Protection and Biodiversity Conservation Amendment
(Prohibition of Live Imports of Primates for Research) Bill 2015;
- Food Standards Australia New Zealand Amendment (Forum on Food
Regulation and Other Measures) Bill 2015;
- Import Processing Charges Amendment Bill 2015; and
- Tax Laws Amendment (Combating Multinational Tax Avoidance) 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):
- Education Legislation Amendment (Overseas Debt Recovery) Bill
2015;
- Student Loans (Overseas Debtors Repayment Levy) Bill 2015;
- Fair Work Amendment (Gender Pay Gap) Bill 2015;
- Migration Amendment (Charging for a Migration Outcome) Bill 2015;
- Social Services Legislation Amendment (Cost of Living Concession)
Bill 2015;
- Social Services Legislation Amendment (Low Income Supplement)
Bill 2015;
- Social Services Legislation Amendment (More Generous Means
Testing for Youth Payments) Bill 2015;
- Superannuation Legislation Amendment (Trustee Governance) Bill
2015; and
- Trade Marks Amendment (Iconic Symbols of National Identity) 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 following bill and
instruments:
- Migration and Maritime Powers Amendment Bill (No. 1) 2015;
- Fair Work (State Declarations — employer not to be national
system employer) Endorsement 2015 (No. 1) [F2015L01420]; and
- Radiocommunications (27 MHz Handphone Stations) Class Licence
2015 [F2015L01441].
1.12
The committee continues to defer its consideration of the Marriage
Legislation Amendment Bill 2015 (deferred 8 September 2015) and the Migration
Amendment (Protection and Other Measures) Regulation 2015 [F2015L00542]
(deferred 23 June 2015).
1.13
As previously noted, the committee continues to defer one bill and a
number of instruments in connection with the committee's current review of the Stronger
Futures in the Northern Territory Act 2012 and related legislation.[2]
Response required
1.14
The committee seeks a response or further information from the relevant minister
or legislation proponent with respect to the following bills and instruments.
Australian Immunisation Register Bill 2015
Australian Immunisation Register (Consequential and Transitional
Provisions) Bill 2015
Portfolio:
Health
Introduced: House of Representatives, 10 August 2015
Purpose
1.15
The Australian Immunisation Register Bill 2015 (the bill) creates a new
legislative framework for the operation of Australian immunisation registers,
and repeals existing registers established under the
Health Insurance Act
1973 and the
National Health Act 1953.
1.16
The Australian Immunisation Register (Consequential and Transitional
Provisions) Bill 2015 provides for the consequential and transitional
provisions required to support the operation of the Australian Immunisation
Register Act 2015.
1.17
Together these bills provide for the expansion of immunisation registers
in two stages:
- From 1 January 2016 the Australian Childhood Immunisation
Register (ACIR) will be expanded, so as to collect and record all vaccinations
given to young people under the age of 20 years (currently only vaccinations
given to children aged under seven years are collected and recorded); and
- From late 2016 the register will be renamed the Australian
Immunisation Register (AIR) and will collect and record all vaccinations given
to every person in Australia from birth to death.
1.18
Measures raising human rights concerns or issues are set out below.
Use and disclosure of personal information from the Australian Immunisation
Register
1.19
Under the bills, from late 2016 all persons in Australia enrolled in
medicare and, if not eligible for medicare, anyone vaccinated in Australia,
will be automatically registered on the AIR. This will include the vast
majority of people in Australia, including those that choose not to receive
vaccinations. The AIR can include significant personal information.[3]
1.20
The committee considers that the use and disclosure of personal
information engages and limits the right to privacy.
Right to privacy
1.21
Article 17 of the International Covenant on Civil and Political Rights
(ICCPR) prohibits arbitrary or unlawful interferences with an individual's
privacy, family, correspondence or home. The right to privacy includes respect
for informational privacy, including:
- the right to respect for private and confidential information,
particularly the storing, use and sharing of such information; and
- the right to control the dissemination of information about one's
private life.
1.22
However, this right may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, they must seek to achieve a legitimate objective and be reasonable,
necessary and proportionate to achieving that objective.
Compatibility of the measure with
the right to privacy
1.23
The statement of compatibility for the bill acknowledges that the bill
engages the right to privacy but states:
The authorisations of used [sic] and disclosure of personal
information are reasonable, appropriate and necessary for the objectives and
purposes of the Bill and adequately describes persons who are requiring access
to the immunisation Register to achieve the objectives of the Register. The
provisions in the Bill also provide individuals with freedom to access their
own personal information. The limiting provisions surrounding the access of
personal information are well described. The limitations for purposes for which
the information can be disclosed are a reasonable and proportionate use of
individual's personal information.[4]
1.24
The committee notes that while the statement of compatibility does not
explicitly set out the objectives of the bill, the objectives of the bill
appear to include facilitating the establishment of records of vaccinations
which will assist with information about vaccination coverage; monitoring the
effectiveness of vaccinations; identifying areas of Australia at risk during
disease outbreaks; and promoting health and well-being.[5] The committee considers that these objectives are likely to be considered
legitimate objectives for the purposes of international human rights law, and
the inclusion of information on the AIR is likely to be rationally connected to
these objectives.
1.25
However, it is unclear whether all of the powers enabling the use,
recording and disclosure of information are proportionate to achieving those objectives.
In particular, the committee is concerned about the ability of the minister (or
his or her delegate) to authorise a person to use or disclose protected
personal information for a purpose that the minister (or delegate) is satisfied
is in the public interest. This power is in addition to the other powers under
subclause 22(2), which provides detailed authorisation for the use and
disclosure of protected information to specified persons or bodies and for
specified purposes.
1.26
The statement of compatibility does not explain why it is necessary to
include this broadly defined power. Rather, it states:
The Minister (or his or her delegate) may also disclose
personal information if they are satisfied that it is in the public interest to
do so. An example is where a child protection agency requests information when
investigating the welfare of a child. Section 23 of the Bill creates an offence
for making a record, using or disclosing personal information where not
authorised. In the 2014-2015 financial year, more than 18,000 authorisations
occurred for this purpose.[6]
1.27
Under international human rights law, when considering whether a
limitation on a right is proportionate to achieve the stated objective it is
necessary to consider whether there are other less restrictive ways to achieve
the same aim. It is not clear why it is necessary to have such a broad power to
enable disclosure to any person if it is considered to be 'in the public
interest', in addition to the already expansive powers to authorise the use or
disclosure of information under subclause 22(3) of the bill. If the
intention is to allow child protection agencies to access the information, the
provision could have been drafted more narrowly. The committee also notes that
the statement of compatibility says that in one year, 18 000
authorisations for disclosure were made under the existing legislation. It
would assist the committee to understand more about what type of authorisations
these were, to whom and for what purpose.
1.28
It is also of note that the explanatory memorandum refers to disclosure
being limited to 'a specified person or to a specified class of persons',[7] however, clause 22(3) is not limited in this way but allows the minister to
authorise 'a person' to use or disclose protected information.
1.29
The committee's assessment of the measure authorising the use or
disclosure of protected information against article 17 of the International
Covenant on Civil and Political Rights (right to privacy) raises questions as
to whether the measure adopts the least rights restrictive approach.
1.30
As set out above, the measure authorising the use or disclosure
of protected information engages and limits the right to privacy. The statement
of compatibility does not sufficiently justify that limitation for the purposes
of international human rights law. The committee therefore seeks the advice of
the Minister for Health as to whether the limitation is a reasonable and
proportionate measure for the achievement of that objective, in particular
whether the measure is sufficiently circumscribed to ensure it operates in the
least rights restrictive manner.
Reversal of the burden of proof
1.31
Clause 23 of the bill makes it an offence for a person to make a record
of, disclose or otherwise use protected information if that record, use or
disclosure is not authorised by the bill. Clauses 24 to 27 provide a number of
exceptions to this offence, including if the use is in good faith, the person
is unaware that information is commercial-in-confidence, that the disclosure
was to the person to whom the information relates or to the person who provided
the information. These exceptions reverse the burden of proof, requiring the
defendant to bear an evidential burden if relying on these defences.
1.32
The committee considers that the reversal of the burden of proof engages
and limits the right to a fair trial (presumption of innocence).
Right to a fair trial (presumption of innocence)
1.33
The right to a fair trial and fair hearing is protected by article 14 of
the ICCPR. Article 14(2) of the ICCPR protects the right to be presumed
innocent until proven guilty according to law. Generally, consistency with the
presumption of innocence requires the prosecution to prove each element of a
criminal offence beyond reasonable doubt.
1.34
An offence provision which requires the defendant to carry an evidential
or legal burden of proof, commonly referred to as 'a reverse burden', with
regard to the existence of some fact engages and limits the presumption of
innocence. This is because a defendant's failure to discharge the burden of
proof may permit their conviction despite reasonable doubt as to their guilt.
1.35
Where a statutory exception, defence or excuse to an offence is provided
in proposed legislation, these defences or exceptions must be considered as
part of a contextual and substantive assessment of potential limitations on the
right to be presumed innocent in the context of an offence provision. Reverse
burden offences will be likely to be compatible with the presumption of
innocence where they are shown by legislation proponents to be reasonable,
necessary and proportionate in pursuit of a legitimate objective. Claims of
greater convenience or ease for the prosecution in proving a case will be
insufficient, in and of themselves, to justify a limitation on the defendant's
right to be presumed innocent.
Compatibility of the measure with
the right to a fair trial
1.36
The statement of compatibility for the bill does not acknowledge that
the right to a fair trial is engaged by these measures. The explanatory memorandum
to the bill also provides no justification for these measures.
1.37
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,[8] 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'.[9] 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.
1.38
The committee's assessment of the reversal of the burden of proof
against article 14 of the International Covenant on Civil and Political Rights
(right to a fair trial) raises questions as to whether the measure is
justifiable.
1.39
As set out above, the reversal of the burden of proof engages and
limits the right to a fair trial. 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 Health as to:
- whether the proposed changes are aimed at achieving a
legitimate objective;
- whether there is a rational connection between the limitation
and that objective; and
- whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Health Legislation Amendment (eHealth) Bill 2015
Portfolio:
Health
Introduced: House of Representatives, 17 September 2015
Purpose
1.40
The Health Legislation Amendment (eHealth) Bill 2015 (the bill) seeks to
amend the law relating to the personally controlled electronic health record
system (PCEHR). The PCEHR (to be renamed 'My Health Record') provides an
electronic summary of an individual's health records. Currently, under
legislation governing the PCEHR, an individual's sensitive health records are
only uploaded on to the register if the individual expressly consents (or
'opts-in').
1.41
The bill will enable opt-out trials to be undertaken in defined
locations, whereby an individual's health records will be automatically
uploaded onto the My Health Record system unless that individual takes steps to
request that their information not be uploaded. The bill would allow the
opt-out process to apply nationwide following a trial.
1.42
The bill seeks to simplify the privacy framework by revising the way
that permissions to collect, use and disclose information are presented, and
will include new permissions to reflect how entities engage with one another.
The bill also seeks to introduce new criminal and civil penalties for breaches
of privacy; provide that enforceable undertakings and injunctions are
available; and extend mandatory data breach notification requirements.
1.43
Measures raising human rights concerns or issues are set out below.
Automatic inclusion of health records on the My Health Record system:
'opt-out' process
1.44
As set out above, the bill seeks to remove the requirement for the
express consent of an individual before their personal health records are
uploaded onto the PCEHR. Rather, an individual will need to expressly advise
that they do not wish to participate (to 'opt-out').
1.45
The committee considers that the bill, in enabling the uploading of
everyone's personal health records onto a government database without their
consent, engages and limits the right to privacy.
Right to privacy
1.46
Article 17 of the International Covenant on Civil and Political
Rights (ICCPR) prohibits arbitrary or unlawful interferences with an
individual's privacy, family, correspondence or home. The right to privacy
includes respect for informational privacy, including:
- the right to respect for private and confidential information,
particularly the storing, use and sharing of such information; and
- the right to control the dissemination of information about one's
private life.
1.47
However, this right may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, they must seek to achieve a legitimate objective and be reasonable,
necessary and proportionate to achieving that objective.
Compatibility of the measure with
the right to privacy
1.48
The statement of compatibility acknowledges that the bill limits the
right to privacy, however, it concludes that the limitation on the right to
privacy is reasonable, necessary and proportionate. It explains the overall
objective of the My Health Record system:
The objective of the system is to address the fragmentation
of information across the Australian health system and provide healthcare
providers the information they need to inform effective treatment decisions.[10]
1.49
The statement of compatibility also explains that the bill responds to
recommendations made from a review of the PCEHR system and addresses issues
identified in the early years of operating the system.[11] It explains that the opt-out model is intended to drive the use of My Health
Records by healthcare providers as part of normal healthcare in Australia:
Increased participation by individuals is anticipated to
drive increased and meaningful use by healthcare providers. Combined with other
measures to improve the usability of the system and the clinical content of My
Health Records, if nearly all individuals have a My Health Record, healthcare
providers will be more likely to commit to using and contributing to the My
Health Record system, thereby increasing the utility of the system by
increasing the amount of clinically valuable information.[12]
1.50
The committee notes that the overall objective of the My Health Record
system, in seeking to provide healthcare providers with the necessary
information to inform effective treatment decisions, is likely to be considered
a legitimate objective for the purposes of international human rights law.
However, it is questionable whether the objective behind the bill, in amending
the system to an opt-out model, would be considered a legitimate objective for
the purposes of international human rights law. 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. Increasing the number of people using the My Health
Record system, in an attempt to drive increased use by healthcare providers,
may be regarded as a desirable or convenient outcome but may not be addressing
an area of public or social concern that is pressing and substantial enough to
warrant limiting the right.
1.51
Even if the opt-out model, and the corresponding limitation on the right
to privacy, is considered to be seeking to achieve a legitimate objective, it
must also be demonstrated that the limitation is proportionate to the objective
being sought.
1.52
The statement of compatibility sets out a number of safeguards in place
for the use and disclosure of healthcare information held on the database,
noting:
Individuals who have a My Health Record can control who can
access their information and what information can be accessed, and can elect to
be notified when someone accesses their My Health Record. Individuals can set
the access controls on their My Health Record online or over the phone. They
can limit which healthcare providers can access their My Health Record...They can
effectively remove records that have been uploaded...Once they have a My Health
Record an individual can cancel their registration.[13]
1.53
The committee accepts that the safeguards contained in the My Health
Record system, as a whole, are likely to mean that the limitation on the right
to privacy, for those who actively register for a My Health Record and choose
to have their private health records uploaded to the database, is likely to be
proportionate to the overall objective of maintaining the My Health Record
system.
1.54
However, the statement of compatibility gives little information about
the proportionality of the proposed opt-out process. It explains that the
opt-out process will be initially trialled in specific locations, meaning 'My
Health Records will be created for people living in specified locations unless
they say they do not want one'.[14] Little detail is given as to how people in these specified locations will be
notified that their personal health information will be automatically uploaded
on a national register unless they take active steps to opt out.[15]
1.55
Further information is provided in the explanatory memorandum (EM) to
the bill as to how the opt-out arrangements might work in practice. It states:
In any opt-out arrangements, it is intended that healthcare
recipients would be given a reasonable amount of notice before opt-out is
implemented so they could learn about the My Health Record system, and would be
given a reasonable amount of time to decide whether or not to opt-out. Various
methods would be made available to healthcare recipients to opt-out, for
example, online, in person or by phone.[16]
1.56
However, the bill itself does not set out any safeguards to ensure that
healthcare recipients would be given reasonable notice or a reasonable amount
of time to decide whether to opt-out. Rather, a person's health records would
automatically be registered on the system if the System Operator 'is satisfied'
that the healthcare recipient 'has been given the opportunity' not to be
registered (not a 'reasonable' opportunity).[17]
1.57
When a healthcare recipient elects not to be registered they must do so
in 'the approved form' and if the rules so require it, to do so 'within a
period, or on the occurrence of an event' specified in the rules. There is no
requirement in the bill that this period of time be within a reasonable time
after an individual is notified that their personal health records are being
uploaded onto the national database–nor is there any requirement in the
legislation to notify individuals that their personal health records will be
automatically uploaded onto the register unless they actively opt-out.
1.58
In addition, once an individual's personal details are included on the
My Health Record there is no ability for the person to erase their record from
the register – all they can do is ensure that the personal health information
stored on the database will not be authorised for disclosure.[18]
1.59
The EM states that there will be 'various channels' available for people
to opt-out, including online or as a tick-box on an application form to
register newborns or immigrants with Medicare. However, these are not set out
in the legislation.
1.60
The EM also states that for those without online access, with
communication disabilities, or without the required identity documents, 'other
channels will be available, such as phone and in person'.[19]
No information is given as to how this would work in practice. There are no
legislative safeguards in the bill to ensure that people will be appropriately
notified.
1.61
The committee's interpretation of international human rights law is
that, where a measure limits a human right, discretionary or administrative
safeguards alone are likely to be insufficient for the purpose of a permissible
limitation.[20]
This is because administrative and discretionary safeguards are less stringent
than the protection of statutory processes and can be amended at any time.
1.62
In considering whether the limitation on the right to privacy is
proportionate to the stated objective it is also necessary to consider whether
there are other less restrictive ways to achieve the same aim. In order to
achieve the objective of having more people register for the My Health Record
system it is not clear, on the basis of the information provided, why the
current opt-in model has not succeeded. The committee notes that the Regulatory
Impact Statement (RIS) attached to the EM for the bill weighed up a number of
legislative options. No explicit consideration of the right to privacy is
included in the RIS and there is no evidence that the option set out in the
bill is in fact the least rights restrictive.
1.63
The bill also provides that once the opt-out trial has taken place the
Minister for Health can, by making rules, apply the opt-out model to all
healthcare recipients in Australia. In making this decision the bill provides
that the minister 'may' take into account the evidence obtained in applying the
opt-out model and any other matter relevant to the decision.
[21] There is no requirement that the minister consider the privacy implications of
this decision or whether people in the trials were given an appropriate and
informed opportunity to opt-out.
1.64
The committee's assessment of the opt-out model provided for by
the bill against article 17 of the International Covenant on Civil and
Political Rights (right to privacy) raises questions as to whether the opt-out
model is a justifiable limitation on the right to privacy.
1.65
As set out above, the opt-out model engages and limits the right
to privacy. The statement of compatibility does not sufficiently justify that
limitation for the purposes of international human rights law. The committee
therefore seeks the advice of the Minister for Health as to:
- whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
- whether there is a rational connection between the limitation
and that objective; and
- whether the limitation is a reasonable and proportionate
measure for the achievement of that objective, in particular whether the
opt-out model is the least rights restrictive approach and whether there are
sufficient safeguards in the legislation.
Automatic inclusion of children's health records on the My Health Record
system
1.66
Currently under the Personally Controlled Electronic Health Records
Act 2012 a person under the age of 18 years is automatically assigned
an 'authorised representative' who has the power to manage the child's health
records.[22] The authorised representative can be any person who has parental responsibility
for the child. A parent is considered to be the child's authorised
representative until the child turns 18 years of age or until the child takes
control of their record. A child who wishes to take control of their health
record needs to satisfy the System Operator that they want to manage his or her
own PCEHR and are capable of making decisions for themselves.[23]
1.67
The committee considers that automatically uploading the private health
records of all children in Australia, unless their parent chooses to opt-out of
the register, engages and both promotes and limits the rights of the child.
Rights of the child
1.68
Children have special rights under human rights law taking into account
their particular vulnerabilities. Children's rights are protected under a
number of treaties, particularly the Convention on the Rights of the Child
(CRC). All children under the age of 18 years are guaranteed these rights. The
rights of children include:
- the right to develop to the fullest;
- the right to protection from harmful influences, abuse and
exploitation;
- family rights; and
- the right to access health care, education and services that meet
their needs.
1.69
State parties to the CRC are required to ensure to children the
enjoyment of fundamental human rights and freedoms and are required to provide
for special protection for children in their laws and practices. In
interpreting all rights that apply to children, the following core principles
apply:
- rights are to be applied without discrimination;
- the best interests of the child are to be a primary
consideration;
- there must be a focus on the child's right to life, survival and
development, including their physical, mental, spiritual, moral, psychological
and social development;
- there must be respect for the child's right to express his or her
views in all matters affecting them.
Compatibility of the measure with
the rights of the child
1.70
The statement of compatibility for the bill recognises that the rights
of the child are engaged by the bill but states:
The existing arrangements allowing parents or other
appropriate people to act on behalf of a child (section 6 of the My Health
Records Act) are not affected by the Bill. ... [T]he privacy of children is
protected as representatives such as parents and legal guardians can set the
privacy controls such as removing information or restricting access to
content...
The My Health Records Act continues to allow a child who is
capable of making decisions for themselves to take control of their My Health
Record, set access controls or cancel their registration (if already
registered) if they choose to do so. The Bill will enable a child who is
capable of making decisions for themselves to, like other individuals, opt
themselves out of registration in the My Health Record system. ...
[T]he Bill shifts the duty of authorised representatives for
children from being required to act in the 'best interests' of an individual,
to a duty to give effect to the 'will and preferences' of the individual. This
change realises the principle that children with appropriate maturity have an
equal right to make decisions and to have those decisions respected...[24]
1.71
As noted above at [1.50] an attempt to drive increased use by healthcare
providers, may be regarded as a desirable or convenient outcome but may not
address an area of public or social concern that is pressing and substantial
enough to warrant limiting the rights of the child.
1.72
In addition, the committee considers that the opt-out model may not be
regarded as a proportionate means of achieving that objective. As discussed
above, the amendments in the bill will enable the collection of all children's
personal sensitive health information to be automatically included on the My
Health Record, unless their authorised representative opts-out of this process,
or they can prove to the Systems Operator that they should not have an
authorised representative and so can opt-out themselves. Similarly to the
discussion above at paragraphs [1.48] to [1.62], this significantly limits the
child's right to privacy and, in so doing, limits the rights of the child. In
particular, as the UN Committee on the Rights of the Child has noted, the child
has the right to the protection of their confidential health-related
information:
In order to promote the health and development of
adolescents, States parties are also encouraged to respect strictly their right
to privacy and confidentiality, including with respect to advice and
counselling on health matters (art. 16). Health-care providers have an
obligation to keep confidential medical information concerning adolescents,
bearing in mind the basic principles of the Convention. Such information may
only be disclosed with the consent of the adolescent, or in the same situations
applying to the violation of an adult's confidentiality. Adolescents deemed
mature enough to receive counselling without the presence of a parent or other
person are entitled to privacy and may request confidential services, including
treatment.[25]
1.73
Under the proposed opt-out arrangements in the bill a child must rely on
their parent taking active steps to ensure the child's record is not
automatically included on the My Health Record. As set out above at paragraphs
[1.54] to [1.61] there are particular problems with the way in which the
current opt-out arrangements are provided for in the bill. There is also no
additional information as to how a child, who wishes to take control of their
own record, is able to do so. No information is given as to what a child needs
to do in order to satisfy the Systems Operator that their parent should not be
considered to be their authorised representative. No information is given as to
what timeframe the Systems Operator makes the decision as to whether the child
is capable of managing their own affairs and whether this would occur within
sufficient time to allow the child to exercise their opt-out rights.
1.74
The committee notes that the bill does impose an obligation on an
authorised representative to give effect to the will and preferences of the
child, unless to do so would pose a serious risk to the child's personal and
social wellbeing.[26] While this is a welcome measure, there is nothing in the legislation that makes
this requirement binding, as there are no consequences in the legislation if
the parent does not give effect to the child's will and preferences. In addition,
even if a child does manage to become responsible for their own health records,
it appears that the child's parent will be notified when that occurs.[27]
1.75
The committee's assessment of the automatic inclusion of all
children's health records on the My Health Record register against the
Convention on the Rights of the Child (rights of the child) raises questions as
to whether the automatic inclusion of the health records of all children on the
register is compatible with the rights of the child.
1.76
As set out above, automatic inclusion of the health records of
all children on the register engages and limits the rights 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 Health as to:
- whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
- whether there is a rational connection between the limitation
and that objective; and
- whether the limitation is a reasonable and proportionate
measure for the achievement of that objective, in particular whether the opt-out
model is the least rights restrictive approach and whether there are sufficient
safeguards in the legislation to protect the rights of the child.
Automatic inclusion of the health records of persons with disabilities on
the My Health Record system
1.77
Currently under the Personally Controlled Electronic Health Records
Act 2012 (the PCEHR Act) a healthcare recipient can apply to the
System Operator to register for the PCEHR, thereby opting-in to have their
health care records included on the register. A person with disabilities can do
so on an equal basis with other healthcare recipients. However, where the
Systems Operator of the PCEHR is satisfied that a person aged over 18 years is
not capable of making decisions for him or herself, another person will be
considered to be the authorised representative of that person, and only that
person will be able to manage the person's health records.[28]
1.78
The committee considers that automatically uploading the private health
records of all persons with disabilities in Australia, unless they or an
authorised representative choose to opt-out of the register, engages and limits
the rights of persons with disabilities.
Rights of persons with disabilities
1.79
The Convention on the Rights of Persons with Disabilities (CRPD) sets
out the specific rights owed to persons with disabilities. It describes the
specific elements that state parties are required to take into account to
ensure the right to equality before the law for people with disabilities, on an
equal basis with others, and to participate fully in society.
1.80
Article 4 of the CRPD states that in developing and implementing
legislation and policies that concern issues relating to persons with
disabilities, states must closely consult with and actively involve persons
with disabilities, through their representative organisations.
1.81
Article 5 of the CRPD guarantees equality for all persons under and
before the law and the right to equal protection of the law. It expressly
prohibits all discrimination on the basis of disability.
1.82
Article 12 of the CRPD requires state parties to refrain from denying
persons with disabilities their legal capacity, and to provide them with access
to the support necessary to enable them to exercise their legal capacity.
1.83
Article 22 requires state parties to protect the privacy of the
personal, health and rehabilitation information of persons with disabilities on
an equal basis with others.
Compatibility of the measure with
the rights of persons with disabilities
1.84
The statement of compatibility for the bill recognises that the rights
of persons with disabilities are engaged by the bill, but states:
Consistent with Article 12, people with a disability are
provided equal opportunity to participate in the My Health Record system and
make decisions about access to their personal information. Continuing current
arrangements, authorised representatives can support people to interact with
the My Health Record system and act on behalf of the individual if they are
unable to act for themselves. These arrangements allow for people with a
disability to participate in the My Health Record system, control access to
their personal information and withdraw participation in the My Health Record
system if they choose to do so. This functionality also supports Article 22 of
the CRPD protecting the privacy of people with a disability.
The Bill shifts the duty of authorised representatives from
being required to act in the 'best interests' of an individual, to a duty to
give effect to the 'will and preferences' of the individual. This change
realises the principle that people with disability have an equal right to make
decisions and to have those decisions respected...[29]
1.85
As noted above at [1.50], an attempt to drive increased use by
healthcare providers, may be regarded as a desirable or convenient outcome but
may not address an area of public or social concern that is pressing and
substantial enough to warrant limiting the rights of persons with disabilities.
1.86
In addition, the committee considers that the opt-out model may not be
regarded as a proportionate means of achieving that objective. As discussed
above, the amendments in the bill will enable the collection of the personal
sensitive health information of all persons with disabilities to be automatically
included on the My Health Record register, unless they or their authorised
representative opts-out of this process. Similar to the discussion above at
paragraphs [1.48] to [1.62], this significantly limits the right to privacy of
persons with disabilities. The processes proposed by the bill also do not
appear to provide persons with disabilities the support necessary to enable
them to exercise their legal capacity.
1.87
In particular, the current law provides that whenever the Systems
Operator is satisfied that a healthcare recipient 'is not capable of making
decisions for himself or herself' the Systems Operator will deem whomever they
are satisfied is an appropriate person to be the healthcare recipient's
authorised representative. Once an authorised representative is stated by the
Systems Operator to be acting for a healthcare recipient, that authorised
representative is authorised to do anything the healthcare recipient can do and
the healthcare recipient is not entitled to have any role in managing their
health records.[30]
1.88
However, article 12 of the CRPD affirms that all persons with
disabilities have full legal capacity. While support should be given where
necessary to assist a person with disabilities to exercise their legal
capacity, it cannot operate to deny the person legal capacity by substituting
another person to make decisions on their behalf. The UN Committee on the
Rights of Persons with Disabilities has considered the basis on which a person
is often denied legal capacity, which includes where a person's decision-making
skills are considered to be deficient (known as the functional approach). It
has described this approach as flawed:
The functional approach attempts to assess mental capacity
and deny legal capacity accordingly. It is often based on whether a person can
understand the nature and consequences of a decision and/or whether he or she
can use or weigh the relevant information. This approach is flawed for two key
reasons: (a) it is discriminatorily applied to people with disabilities; and
(b) it presumes to be able to accurately assess the inner-workings of the human
mind and, when the person does not pass the assessment, it then denies him or
her a core human right — the right to equal recognition before the law. In all
of those approaches, a person's disability and/or decision-making skills are
taken as legitimate grounds for denying his or her legal capacity and lowering
his or her status as a person before the law. Article 12 does not permit such
discriminatory denial of legal capacity, but, rather, requires that support be
provided in the exercise of legal capacity.[31]
1.89
The current PCEHR Act, by denying a person the right to manage any of
their health records as soon as the Systems Operator makes an assessment that
the person lacks the capacity to make decisions for him or herself, removes the
person's right to legal capacity.
1.90
The amendments in the bill, in requiring an authorised representative to
make reasonable efforts to ascertain the healthcare recipient's will and
preferences in relation to their My Health Record,[32]
are important in respecting the rights of persons with disabilities. However,
the design of the current legislation is such that the authorised
representative would always be exercising substitute decision-making, rather
than supported decision-making.[33] In addition, while the bill imposes an obligation on an authorised
representative to give effect to the will and preferences of the healthcare
recipient, there is nothing in the legislation that makes this requirement
binding, as there are no consequences in the legislation if the authorised
representative does not give effect to the person's will and preferences. The
statement of compatibility states that a failure of the representative to meet
these duties 'may result in their appointment being suspended or cancelled, or
access to the individual's My Health Record being blocked under the My Health
Records Rules'.[34] However, it is not clear how this would work in practice.
1.91
The use of substitute decision-making through the authorised
representative process in the bill is of particular concern from an
international human rights law perspective. As the UN Committee on the Rights
of Persons with Disabilities has explained:
Substitute decision-making regimes, in addition to being
incompatible with article 12 of the Convention, also potentially violate the
right to privacy of persons with disabilities, as substitute decision-makers
usually gain access to a wide range of personal and other information regarding
the person. In establishing supported decision-making systems, States parties
must ensure that those providing support in the exercise of legal capacity
fully respect the right to privacy of persons with disabilities.[35]
1.92
The Australian Law Reform Commission (ALRC) has identified a number of
Commonwealth laws that are not fully compliant with article 12 of the CRPD and
has made recommendations to bring legislation into line with international law.
The recommendations could relevantly inform the drafting of the bill in a
matter consistent with international law.[36]
1.93
In addition, there is no information as to how persons with disabilities
will be notified appropriately about their right to opt-out of the scheme. As
the UN Committee on the Rights of Persons with Disabilities has noted:
Lack of accessibility to information and communication and
inaccessible services may constitute barriers to the realization of legal
capacity for some persons with disabilities, in practice. Therefore, States
parties must make all procedures for the exercise of legal capacity, and all
information and communication pertaining to it, fully accessible. States
parties must review their laws and practices to ensure that the right to legal
capacity and accessibility are being realized.[37]
1.94
The committee's assessment of the automatic inclusion of the health
records of all persons with disabilities on the My Health Record register
against the Convention on the Rights of Persons with Disabilities (rights of
persons with disabilities) raises questions as to whether the automatic
inclusion of the health records of all persons with disabilities on the
register is compatible with the rights of persons with disabilities.
1.95
As set out above, automatic inclusion of the health records of
all persons with disabilities on the register engages and limits the rights of
persons with disabilities. 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 Health as to:
- whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
- whether there is a rational connection between the limitation and
that objective; and
- whether the limitation is a reasonable and proportionate
measure for the achievement of that objective, in particular whether the
opt-out model is the least rights restrictive approach and whether there are
sufficient safeguards in the legislation to protect the rights of persons with
disabilities.
Civil penalty provisions
1.96
The bill introduces a number of new civil penalty provisions to apply
when a person improperly uses or discloses personal information from the My
Health Record system or fails to give up-to-date and complete information for
the register.
1.97
For example, proposed new section 26 makes it an offence to, unless
authorised, use or disclose identifying information from the My Health Records
system. The penalty for the criminal offence is two years imprisonment or 120
penalty units (or both). Proposed new subsection 26(6) also applies a civil
penalty to the same conduct, on the basis of recklessness, with an applicable
civil penalty of 600 penalty units.
1.98
The committee considers that this measure engages and may limit the
right to a fair trial as the civil penalty provisions may be considered to be
criminal in nature under international human rights law and may not be
consistent with criminal process guarantees.
Right to a fair trial and fair
hearing rights
1.99
The right to a fair trial and fair hearing is protected by article 14 of
the ICCPR. The right applies to both criminal and civil proceedings, to cases
before both courts and tribunals. The right is concerned with procedural fairness,
and encompasses notions of equality in proceedings, the right to a public
hearing and the requirement that hearings are conducted by an independent and
impartial body.
1.100
Specific guarantees of the right to a fair trial in the determination of
a criminal charge guaranteed by article 14(1) are set out in article 14(2) to
(7). These include the presumption of innocence (article 14(2)) and minimum
guarantees in criminal proceedings, such as the right not to incriminate
oneself (article 14(3)(g)) and a guarantee against retrospective criminal laws
(article 15(1)).
Compatibility of the measure with
the right to a fair trial and fair hearing rights
1.101
Under international human rights law civil penalty provisions may be
regarded as 'criminal' if they satisfy certain criteria. The term 'criminal'
has an 'autonomous' meaning in human rights law. In other words, a penalty or
other sanction may be 'criminal' for the purposes of the ICCPR even though it
is considered to be 'civil' under Australian domestic law. If so, such
provisions would engage the criminal process rights under articles 14 and 15 of
the ICCPR.
1.102
There is a range of international and comparative jurisprudence on
whether a 'civil' penalty is likely to be considered 'criminal' for the
purposes of human rights law. The committee's Guidance Note 2 sets out some of
the key human rights compatibility issues in relation to provisions that create
offences and civil penalties.[38]
1.103
The statement of compatibility states that the civil penalty provisions
in the bill should not be classified as criminal under human rights law:
Under the civil penalty provisions, proceedings are
instituted by a public authority with statutory powers of enforcement in a
court. A finding of culpability precedes the imposition of a penalty. This
might make the penalties appear "criminal" however this is not
determinative. While the provisions are deterrent in nature, these penalties
generally do not apply to the public at large. Only a specific group of users,
being healthcare providers and other participants in the My Health Record
system with access to sensitive information will generally be impacted by these
penalties. Further, the severity of the penalties is not too high, with the
highest pecuniary penalty that can be imposed being only 600 units. This
penalty is justified as the My Health Record system deals with privacy
sensitive information and the misuse of this information needs to have
proportionate penalties to the potential damage to healthcare recipients. In
light of this analysis, the nature and application of the civil penalty
provisions suggest that they should not be classed as criminal under human
rights law.[39]
1.104
The committee considers that a penalty of up to 600 penalty units is a
substantial penalty that could result in an individual being fined up to
$108 000.[40] This is in a context where the individual made subject to the penalty may be a
healthcare provider, such as a nurse, or an administrator working for a
healthcare provider. The maximum civil penalty is also substantially more than
the financial penalty available under the criminal offence provision, which is
restricted to a maximum of 120 penalty units (or $21 600).
1.105
When assessing the severity of a pecuniary penalty the committee has
regard to the amount of the penalty, the nature of the industry or sector being
regulated and the maximum amount of the civil penalty that may be imposed
relative to the penalty that may be imposed for a corresponding criminal
offence. Having regard to these matters the committee considers that the civil
penalty provisions imposing a maximum of 600 penalty units may be considered to
be 'criminal' for the purposes of international human rights law.
1.106
The consequence of this is that the civil penalty provisions in the bill
must be shown to be consistent with the criminal process guarantees set out in
articles 14 and 15 of the ICCPR. However, civil penalty provisions are dealt
with under the civil law in Australia and a civil penalty order can be imposed
on the civil standard of proof – the balance of probabilities.
1.107
In addition, the committee notes that proposed new
section 31C of the bill provides that each civil penalty provision under
the bill is enforceable under Part 4 of the Regulatory Powers (Standard
Provisions) Act 2014. This Act provides that criminal proceedings may be
commenced against a person for the same, or substantially the same, conduct,
even if a civil penalty order has already been made against the person.[41] If the civil penalty provision is considered criminal in nature, this raises
concerns under article 14(7) of the ICCPR which provides that no one is to be
tried or punished again for an offence for which he or she has already been
finally convicted or acquitted (double jeopardy).
1.108
The committee also notes that the civil penalty and offence provisions
in the bill also allow for a reversal of the burden of proof, requiring the
defendant to bear an evidential burden in relation to the defences in the bill.
An offence provision which requires the defendant to carry an evidential or legal
burden of proof with regard to the existence of some fact will engage the
presumption of innocence because a defendant's failure to discharge the burden
of proof may permit their conviction despite reasonable doubt as to their
guilt. Neither the statement of compatibility nor the EM justifies the need for
the reversal of the burden of proof.
1.109
The statement of compatibility states that the objective of the penalty
regime is to protect the private sensitive information held on the My Health
Record system 'and the misuse of this information needs to have proportionate
penalties to the potential damage to healthcare recipients'.[42] The committee considers that the protection of private sensitive information is
a legitimate objective for the purposes of international human rights law.
However, the objective behind including civil penalties of up to 600 penalty
units (substantially more than the penalty available under the criminal offence
provision) without the usual protections available to those charged with a
criminal offence, and the reversal of the burden of proof, has not been
explained in the statement of compatibility.
1.110
The statement of compatibility also does not explain how the civil
penalty provisions, which are likely to be considered 'criminal' for the
purposes of international human rights law, are proportionate to their
objective. 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. 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.
1.111
The committee's assessment of the civil penalty provisions in the
bill against article 14 of the International Covenant on Civil and Political
Rights (right to a fair hearing) raises questions as to whether the provisions
are criminal for the purposes of international human rights law and, if so,
whether any limitation on the right to a fair hearing is justifiable.
1.112
As set out above, the civil penalty provisions engage and may
limit the right to a fair hearing. 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 Health
as to:
- whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
- whether there is a rational connection between the limitation
and that objective; and
- whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Social Security Legislation Amendment (Further Strengthening Job Seeker
Compliance) Bill 2015
Portfolio:
Employment
Introduced: House of Representatives, 10 September 2015
Purpose
1.113
The Social Security Legislation Amendment (Further Strengthening Job
Seeker Compliance) Bill 2015 (the bill) seeks to amend the Social Security
(Administration) Act 1999 (SSA Act) to:
-
withhold a job seeker's social security payment where a job
seeker refuses to enter into an Employment Pathway Plan without a reasonable
excuse for doing so, and impose an additional penalty to be deducted from the
eventual payment;
-
withhold a job seeker's social security payment where a job
seeker acts in an inappropriate manner during an appointment such that the
purpose of the appointment is not achieved without a reasonable excuse for
doing so, and impose an additional penalty to be deducted from the eventual
payment;
-
amend the instalment period from which penalties are deducted in
relation to job seekers' failure to participate in a specified activity (e.g.
work for the dole) to effect a more immediate penalty;
-
withhold a job seeker's social security payment where job search
efforts have been inadequate (with possibility of receiving full back pay once
adequate job search efforts can be proven to have resumed); and
-
remove the ability of a job seeker who has failed to accept an
offer of suitable employment without a reasonable excuse to apply to have the
eight‑week penalty period waived in lieu of undertaking additional
activities.
1.114
Measures raising human rights concerns or issues are set out below.
Suspension of benefits for inappropriate behaviour
1.115
Item 18 of the bill would amend the SSA Act to provide that a penalty
may be deducted from a job seeker's social security payment where a job seeker
acts in an inappropriate manner, without a reasonable excuse, during an
appointment such that the purpose of the appointment is not achieved.
1.116
This measure may result in individuals losing social security payments
and accordingly engages and limits the right to social security and the right
to an adequate standard of living.
Right to social
security
1.117
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.
1.118
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).
1.119
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.
1.120
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
1.121
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.
1.122
In respect of the right to an adequate standard of living, article 2(1)
of the ICESCR also imposes on Australia the obligations listed above in
relation to the right to social security.
Compatibility of the measure with
the right to social security and the right to an adequate standard of living
1.123
The statement of compatibility acknowledges that the measure engages
these rights. The statement of compatibility explains the legitimate objective
of the measure as:
...discouraging job seekers from deliberately resisting
assistance provided to them to identify and find work.[43]
1.124
A legitimate objective must address a substantial and pressing concern
and be based on empirical research or reasoning. No evidence is provided as to
the extent to which individuals on social security are frustrating job search
activities by inappropriate behaviour during appointments. On its face, the
measure pursues an objective that appears to be desirable and convenient.
Accordingly, it is questionable as to whether the measure pursues a legitimate
objective for the purposes of international human rights law.
1.125
To the extent that the measure does pursue a legitimate objective, the
measure is rationally connected to that objective as penalties for
inappropriate behaviour may encourage better behaviour during appointments.
1.126
In terms of proportionality, the statement of compatibility states that:
The measure is proportionate as protection would be added to
the compliance framework to ensure that a job seeker's behaviour can be
assessed in a fair and reasonable manner.[44]
1.127
However, none of those protections are included in the bill. The
committee's interpretation of international human rights law is that, where a
measure limits a human right, discretionary or administrative safeguards alone
are likely to be insufficient for the purpose of a permissible limitation.[45] This is because administrative and discretionary safeguards are less stringent
than the protection of statutory processes and can be amended at any time.
1.128
Inappropriate behaviour is not defined in the bill and it is unclear how
and on what basis a person's behaviour during an interview is inappropriate.
While there may be extreme cases, where it is very clear that a person is
deliberately behaving in a manner designed to frustrate an appointment, there
are also likely to be many cases where a person's behaviour is not so extreme
and a high degree of judgement is required to determine what is appropriate
behaviour and what is inappropriate behaviour. Under this bill, such judgement
is to be exercised with no statutory guidance. Moreover, many of these
appointments will be with private sector service providers, where the person
who will make the judgement as to whether inappropriate behaviour has caused an
appointment to fail is not bound by the Australian Public Service code of
conduct. In the absence of statutory guidance, the bill may result in
individuals losing social security benefits in circumstances which are unfair
or unreasonable.
1.129
The committee's assessment of the suspension of benefits for
inappropriate behaviour against article 19 and article 11 of the International
Covenant on Economic, Social and Cultural Rights (right to social
security and right to an adequate standard of living) raises questions as to
whether the limitation is justifiable.
1.130
As set out above, the removal of the suspension of benefits for
inappropriate behaviour engages and limits the right to social security
and right to 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
Employment as to:
-
whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective, in particular whether there are
sufficient safeguards in the legislation.
Removal of waivers for refusing or failing to accept a suitable job
1.131
Items 12 and 13 of the bill would make amendments to the SSA Act so that
when a job seeker refuses or fails to accept an offer of suitable employment
and has no reasonable excuse for the failure, a job seeker's payment would not
be payable for a period of eight weeks. The current ability of the department
to waive that eight week non-payment penalty would be removed by the bill.
1.132
This measure may result in individuals losing social security payments
and accordingly engages and limits the right to social security and the right
to an adequate standard of living.
Right to social
security
1.133 The right to social security is outlined above at paragraphs [1.117]
to [1.120].
Right to an
adequate standard of living
1.134
The right to an adequate standard of living is outlined above at
paragraphs [1.121] to [1.122].
Compatibility of the measure with
the right to social security and the right to an adequate standard of living
1.135
The statement of compatibility explains that the measure does limit the
right to social security and the right to an adequate standard of living and
that such limitations are justified for the purposes of international human
rights law.
1.136
The statement of compatibility states that:
...this measure has the legitimate objective of reducing the
reliance on participation payments by job seekers who have successfully shown
they are capable of obtaining suitable work.[46]
1.137
A legitimate objective must address a substantial and pressing concern
and be based on empirical research or reasoning. In terms of empirical
research, the explanatory memorandum (EM) explains that in 2009-2010, 45% of
penalties for refusing a suitable job were waived and that in 2013-14, 78% of
penalties for refusing a suitable job were waived.[47]
1.138
The EM argues that the waiver provisions act as an incentive for
non-compliance. However, no evidence is provided that the high waiver rates are
a result of the legislation requiring the waiver to be granted rather than
there being a genuine reason for the department granting the waiver in each
case. On its face, the measure pursues an objective that appears to be
desirable and convenient. Accordingly, it is questionable as to whether the
measure pursues a legitimate objective for the purposes of international human
rights law.
1.139
To the extent that the measure does pursue a legitimate objective, the
measure is rationally connected to that objective as the inability for
penalties to be waived may encourage some job seekers to take jobs assessed as
suitable where they may currently seek a waiver on the basis of hardship.
1.140
In terms of proportionality the statement of compatibility states:
Existing protections such as the reasonable excuse provisions
and safeguards for vulnerable job seekers will still apply, and the Bill will
not change the process used to make decisions as to what constitutes suitable
work. A job seeker cannot be penalised for failing to accept a job that they
are not capable of doing (or for which the employer will not provide training),
that does not meet the applicable statutory conditions, that involves
unreasonable commuting or that would aggravate any pre-existing medical
conditions.[48]
1.141
However, notwithstanding these protections, as set out in the EM, there
is a very high waiver rate of the eight week penalty for failure to accept a
suitable job applied by the department. No evidence is provided that these
waivers are applied by the department inappropriately. If the waivers are
currently applied appropriately it is foreseeable that the bill, in taking away
the department's discretion to apply a waiver, may result in undue hardship.
This is not addressed in the statement of compatibility.
1.142
Further, in order for a measure to impose a proportionate limitation on
the right to social security and right to an adequate standard of living, the
measure must be the least rights restrictive method of achieving the stated
objective. Given the high waiver rates by the department, it is possible that
measures could be introduced to reduce the waiver rate by tightening the
circumstances in which a waiver may be granted. In removing the ability of the
department to provide a waiver in any circumstance, the statement of
compatibility has not demonstrated that a less rights restrictive approach of
changing the grounds on which a waiver may be granted is not feasible or
possible. Accordingly, the statement of compatibility has not demonstrated that
the measure is proportionate for the purposes of international human rights
law.
1.143
The committee's assessment of the removal of waivers for refusing
or failing to accept a suitable job against article 19 and article 11 of
the International Covenant on Economic, Social and Cultural Rights (right
to social security and right to an adequate standard of living) raises
questions as to whether the limitation is justifiable.
1.144
As set out above, the removal of waivers for refusing or failing
to accept a suitable job engages and limits the right to social security and
right to 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
Employment as to:
Social Services Legislation Amendment (No Jab, No Pay) Bill 2015
Portfolio:
Social Services
Introduced: House of Representatives, 16 September 2015
Purpose
1.145
The Social Services Legislation Amendment (No Jab, No Pay) Bill 2015
(the bill) seeks to amend the
A New Tax System (Family Assistance) Act 1999 to provide that child care benefit, child care rebate and the Family Tax
Benefit Part A supplement will only be payable where a child fully meets the
immunisation requirements.
1.146
Measures raising human rights concerns or issues are set out below.
No exception for religious or conscientious objections
1.147
Currently the
A New Tax System (Family Assistance) Act 1999 provides
that certain family assistance payments are conditional on meeting the
childhood immunisation requirements for children at all ages. However, there
are currently exceptions where the child's parent has declared in writing that
he or she has a conscientious objection to the child being immunised. A
conscientious objection is defined as follows:
An individual has a conscientious objection to a child being
immunised if the individual's objection is based on a personal, philosophical,
religious or medical belief involving a conviction that vaccination under the
latest edition of the standard vaccination schedule should not take place.[49]
1.148
The bill would repeal this exception meaning that certain family
assistance payments would only be payable in relation to a child that has been
immunised (unless there is a medical contradiction to immunisation or
immunisation is unnecessary as the child has developed a natural immunity).
There would no longer be an exception where the parent objected to immunisation
based on their religious or personal beliefs.
1.149
The committee considers that the removal of the exemption for
conscientious objectors engages and may limit the right to freedom of thought,
conscience and religion.
Right to freedom of thought,
conscience and religion
1.150
Article 18 of the International Covenant on Civil and Political Rights
(ICCPR) protects the rights of all persons to think freely, and to entertain
ideas and hold positions based on conscientious or religious or other beliefs.
Subject to certain limitations, persons also have the right to demonstrate or
manifest religious or other beliefs, by way of worship, observance, practice
and teaching. The right includes the right to have no religion or to have
non-religious beliefs protected.
1.151
The right to freedom of thought, conscience and religion not only
requires that the state should not, through legislative or other measures,
impair a person's freedom of thought, conscience and religion, but that the
state should also take steps to prevent others from coercing persons into
having, or changing, beliefs or religions.
1.152
The right also requires the state to respect the convictions of parents
and guardians of children in the provision of education. This allows public
schools to teach particular religions or beliefs, but only if it is taught in a
neutral and objective way or there is a non-discriminatory alternative for
those children whose parents or guardians do not wish them to be educated in
that religion or belief.
1.153
The right to hold a religious or other belief or opinion is an absolute
right. However, the right to exercise one's belief can be limited given its
potential impact on others. The right can be limited as long as it can be
demonstrated that the limitation is reasonable and proportionate and is
necessary to protect public safety, order, health or morals or the rights of
others. The right to non-discrimination often intersects with the right to
freedom of religion and each right must be balanced against one another.
Compatibility of the measure with
the right to freedom of thought, conscience and religion
1.154
The statement of compatibility acknowledges that the right to freedom of
thought, conscience and religion is engaged by this measure as families will no
longer be eligible to receive certain levels of family assistance where they
have a conscientious or religious belief that prevents them from immunising
their children. However, it notes that article 18 of the ICCPR permits
limitations on the right if necessary to protect public health or the
fundamental rights and freedoms of others and states:
The objection to vaccination can limit the rights of others
to physical and mental health. As the most effective method of preventing
infectious diseases, vaccination provides a necessary protection of public
health.
Further, these families continue to have the right to uphold
their conscientious or religious belief by electing not to receive child care
benefit, child care rebate or the family tax benefit Part A supplement.[50]
1.155
The statement of compatibility also states that the purpose of the bill
is to 'encourage parents to immunise their children' and notes that in so doing
the bill promotes the right to health as vaccination is recognised to be the
most effective method of preventing infectious diseases and providing
protection to both the vaccinated individuals and the wider community.
[51]
1.156
The committee accepts that the objective of the bill, in encouraging
parents to immunise their children and thereby prevent the spread of infectious
diseases is a legitimate objective for the purposes of international human
rights law.
1.157
However, no information is provided in the statement of compatibility as
to whether the measures in the bill are rationally connected to that objective.
In other words, no information is provided to explain whether the measures
would be likely to be effective in achieving the objective of encouraging
vaccination. It is not clear to the committee whether these particular measures
which result in certain family assistance payments being withheld would be
likely to encourage persons with strongly held objections to vaccinate their
child.
1.158
In addition, little information is provided in the statement of compatibility
as to whether the measures are proportionate to their stated objective. In
determining whether a measure is proportionate regard must be had to whether
there are any less rights restrictive options available to achieve that
objective. No information is given as to whether other less restrictive
options, such as education campaigns or support for parents to encourage them
to vaccinate their child, have been explored.
1.159
The committee's assessment of the removal of the conscientious
objector exemption against article 18 of the International Covenant on Civil
and Political Rights (right to freedom of thought, conscience and
religion) raises questions as to whether the limitation is justifiable.
1.160
As set out above, the removal of the conscientious objector
exemption engages and limits the right to freedom of thought, conscience and
religion. 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 a rational connection between the limitation
and the stated objective; and
- whether the limitation is a reasonable and proportionate
measure for the achievement of that objective, in particular that it is the
least rights restrictive approach to achieving that objective.
Advice only
1.161
The committee draws the following bills and instruments to the attention
of the relevant minister or legislation proponent on an advice only basis. The
committee does not require a response to these comments.
Social Services Legislation Amendment (Youth Employment) Bill 2015
Portfolio:
Social Services
Introduced:
House of Representatives, 16 September 2015
Purpose
1.162
The Social Services Legislation Amendment (Youth Employment) Bill 2015
(the bill) seeks to amend the Social Security Act 1991 and the Social
Security (Administration) Act 1999 to:
- amend the ordinary waiting period for working age payments;
- remove access to Newstart Allowance and Sickness Allowance to 22
to 24 year olds and replace these benefits with access to Youth Allowance
(Other);
- provide for a four-week waiting period for certain persons aged
under 25 years applying for Youth Allowance (Other) or Special Benefit;
and
- introduce new requirements and activities for job seekers to
complete during the above four-week waiting period as part of new program
'RapidConnect Plus'.
1.163
Measures raising human rights concerns or issues are set out below.
Background
1.164
The bill reintroduces a number of measures previously included in the
Social Services Legislation Amendment (Youth Employment and Other Measures)
Bill 2015 (the previous bill), which itself reintroduced measures previously
contained within 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).
1.165
The committee reported on the No. 1 bill and No. 2 bill in its Ninth
Report of the 44th Parliament,[52] and concluded its examination of the No. 2 bill in its Twelfth Report of the
44th Parliament.[53] In that report, the committee requested further information from the Minister
for Social Services regarding measures contained within the No. 1 bill.[54]
1.166
The committee then considered the No. 4 bill in its Fourteenth Report
of the 44th Parliament, and in the Seventeenth Report of the
44th Parliament concluded its consideration of the No. 1 bill
and No. 4 bill.[55]
1.167
The committee considered the previous bill in its
Twenty-fourth 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.
[56]
1.168
Noting that the previous bill had been negatived in the Senate on
9 September 2015, the committee concluded its consideration in its Twenty-eighth
Report of the 44th Parliament.[57]
Schedule 2 – Age requirements for various Commonwealth payments
1.169
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.
1.170
The committee examined this measure in its previous analysis, and
considered 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
1.171
The right to equality and non-discrimination is protected by articles 2
and 26 of the International Covenant on Civil and Political Rights
(ICCPR).
1.172
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.
1.173
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or religion),
[58] which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.
[59] 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.
[60]
Compatibility of the measure with
the right to equality and non-discrimination
1.174
The changes to the threshold for Newstart eligibility in Schedule 2 of
the bill reintroduce measures contained within the No. 2 bill, the No. 4 bill
and the previous bill. The statement of compatibility for the bill does not
identify the measures as engaging and potentially limiting the right to
equality and non-discrimination.
1.175
As discussed in previous analysis in the committee's
Ninth Report of
the 44th Parliament,
Twelfth Report of the 44th Parliament,
Twenty-fourth Report of the 44th Parliament and
Twenty-eighth Report of the 44th Parliament, the measure
clearly engages the right to equality and non-discrimination as by reducing
access to the amount of social security entitlements for persons of a
particular age, the measure directly discriminates against persons of this age
group.
[61]
1.176
The committee notes that it has previously commented on its expectation
that where a measure that it has 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. It was on the basis of
the further information provided by the Minister for Social Services that the
committee was previously able to conclude that the measure was compatible with
the right to equality and non-discrimination. This information has again not
been provided in the statement of compatibility for the new bill.
1.177
As the statement of compatibility does not identify the measure as
engaging and limiting the right to equality and non-discrimination despite the
minister's previous dialogue with the committee on the measure, the scrutiny
dialogue between the committee and proponents of legislation is less effective.
1.178
Accordingly, the committee reiterates its above comments and
concludes its consideration of the matter on the basis of the previous
additional information provided by the Minister for Social Services.
Schedule 3 – Income support waiting periods and Schedule 4 – Other
amendments
1.179
Schedule 3 of the bill would introduce a requirement 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.
1.180
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. The new bill
also has an additional exemption where a person may need to be reassessed on
the basis of new or additional information being provided, leading to that
person being classified as requiring a certain level of employment services or
disability employment services.
1.181
The committee considered previously that the income support waiting
periods engage and limit the rights to social security and an adequate standard
of living.
Right to social security
1.182
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.
1.183
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).
1.184
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.
1.185
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
1.186
The right to an adequate standard is guaranteed by article 11(1) of the
ICESCR, and requires state parties to take steps to ensure the availability, adequacy
and accessibility of food, clothing, water and housing for all people in
Australia.
1.187
In respect of the right to an adequate standard of living, article 2(1)
of the ICESCR also imposes on Australia the obligations listed above in
relation to the right to social security.
Compatibility of the measure with
the rights to social security and an adequate standard of living
1.188
The introduction of the four-week waiting period in Schedule 3 of the
bill reintroduces measures contained within the No. 2 bill, the No. 4 bill and
the previous bill (amended in the previous bill from a 26-week waiting period).
1.189 The committee accepted in relation to the previous bill that the
measure pursues a legitimate objective and that the measure is rationally
connected to that objective, but sought further information from the minister
in relation to the proportionality of the measure. Of particular concern to the
committee was whether the measure was the least rights restrictive approach.
1.190 The minister's response to the committee's questions regarding the
previous bill provided advice that the measure specifically targets those young
people who are job ready and that there are important protections for parents
and those assessed as unable to work who will be exempt from the measure. However,
the measure will apply to all individuals assessed as job ready (in Stream A of
jobactive) and there will be no individual assessment of each job seeker's
engagement with seeking work, nor an individual assessment of their ability to
find jobs. The committee also noted that currently, there is a youth
unemployment rate of 13.4 per cent which suggests there are more job seekers
than jobs available. Evidence was not provided in the minister's response to
confirm that all jobseekers will be eligible and able to immediately engage
with education and immediately gain income support.
1.191 Further, the measure does not allow for an individual assessment of
the individual's capacity to live without social security support for four
weeks and there is no discretion that would enable Centrelink to waive the
waiting period if the individual does not meet the set exemptions. In the
absence of these protections, the committee previously considered that the
measure cannot be said to be the least rights restrictive means of achieving a
legitimate objective and therefore does not impose a proportionate limitation
on the right to social security.
1.192 In relation to the right to an adequate standard of living, the
minister's further information in relation to the previous bill suggested that
46% of young people do not live at home and are thus not fully supported by
their parents. The majority of these would appear to be in private rental
accommodation of some sort. The committee noted that it is not clear how those
young people will meet the costs of housing during the waiting period and meet
other basic living costs to provide an adequate standard of living.
1.193 The committee also noted that the additional funding provided to
Emergency Relief providers would not be able to ensure that all individuals
affected by the measure will be able to maintain an adequate standard of
living.
1.194
The committee therefore considers that the measure is not proportionate
as it does not include an individual assessment for each person affected by the
measure nor does it provide safeguards to ensure that no individual is left
unable to meet their basic needs during the waiting period.
1.195
The committee notes that Schedule 4 of
the bill also introduces new measures intended to complement the income support
waiting period in Schedule 3. These measures would require certain job seekers
to participate in a new programme, RapidConnect Plus, during the four-week
waiting period in order to receive social security payments at the end of the
waiting period. RapidConnect Plus would require job seekers who have been
classified as not having significant barriers to employment to participate in a
number of activities during this period, including attending interviews with
jobactive providers, entering into a Job Plan and undertaking job searches. If
job seekers do not complete these activities without a reasonable excuse, the
waiting period may be further extended beyond the four-week period.
1.196
The committee considers that as the new
measures under Schedule 4 of the bill extend the obligations required of job
seekers under Schedule 3 of the bill, they potentially compound the existing
limitations on the right to social security and the right to an adequate
standard of living. This is especially the case as the requirements in Schedule
4 would require job seekers to undertake activities that may result in the job
seeker incurring costs (such as travel and clothing) while they are receiving
no social security benefits.
1.197
The committee therefore reiterates its comments in relation to
these measures in the previous bill, particularly, that its assessment of the
proposed income support waiting period for young people aged under 25 against
articles 9 and 11 of the International Covenant on Economic, Social and
Cultural Rights (right to social security and right to an adequate standard of
living) raises questions as to whether the changes are justifiable under
international human rights law.
1.198
As set out above, the proposed income support waiting periods
engage and limit the right to social security and right to an adequate standard
of living under articles 9 and 11 of the International Covenant on
Economic, Social and Cultural Rights. Some committee members consider that the
measure has not been justified as a proportionate limitation on those rights.
Accordingly, those members of the committee consider that the measure is
incompatible with the right to social security and the right to an adequate
standard of living.
1.199 Other members of the committee consider that the limitation on the
right to social security and right to an adequate standard of living under
articles 9 and 11 of the International Covenant on Economic, Social and
Cultural Rights has been justified and further consider that incentivising
young people to find work is an important policy objective.
Right to equality and
non-discrimination
1.200
The right to equality and non-discrimination is protected by articles 2
and 26 of the ICCPR. More information is provided above at paragraphs [1.171]
to [1.173].
Compatibility of the measure with
the right to equality and non-discrimination
1.201
The committee previously concluded that the measure (in relation to the
No. 2 bill) was incompatible with the right to equality and
non-discrimination on the basis of age (direct discrimination).[62] In its analysis in relation to the previous bill, the committee again
considered that the income support waiting periods for young people aged under
25 raise questions as to whether the measure is justifiable under international
human rights law.
1.202
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 'those subjected to a waiting period are young enough
to reasonably draw on family support to assist them during the waiting period'.[63]
1.203
As noted in its analysis on the previous bill, the committee considers
that 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 directly discriminates against
persons under 25 years of age.
1.204 While the committee had accepted that the measure pursues a
legitimate objective and that the measure is rationally connected to that
objective, it considered that there were issues in relation to the
proportionality of the measure.
1.205
The statement of compatibility states that 43 per cent of young people
receiving unemployment benefits are living at home with their parents, compared
with 7 per cent of those aged over 25.[64] This shows there is some evidence that the measure is targeted at young people,
taking into account their ability to seek support from their parents. However,
this also shows that the majority of young people on unemployment payments are
not living at home (and are thus likely to have private rental costs) and are
less likely to be able to rely on their parents for support during the waiting
period. These figures also do not show whether a person living at home with
their parents are doing so on a rent-free basis or whether such persons might
be financially supporting their family members.
1.206
A 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. The statement of compatibility for the bill, along with
further information provided by the minister in relation to the previous bill,
do not demonstrate that nearly all, or even a majority, of individuals aged 25
or under will be able to rely on their parents for economic support. As such,
the measure is not sufficiently targeted to impose a proportionate limitation
on the right to equality and non-discrimination based on age.
1.207
The committee therefore reiterates its comments in relation to
these measures in the previous bill, particularly, that its assessment of the
proposed income support waiting periods for young people aged under 25 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 changes are justifiable under international human rights law.
1.208
As set out above, the proposed income support waiting period
engages and limits the right to equality and non-discrimination as the
four-week waiting period is applied based on a person's age. Some committee
members consider that the measure has not been justified as a proportionate
limitation on this right. Accordingly, those committee members consider that
the measure is incompatible with the right to equality and non‑discrimination.
1.209 Other members of the committee consider that the limitation on the
right to equality and non-discrimination has been justified and further
consider that incentivising young people to find work is an important policy
objective.
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