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 23 to 26 March 2015, legislative instruments received from 6 March to 9 April 2015, and legislation previously deferred by the committee.

1.2        The report also includes the committee's consideration of responses arising from previous reports.

1.3         The committee generally takes an exceptions based approach to its examination of legislation. The committee therefore comments on legislation where it considers the legislation raises human rights concerns, having regard to the information provided by the legislation proponent in the explanatory memorandum (EM) and statement of compatibility.

1.4        In such cases, the committee usually seeks further information from the proponent of the legislation. In other cases, the committee may draw matters to the attention of the relevant legislation proponent on an advice-only basis. Such matters do not generally require a formal response from the legislation proponent.

1.5        This chapter includes the committee's examination of new legislation, and continuing matters in relation to which the committee has received a response to matters raised in previous reports.

Bills not raising human rights concerns

1.6        The committee has examined the following bills and concluded that they do not raise human rights concerns.

• Charter of Budget Honesty Amendment (Regional Australia Statements) Bill 2015;
• Food Standards Amendment (Fish Labelling) Bill 2015; and
• Tax and Superannuation Laws Amendment (Employee Share Schemes) Bill 2015.

1.7        Bills in this list may include bills that do not engage human rights, bills that contain justifiable (or marginal) limitations on human rights and bills that promote human rights and do not require additional comment.

• Communications Legislation Amendment (SBS Advertising Flexibility and Other Measures) Bill 2015;
• Customs and Other Legislation Amendment (Australian Border Force) Bill 2015; and
• Judiciary Amendment Bill 2015.

Instruments not raising human rights concerns

1.8        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.

1.9        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.

1.10      The committee has also concluded its examination of the following previously deferred regulations and makes no comment on the instruments:

• Criminal Code (Terrorist Organisation—Ansar al-Islam) Regulation 2015 [F2015L00234];
• Criminal Code (Terrorist Organisation—Islamic Movement of Uzbekistan) Regulation 2015 [F2015L00235];
• Criminal Code (Terrorist Organisation—Jaish-e-Mohammad) Regulation 2015 [F2015L00233]; and
• Criminal Code (Terrorist Organisation—Lashkar-e Jhangvi) Regulation 2015 [F2015L00236].[2]

Deferred bills and instruments

1.11      The committee has deferred its consideration of the Criminal Code Amendment (Animal Protection) Bill 2015 (deferred 3 March 2015).

1.12      As previously noted, the committee continues to defer 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.[3]

1.13      The following instruments have been deferred in connection with the committee's ongoing examination of the autonomous sanctions regime and the Charter of the United Nations sanctions regime:

• Autonomous Sanctions (Designated and Declared Persons – Former Federal Republic of Yugoslavia) Amendment List 2014  [F2014L00694];
• Autonomous Sanctions (Designated and Declared Persons - Former Federal Republic of Yugoslavia) Amendment List 2014 (No. 2) [F2014L00970] (deferred 2 September 2014);
• Autonomous Sanctions (Designated and Declared Persons – Former Federal Republic of Yugoslavia) Amendment List 2015 (No. 1) [F2015L00224] (deferred 24 March 2015);
• Autonomous Sanctions (Designated Persons and Entities – Democratic People's Republic of Korea) Amendment List 2015 (No. 2) [F2015L00216] (deferred 24 March 2015);
• Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Democratic People's Republic of Korea) Amendment List 2013 [F2013L02049] (deferred 11 February 2014);
• Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Democratic People's Republic of Korea) Amendment List 2015 [F2015L00061] (deferred 3 March 2015);
• Autonomous Sanctions (Designated Persons and Entities and Declared Persons - Iran) Amendment List 2013 (No. 1) [F2013L01312] (deferred 10 December 2013);
• Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Iran) Amendment List 2015 (No. 1) [F2015L00227] (deferred 24 March 2015);
• Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Libya) Amendment List 2015 (No. 1) [F2015L00215] (deferred 24 March 2015);
• Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Syria) Amendment List 2015 (No. 1) [F2015L00217] (deferred 24 March 2015);
• Autonomous Sanctions (Designated Persons and Entities and Declared Persons - Ukraine) List 2014 [F2014L00745];
• Autonomous Sanctions (Designated Persons and Entities and Declared Persons - Ukraine) Amendment List 2014 [F2014L01184] (deferred 24 September 2014);
• Autonomous Sanctions (Designated Persons and Entities and Declared Persons - Zimbabwe) Amendment List 2014 [F2014L00411];
• Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Zimbabwe) Amendment List 2015 (No. 1) [F2015L00218] (deferred 24 March 2015);
• Autonomous Sanctions Amendment (Ukraine) Regulation 2014 [F2014L00720];
• Charter of the United Nations (Sanctions - Democratic People's Republic of Korea) Amendment Regulation 2013 (No. 1) [F2013L01384] (deferred 10 December 2013);
• Charter of the United Nations (Sanctions – Yemen) Regulation 2014 [F2014L00551];
• Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2014 (No. 2) [F2014L00568];
• Charter of the United Nations Legislation Amendment (Central African Republic and Yemen) Regulation 2014 [F2014L00539];
• Charter of the United Nations Legislation Amendment (Sanctions 2014 Measures No. 1) Regulations 2014 [F2014L01131]; and
• Charter of the United Nations Legislation Amendment (Sanctions 2014 – Measures No. 2) Regulation 2014 [F2014L01701] (deferred 3 March 2015).

Australian Border Force Bill 2015

Portfolio: Immigration and Border Protection
Introduced: House of Representatives, 25 February 2015

Purpose

1.14      The Australian Border Force Bill 2015 (the bill) provides the legislative framework for the establishment of the Australian Border Force (ABF) within the Department of Immigration and Border Protection (the department), including establishing the role of the Australian Border Force Commissioner (ABFC), from 1 July 2015.

1.15      Measures raising human rights concerns or issues are set out below. 

Setting of essential qualifications for employment within the Australian Border Force

1.16      Section 26 of the bill would give the ABFC the power to issue written directions in connection with the administration of the ABF. Section 26(2) sets out that the directions may relate to the essential qualification of workers and contractors working in the ABF. Subsection 26(3) provides that these essential qualifications may relate to a number of characteristics, including 'physical or psychological health or fitness'.

1.17      Similarly, section 55 of the bill would give the Secretary of the Department of Immigration and Border Protection (the secretary) the power to issue written directions in connection with the administration of the department. Under section 55(2) the directions may relate to the essential qualification of workers and contractors working in the department. Subsection 55(3) provides that these essential qualifications may relate to a number of characteristics, including 'physical or psychological health or fitness'.

1.18      The setting of essential qualifications may engage the right to equality and non-discrimination. Such qualifications may be more difficult for certain individuals to meet because of a protected attribute such as gender or disability. In addition, as the position in the ABF, and the department more broadly, are public service positions the setting of essential qualifications engages the right to take part in public affairs as well as rights at work.

Right to equality and non-discrimination

1.19      The right to equality and non-discrimination is protected by articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR).

1.20      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.

1.21      The ICCPR defines 'discrimination' as a distinction based on a personal attribute (for example, race, sex or on the basis of disability),[4] which has either the purpose (called 'direct' discrimination), or the effect (called 'indirect' discrimination), of adversely affecting human rights.[5] 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.[6]

1.22      The Convention on the Rights of Persons with Disabilities (CRPD) further describes the content of these rights, describing the specific elements that States 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.

1.23      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.

1.24      Not every differentiation of treatment will constitute discrimination if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the ICCPR.

Compatibility of the measures with the right to equality and non-discrimination

1.25      The committee notes that the giving the ABFC and the Secretary the power to set the essential criteria for employment may not necessarily lead to discrimination in practice. The committee also notes that the powers are modelled on the existing powers of the current CEO of Customs.

1.26      The statement of compatibility states:

[t]he setting of essential qualifications in the performance of duties ... does not represent discrimination as these qualifications are legitimately required for the performance of work and are specific to the role.[7]

1.27      The statement of compatibility also states that:

The Department will apply requirements for essential qualifications according to an assessment of the physical, psychological, professional and technical requirements of a positon and ensure that such requirements are reasonable in the circumstances.[8]

1.28      The committee notes that the statement of compatibility does not acknowledge the obligation to make reasonable accommodations (adjustments) for persons with disabilities so that they are not unreasonably excluded from accessing employment where they would be able to fulfil the requirements of a position provided adjustments are made.

1.29      The committee considers that the provisions in the bill grant wide discretions to the ABFC and Secretary in determining the essential criteria of any job in the ABF and the department more broadly. In addition, any written direction by the ABFC or Secretary setting out the essential criteria will not be a legislative instrument and thus not subject to parliamentary scrutiny. Accordingly, the committee considers that it is unable to assess whether determinations of essential criteria for jobs in the ABF and the department might be discriminatory in practice.

Right to take part in public affairs

1.30      Article 25 of the ICCPR protects the right to take part in public affairs. Article 25 provides the right to take part in public affairs and elections, guarantees the right of citizens to stand for public office, to vote in elections and to have access to positions in public service.

1.31      The right to have access to positions in the public service is based on general terms of equality and principles of merit.  The term 'public service' applies to all administrative positions within the executive, judiciary and legislature and other areas.

1.32      As with most rights, the right to take part in public affairs is not absolute and may be limited if it is reasonable and proportionate to do so. There may be reasonable limits on the right to vote, such as age restrictions. It is considered unreasonable to restrict the right to vote on grounds of physical disability, party membership or to impose literacy, educational or property requirements.

Compatibility of the measures with the right to take part in public affairs

1.33      As set out above, as positions in the ABF and the department are public service positions, the setting of essential qualifications engages the right to take part in public affairs. Provided those qualifications are reasonable and necessary there would be no limitation on the right to take part in public affairs.

1.34      As set out above, in relation to the right to equality and non-discrimination, the provisions in the bill grant wide discretions to the ABFC and secretary in determining the essential criteria of any job in the ABF and the department respectively. In addition, any written direction by the ABFC or secretary setting out the essential criteria will not be a legislative instrument and thus not subject to parliamentary scrutiny. Accordingly, the committee is unable to assess whether determinations of essential criteria for jobs in the ABF and the department are appropriate and do not impose any unnecessary barrier to access to jobs in the public service.

Right to just and favourable conditions of work

1.35     The right to work and rights in work are protected by articles 6(1), 7 and 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).^[9]

1.36     The UN Committee on Economic, Social and Cultural Rights has stated that the obligations of state parties to the ICESCR in relation to the right to work include the obligation to ensure individuals their right to freely chosen or accepted work, including the right not to be deprived of work unfairly, allowing them to live in dignity. The right to work is understood as the right to decent work providing an income that allows the worker to support themselves and their family, and which provides safe and healthy conditions of work. The right to work includes the right to equal opportunity for advancement.

1.37     Under article 2(1) of the ICESCR, Australia has certain obligations in relation to the right to work. These include:

• the immediate obligation to satisfy certain minimum aspects of the right; the obligation not to unjustifiably take any backwards steps (retrogressive measures) 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; and
• the right to work may be subject only to such limitations as are determined by law and compatible with the nature of the right, and solely for the purpose of promoting the general welfare in a democratic society.

Compatibility of the measures with the right to just and favourable conditions of work

1.38      The right to just and favourable conditions includes the right to access promotions on an equal and non-discriminatory basis. As set out above, the bill would give the ABFC and the Secretary the power to set essential qualifications for position within the ABF and the department. Provided those qualifications are reasonable and necessary there would be no limitation on the right to just and favourable conditions at work.

1.39      As set out above in relation to the right to equality and non-discrimination, the provisions in the bill grant wide discretions to the ABFC and the Secretary in determining the essential criteria of any job in the ABF and the department. In addition, any written direction by the ABFC setting out the essential criteria will not be a legislative instrument and thus not subject to parliamentary scrutiny. Accordingly, the committee is unable to assess whether determinations of essential criteria for jobs in the ABF are appropriate and do not impose any unnecessary barrier to access to promotions or career advancement.

1.40      Accordingly, the committee recommends that the essential qualifications for positions within the ABF and the Department for Immigration and Border Protection should be set out in regulations or legislative rules to ensure that those qualifications are subject to parliamentary scrutiny, in particular in relation to the right to equality and non-discrimination, the right to take part in public affairs and the right to just and favourable conditions of work.

Requiring immigration and border protection workers to complete an organisation suitability assessment

1.41      Section 55 of the bill would give the Secretary the power to issue written directions in connection with the administration of the department. Under section 55(4) the directions may relate to the imposition of organisational suitability assessments (OSA) on immigration and border protection staff. Whilst not specifically mentioned in the legislation, it would appear that section 26 of the bill would also give the ABFC the power to issue written directions requiring completion of an OSA, as the power to give directions is unlimited.

1.42      The statement of compatibility explains what an OSA might be:

The OSA is based on the Australian Standards AS: 4811-2006: Employment Screening... OSAs seek to identify professional integrity risks based on a person's character and the detection of any criminal associations. This will help to ensure employees employed or engaged by the Department, are suitable to work in, or access information held by the Department.[10]

1.43      The statement of compatibility states that the requirement to undertake an OSA engages the right to freedom of assembly and association and the right to privacy, noting:

The OSA may require IBP workers to declare any family, friends or associates whose activities, for example a criminal history or associations with organised crime or an Outlaw Motorcycle Gang, may be relevant to the assessment of the worker's organisational suitability and the assessment of the worker's honesty, integrity and trustworthiness....

1.44      As the committee has little information about the type of matters that will be included in an OSA, the committee considers that more information is required to determine whether the imposition of an OSA engages and limits rights, including the type and nature of information required to be disclosed as part of the assessment.

1.45      The committee also considers that clarification as to who will be subject to the OSA is required. The statement of compatibility suggests that the OSA would be a requirement for all immigration and border protection workers. The committee notes that no justification for extending the OSA beyond the ABF to all immigration and border protection workers has been provided. It is unclear why such assessments are required across the department when such assessments are not routinely applied in other Commonwealth departments.

1.46      Accordingly, the committee seeks further information as to the content and nature of any proposed OSA, including the information required to be disclosed as part of the assessment, which individuals will be required to complete the OSA and the consequences of an adverse OSA for that individual's employment. In light of this, the committee seeks further information as to the human rights compatibility of imposing an OSA requirement under the bill.

Alcohol and drug testing of immigration and border protection workers

1.47      Part 5 of the bill sets out the legislative framework for the testing of immigration and border protection workers for the presence of drugs and alcohol. The committee considers that testing workers for drugs and alcohol engages and limits the right to privacy.

Right to privacy

1.48      Article 17 of the ICCPR prohibits arbitrary or unlawful interferences with an individual's privacy, family, correspondence or home. The right to privacy includes protection of our physical selves against invasive action, including:

• the right to personal autonomy and physical and psychological integrity, including respect for reproductive autonomy and autonomy over one's own body (including in relation to medical testing);
• the prohibition on unlawful and arbitrary state surveillance.

Compatibility of the measures with the right to privacy

1.49      The statement of compatibility acknowledges that the drug and alcohol testing regime engages the right to privacy. The statement of compatibility states that the regime serves a number of legitimate objectives including:

• ensuring that immigration and border protection workers are not seen to condone drug importation; and
• promoting a drug and alcohol free work place.[11]

1.50      The committee agrees that drug and alcohol free workplaces are particularly important in a law enforcement context and that these provisions largely mirror those that currently apply to customs workers. The committee considers that the measures have a legitimate objective and that the measures are rationally connected to that objective, in that a testing regime may encourage compliance and otherwise provide the evidence to address failures to comply with the regime.

1.51      The committee considers that the statement of compatibility has not demonstrated that the regime is proportionate to that objective, in that the regime's coverage appears overly broad and there is an absence of sufficient safeguards in the legislation.

1.52      The regime would apply to all immigration and border protection workers and not just those engaged in the ABF. Whilst drug and alcohol testing is not uncommon for law enforcement agencies, it would seem unusual for such a regime to apply across a public service department. In this respect, the committee notes that it is not proposed to apply drug and alcohol testing to other public service departments or agencies. It is not clear, on the basis of the information provided in the statement of compatibility, why immigration workers not engaged in the ABF should be subject to such a regime.

1.53      In terms of safeguards, the committee welcomes the department's stated intention to implement drug testing processes in line with the Australian Standards and use evidentiary breath analysing instruments which are recognised by Australian courts of law.[12] The committee also welcomes the department's stated intention to develop instructions and guidelines which will include measures to safeguard the privacy of individuals.[13]

1.54      However, the committee notes that the bill largely leaves the details of the alcohol and drug testing regime to regulations. The rules will establish how drug and alcohol tests will be conducted, the procedure for managing test results, and the keeping and destruction of records. The committee notes that the legislation does not include limitations on the rule making powers such that the testing has to be done in the least personally intrusive manner or requiring that records be destroyed after a certain period of time. The rules also permit the ABFC or secretary to declare, by legislative instrument, any drug as a prohibited drug. This enables the ABFC or secretary to expand on the drugs that are prohibited for immigration and border protection workers beyond those that are defined as a narcotic substance. No limitation is placed on this power, such as a requirement that the ABFC or secretary must be satisfied that the drug is illegal and/or has a demonstrated deleterious effect on an individual's ability to perform their functions as an immigration and border protection worker.

1.55      The committee considers that the imposition of a drug and alcohol testing regime across the Department of Immigration and Border Protection engages and limits the right to privacy. As noted above, the statement of compatibility has not sufficiently justified this limitation for the purpose of international human rights law. The committee therefore requests the advice of the Minister for Immigration and Border Protection as to whether the measure is a proportionate means of achieving the stated objective, particularly whether there are effective safeguards over the measures.

Exemption of Fair Work Act where an immigration or border protection worker is terminated for serious misconduct

1.56      Part 4 of the bill provides that if the secretary terminates the employment of an APS employee in the department and the secretary or the ABFC reasonably believes that the employee's conduct or behaviour amounts to serious misconduct, the secretary or the ABFC may make a declaration to that effect.  The effect of the declaration is that provisions of the Fair Work Act 2009 dealing with unfair dismissal, and notice of termination or payment in lieu, will not apply to the APS employee. These committee considers that these measures engage and limit the right to just and favourable conditions at work.

Right to just and favourable conditions of work

1.57      The right to work and rights in work are protected by articles 6(1), 7 and 8(1)(a) of the ICESCR.^[14] More information is provided at paragraphs [1.35]-[1.37] above.

Compatibility of the measures with the right to just and favourable conditions of work

1.58      The statement of compatibility notes that the provisions in Part 4 of the bill engage and limit the right to just and favourable conditions at work. The statement of compatibility does not specifically and explicitly set out the legitimate objective of the measures. The statement of compatibility does, however, explain that:

Serious misconduct has the potential to put at risk the protection of the Australian border, and adversely impact the carriage of the Department's law enforcement responsibilities and damage the Department's reputation. It also places at risk the safety and welfare of Departmental employees and strategic partners. Therefore in instances where serious misconduct is reasonably suspected in terms of an employee's conduct or behaviour, swift action must be taken to both discipline those involved and to demonstrate such behaviour will not be tolerated.[15]

1.59      The committee agrees with the statements. However, the committee notes that the statement of compatibility does not explain how the provisions of the Fair Work Act 2009 relating to unfair dismissal may limit the ability of the department to carry out its functions effectively. 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,^[16] 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'.^[17] 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.

1.60      The committee considers that excluding provisions of the Fair Work Act engages and limits the right to just and favourable conditions of work. The committee considers that the statement of compatibility has not explained the legitimate objective of the measure. The committee therefore seeks the advice of the Minister for Immigration and Border Protection as to whether Part 4 of the bill is  compatible with the right to just and favourable conditions of work, and particularly:

• whether the proposed changes are aimed at achieving a legitimate objective;
• whether there is a rational connection between the limitation and that objective; and
• whether the limitation is a reasonable and proportionate measure for the achievement of that objective.

Power to delay resignation to complete investigation into serious misconduct

1.61      Part 3 of the bill would give the secretary or the ABFC the power to delay an employee's resignation by up to 90 days in circumstances where the employee may have engaged in serious misconduct, to allow further investigation of that conduct.

1.62      These measures engage and limit the right to just and favourable conditions at work because this limits an employee's ability to determine their date of termination. It may limit their ability to obtain alternative employment in circumstances where they are technically still employed in the department.

Right to just and favourable conditions of work

1.63      The right to work and rights in work are protected by articles 6(1), 7 and 8(1)(a) of the ICESCR.^[18] More information is provided at paragraph [1.35] to [1.37] above.

Compatibility of the measures with the right to just and favourable conditions of work

1.64      The statement of compatibility notes that the provisions in Part 3 of the bill engage and limit the right to just and favourable conditions at work. The statement of compatibility does not specifically and explicitly set out the legitimate objective of the measures. The statement of compatibility does, however, explain that:

The ability of the Secretary of my Department or the ABF Commissioner to substitute the date of effect of resignation in circumstances where it is alleged that an employee has engaged in, or is being investigated for serious misconduct and has provided notice of his or her resignation, is considered an important demonstration to both staff, the Government and the wider community of the Department's commitment to professionalism and high standards of integrity and its unwillingness to tolerate conduct that threatens these values.[19]

1.65      While the intention behind the provisions may be considered important, 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,^[20] 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'.^[21] 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.

1.66      The committee considers that giving the secretary and the ABFC the power to delay resignation to complete an investigation into serious misconduct engages and limits the right to just and favourable conditions of work. The committee considers that the statement of compatibility has not explained the legitimate objective of the measure. The committee therefore seeks the advice of the Minister for Immigration and Border Protection as to whether Part 3 of the bill is compatible with the right to just and favourable conditions of work, and particularly:

• whether the proposed changes are aimed at achieving a legitimate objective;
• whether there is a rational connection between the limitation and that objective; and
• whether the limitation is a reasonable and proportionate measure for the achievement of that objective.

Mandatory reporting of immigration workers associations with known criminals

1.67      Section 26 of the bill would give the ABFC the power to issue written directions in connection with the administration of the ABF. Similarly, section 55 of the bill would give the secretary the power to issue written directions in connection with the administration of the department. The statement of compatibility states that this would include a direction that immigration and border protection workers 'declare associations and other relevant information.'^[22] The statement of compatibility indicates that the department will require workers to disclose associations with criminals and/or those involved in misconduct.

1.68      The statement of compatibility suggests that this engages the rights to freedom of assembly and association and the right to privacy and reputation. From the limited amount of information in the statement of compatibility, and the EM more generally, as to the nature of the proposed disclosure requirement, the committee agrees that such a requirement may engage and limit these rights. Such a requirement may also engage the right to the protection of family provided by articles 17 and 23 of the ICCPR and article 10 of the ICESCR. This is because those associations immigration and border protection workers may be required to declare may extend to family members. 

1.69      In order to assess the compatibility of a direction that may require immigration and border protection workers to declare their associations, the committee requests a copy of the draft order and detailed information as to how the department proposes to implement the order in practice. 

Requirement to disclose information that may incriminate an individual

1.70      Section 26 of the bill would give the ABFC the power to issue written directions in connection with the administration of the ABF. Section 26(4) provides that the directions may include a requirement that immigration and border protection workers report serious misconduct and/or criminal activity by an immigration and border protection worker. Section 26(8) provides that if a person is required to provide information under a direction issued under section 26, that they are not excused from providing information on the grounds it might incriminate them.

1.71      Similarly, section 55 of the bill would give the Secretary the power to issue written directions in connection with the administration of the department. Section 55(5) provides that the directions may include a requirement that immigration and border protection workers report serious misconduct and/or criminal activity by an immigration and border protection worker. Section 55(10) provides that if a person is required to provide information under a direction issued under section 55, that they are not excused from providing information on the grounds it might incriminate them.

1.72      As this bill deals with provisions that require individuals to provide self-incriminating information, the committee considers that the bill engages and limits the protection against self-incrimination a core element of fair trial rights.

Right to a fair trial and fair hearing rights

1.73      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.

1.74      Specific guarantees of the right to a fair trial in the determination of a criminal charge guaranteed by article 14(1) are set out in article 14(2) to (7). These include the presumption of innocence (article 14(2)) and minimum guarantees in criminal proceedings, such as the right to not to incriminate oneself (article 14(3)(g)) and a guarantee against retrospective criminal laws (article 15(1)).

Compatibility of the measures with the right to a fair trial and fair hearing rights

1.75      The statement of compatibility identifies that the measures engage the right to be free from self-incrimination. The statement of compatibility provides no justification for the limitation on the protection against self-incrimination. The committee notes that the bill includes a use immunity which prevents 'the self-incriminating evidence being used in most legal proceedings' against the person required to disclose the evidence.[23] The committee notes that there is no justification for the exceptions provided to the use immunity and no justification for the absence of a derivative use immunity.^[24] 

1.76      As the statement of compatibility does not provide information on the legitimate objective of the measure it is difficult for the committee to assess the compatibility of the measure with international human rights law. 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,^[25] 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'.^[26] 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.

1.77      The committee considers that the provisions that require an immigration and border protection worker to disclose information at the direction of the departmental secretary of ABFC even if that information would incriminate them, engages and limits the right to a fair trial. The committee considers that the statement of compatibility has not justified the abrogation of the protection against self-incrimination. The committee therefore seeks the advice of the Minister for Immigration and Border Protection as to whether the limitations on the right to freedom from self-incrimination are  compatible with the right to a fair trial, and particularly:

• whether the proposed changes are aimed at achieving a legitimate objective;
• whether there is a rational connection between the limitation and that objective; and
• whether the limitation is a reasonable and proportionate measure for the achievement of that objective.

Secrecy provisions

1.78      Part 6 of the bill includes an offence provisions which criminalises the disclosure by an immigration and border protection worker[27] of any information obtained by a person in their capacity as an immigration protection worker. A breach of the penalty provision is subject to a maximum penalty of two years in prison.

1.79      The offence provision includes limited exceptions which would permit disclosure in circumstances including where:

• it is permitted by the secretary of the department;
• the disclosure is required by an order of a court or tribunal;
• the disclosure is required  by the Law Enforcement Integrity Commissioner Act 2006; or
• disclosure is necessary to prevent a serious threat to the life or health of an individual.

1.80      These exceptions would reverse the onus of proof and place an evidential burden on the defendant to establish (prove) that the statutory exception applies in a particular case. The committee considers that reversing the burden of proof engages and limits the right to be presumed innocent.

1.81      The committee also considers that the offence provision engages and may limit the right to effective remedy. Public interest disclosure of potential human rights abuses by employees or contractors of the department may be the only way in which potential human rights abuses come to the attention of the public and the relevant authorities. The department is responsible for individuals both in Australia as well as Manus Island and Nauru who are in detention and, as such, are highly vulnerable. The committee considers the relationship between the offence provision and the Public Interest Disclosure Bill 2013 is not clear, particularly as the department will be a law enforcement agency following the merger with Customs. The committee considers that this offence provision may further reduce disclosure, potentially limiting individual's access to an effective remedy in circumstances where their human rights have been violated.

1.82      The committee also considers that the offence provision limits the right to freedom of expression in that it would limit the disclosure by individuals of information gained in the course of their work with the department, including discussions that may be in the public interest.

Right to a fair trial (presumption of innocence)

1.83      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.

1.84      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. 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

1.85      The statement of compatibility does not identify the offence provision as engaging the right to a fair trial. Accordingly, it does not seek to justify its compatibility with human rights. As set out in the committee's Guidance Note 2, it is the committee's usual expectation that, where a reverse burden offence is introduced, legislation proponents provide a human rights assessment in the statement of compatibility, in accordance with Guidance Note 1.

1.86      The committee considers that reversing the burden of proof engages and limits the right to be presumed innocent.

1.87      The committee considers that as the secrecy offence provision contains an evidentiary burden on the accused that the provision engages and limits the right to a fair trial. This has not been addressed in the statement of compatibility. The committee therefore seeks the advice of the Minister for Immigration and Border Protection as to whether the offence provisions which includes a reverse evidentiary burden is compatible with the right to a fair trial, and particularly:

• whether the proposed changes are aimed at achieving a legitimate objective;
• whether there is a rational connection between the limitation and that objective; and
• whether the limitation is a reasonable and proportionate measure for the achievement of that objective.

Right to an effective remedy

1.88      Article 2 of the ICCPR requires state parties to ensure access to an effective remedy for violations of human rights. State parties are required to establish appropriate judicial and administrative mechanisms for addressing claims of human rights violations under domestic law. Where public officials have committed violations of rights, state parties may not relieve perpetrators from personal responsibility through amnesties or legal immunities and indemnities. Accessing effective remedies requires an ability to access information which may identify human rights violations.

1.89      State parties are required to make reparation to individuals whose rights have been violated. Reparation can involve restitution, rehabilitation and measures of satisfaction—such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices—as well as bringing to justice the perpetrators of human rights violations.

1.90      Effective remedies should be appropriately adapted to take account of the special vulnerability of certain categories of person including, and particularly, children.

Compatibility of the measure with the right to an effective remedy

1.91      The statement of compatibility does not identify the measure as engaging the right to an effective remedy. As set out above, offence provisions that prohibit the disclosure of government information may prevent relevant information coming to light that would enable human rights violations to be addressed as required by the right to an effective remedy. That is, the prohibition on disclosing information by government employees may adversely affect the ability of individual members of the public to know about possible violations of their human rights and therefore seek redress for such potential violations. 

1.92      As the statement of compatibility does not identify the right to an effective remedy as engaged, no justification for the limitation on the right is provided. The committee considers that this offence provision would further reduce disclosure potentially limiting individual's access to an effective remedy in circumstances where their human rights have been violated.

1.93      The committee considers that the secrecy offence provision engages and may limit the right to effective remedy as public interest disclosure of potential human rights abuses by employees or contractors of the department may be the only way in which potential human rights abuses come to the attention of the public and the relevant authorities. The engagement of the right to an effective remedy is not addressed in the statement of compatibility. The committee therefore seeks the advice of the Minister for Immigration and Border Protection as to whether the offence provisions is compatible with the right to an effective remedy, and particularly:

• whether the proposed changes are aimed at achieving a legitimate objective;
• whether there is a rational connection between the limitation and that objective; and
• whether the limitation is a reasonable and proportionate measure for the achievement of that objective.

Right to freedom of opinion and expression

1.94      The right to freedom of opinion and expression is protected by article 19 of the ICCPR. The right to freedom of opinion is the right to hold opinions without interference and cannot be subject to any exception or restriction. The right to freedom of expression extends to the communication of information or ideas through any medium, including written and oral communications, the media, public protest, broadcasting, artistic works and commercial advertising.

1.95      Under article 19(3), freedom of expression may be subject to limitations that are necessary to protect the rights or reputations of others, national security, public order (ordre public)^[28], or public health or morals. Limitations must be prescribed by law, pursue a legitimate objective, be rationally connected to the achievement of that objective and a proportionate means of doing so.^[29]

Compatibility of the measure with the right to freedom of expression

1.96      The statement of compatibility does not identify the offence provision as engaging the right to freedom of expression. Accordingly, it does not seek to justify its compatibility with human rights. The offence provision will criminalise the disclosure of any information which an individual has come across in the course of their work with the department. This limits freedom of speech directly. It also may limit free speech indirectly as the offence provision may discourage immigration and border protection workers from speaking freely about their opinions regarding immigration policy even if those opinions do not include information that may be considered secret.  

1.97      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,^[30] 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'.^[31] 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.

1.98      The committee considers that the offence provision limits the right to freedom of expression as it would restain an individual from discussing information gained in the course of their work with the department, including discussions that may be in the public interest. The limitation of this right was not justified in the statement of compatibility. The committee therefore seeks the advice of the Minister for Immigration and Border Protection as to whether the bill is compatible with the right to freedom of opinion and expression, and particularly:

• whether the proposed changes are aimed at achieving a legitimate objective;
• whether there is a rational connection between the limitation and that objective; and
• whether the limitation is a reasonable and proportionate measure for the achievement of that objective.
  

Construction Industry Amendment (Protecting Witnesses) Bill 2015

Portfolio: Employment

Introduced: Senate, 25 March 2015

Purpose

1.99      The Construction Industry Amendment (Protecting Witnesses) Bill 2015 (the bill) seeks to amend the Fair Work (Building Industry) Act 2012 (the Act) to extend a sunset provision from three years to five years.

1.100         Under the Act, the Director of the Fair Work Building Industry Inspectorate (the director) may apply to a nominated Administrative Appeal Tribunal (AAT) presidential member for an examination notice relating to an investigation into suspected breaches of the Act or a designated building law.

1.101         Currently, the director can apply for an examination notice up until 1 June 2015. This bill would extend the period to 1 June 2017.

1.102         Measures raising human rights concerns or issues are set out below.

Background 

1.103         The committee has considered similar powers to those proposed in the bill in relation to the Building and Construction Industry (Improving Productivity) Bill 2013 (2013 bill) which is currently before the Senate. The committee commented on the 2013 bill in its Second Report of the 44^th Parliament and the Tenth Report of the 44^th Parliament.[32]

Examination notices—coercive information-gathering powers

1.104         As set out above, the director may apply to a nominated AAT presidential member for an examination notice. The investigation[33] must relate to a suspected contravention by a building industry participant of a designated building law[34] or a safety net contractual entitlement.[35] This is an industry-specific workplace relations compliance regime for the building and construction industry.

1.105         A person who has been given an examination notice commits an offence, punishable by imprisonment of up to six months, if they fail to give the required information or documents in time, or in the form specified, or fail to answer questions put to them.[36] A person is not excused from giving information or documents or answering a question on the grounds that it might tend to incriminate them or expose them to a penalty or other liability (although the Act does include a use and derivative use immunity).[37]

1.106         The committee considers that making it a criminal offence to require a person to provide information or documents or answer questions engages and limits the right to privacy and the right to a fair trial (right not to incriminate oneself).

Right to privacy

1.107         Article 17 of the International Covenant on Civil and Political Rights (ICCPR) prohibits arbitrary or unlawful interferences with an individual's privacy, family, correspondence or home. The right to privacy includes respect for informational privacy, including:

• the right to respect for private and confidential information, particularly the storing, use and sharing of such information;
• the right to control the dissemination of information about one's private life.

1.108         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

1.109         The statement of compatibility acknowledges that the bill engages the right to privacy, but concludes that to the extent that extending the period in which the director may apply for an examination notice limits the right to privacy:

...it is a reasonable, necessary and proportionate limitation in the pursuit of the legitimate policy objective of seeking to ensure that building industry participants observe applicable workplace relations laws.[38]

1.110         The statement of compatibility gives a detailed explanation of the objective sought to be achieved by the examination notice. It gives the history behind the introduction of the powers, noting that coercive information gathering powers were recommended by a Royal Commissions into the building industry and a report on the industry by Justice Wilcox.[39] The committee notes that when the Act was introduced, the explanatory memorandum stated in relation to the sunset clause (which this bill seeks to extend):

This section implements the Wilcox Report recommendation that the compulsory examination power be subject to a sunset clause. It provides that an application for an examination notice may not be made after the end of 3 years after the day on which section 45 commences. It is intended that, before the end of that period, the Government would undertake a review into whether the compulsory examination powers continue to be required.[40]

1.111         The statement of compatibility does not state that any review has been carried out as to whether the compulsory examination powers continue to be required. However, the statement does state:

It is considered that the examination notice powers remain essential to allow the regulator to act rapidly when required. This is particularly so in light of the interim report of the Royal Commission into Trade Union Governance and Corruption (the Heydon Royal Commission) released by Commissioner Heydon in December 2014. In this report the Heydon Royal Commission recommended that the interim report and any other relevant materials be referred to the relevant authorities to consider whether criminal or civil proceedings should be brought against named persons or organisations, or whether other investigations should be undertaken...

The information obtained through examination notices allows the regulator to determine whether breaches of the law have occurred and to make an informed judgment about whether to commence proceedings or take other steps to ensure compliance with the law. The Fair Work Building Industry Inspectorate has advised that information obtained through the examination notice process has been important in around a quarter of its decisions to initiate proceedings. In other cases, the information obtained through the notice has led to a decision not to proceed with court action, thereby sparing the proposed respondent from the burden of court proceedings and avoiding unnecessary use of the regulator's and the court's resources.[41]

1.112         The committee considers that it is likely that the objective of seeking to ensure that participants in an industry observe the workplace relations laws that apply to that industry, and allowing the regulator to act rapidly when required, is a legitimate objective for the purposes of international human rights law.

1.113         The committee notes that the statement of compatibility has set out reasons for the powers in the bill being proportionate to the objective sought to be achieved. In particular, the statement of compatibility,  details the safeguards included in the Act:

• that the use of the powers is dependent on a presidential member of the AAT being satisfied of a number of grounds, including:
  • that there are reasonable grounds to believe that the person has information or documents, or is capable of giving evidence, relevant to the investigation;
  • that any other method of obtaining the information, documents or evidence has been attempted and has been unsuccessful or is not appropriate;
  • that the information, documents or evidence would be likely to be of assistance in the investigation;[42]
• persons summonsed to interview may be represented at an examination;
• an examination must not take place until at least 14 days after the notice is given, ensuring a person will have adequate opportunity to seeks and arrange legal representation if required;
• people summonsed for examination will be reimbursed for their reasonable expenses, including reasonable legal expenses,
• the Commonwealth Ombudsman will monitor and review all examinations (videotapes and recordings of the examination must be provided to the Ombudsman) and provide reports to the Parliament on the exercise of this power.

1.114         Nevertheless, the committee notes that the Act gives coercive information gathering powers to investigate matters that largely operate in relation to alleged breaches of industrial law for which civil penalties may be imposed. The coercive investigation powers are not targeted at violence or property damage which is regulated under existing criminal laws. The committee notes that such extensive coercive powers are generally not available to the police in the context of criminal investigations. That is, the powers go beyond those that are usually available in a criminal investigatory context.

1.115         The committee also notes that there is a significant maximum penalty available for a failure to cooperate, of up to six months imprisonment. A measure which limits human rights will only be proportionate if it is the least rights restrictive method of achieving the legitimate objective.

1.116         The committee further notes the ILO Committee on Freedom of Association has criticised similar measures under the former Australian Building and Construction Commission (ABCC) regime:

As for the penalty of six months' imprisonment for failure to comply with a notice by the ABCC to produce documents or give information, the Committee recalls that penalties should be proportional to the gravity of the offence and requests the Government to consider amending this provision.[43]

1.117         The committee considers that coercive powers granted to an investigatory body need to be proportionate to the contraventions of the law it is required to investigate. Indeed the committee notes that these proposed coercive investigative powers may arise in the context of alleged conduct by persons which may be a permissible and legitimate exercise of the right to strike as protected under international human rights law.[44]

1.118         The committee notes that a number of safeguards are included in the Act. In the committee's view, the key safeguard in the Act is that an examination notice can only be granted by an AAT presidential member if that member is satisfied of a number of specified matters. In addition, the committee notes that the bill does not confer these powers permanently, rather it extends the powers by two years. The statement of compatibility has indicated that these powers remain necessary following recommendations made by the recent Heydon Royal Commission.[45]

1.119         The committee considers that extending the operation of the coercive information gathering powers in the Act limits the right to privacy. The committee notes its particular concern about the appropriateness of such coercive powers in the context of alleged breaches of workplace relations law. However, the statement of compatibility provides justification as to why these powers may be considered reasonable and necessary. On balance, having considered the relevant safeguards and that the time period for the measure is limited to two years, the committee considers that the limitation on the right to privacy has been justified.

Right to a fair trial

1.120         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, and 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.

1.121         Specific guarantees of the right to a fair trial in the determination of a criminal charge guaranteed by article 14(1) are set out in article 14(2) to (7). These include the presumption of innocence (article 14(2)) and minimum guarantees in criminal proceedings, such as the right to not to incriminate oneself (article 14(3)(g)) and a guarantee against retrospective criminal laws (article 15(1)).

Compatibility of the measure with the right to a fair trial (right not to incriminate oneself)

1.122         Under section 53 of the Act a person is not excused from giving information, producing a document or answering a question under an examination notice on the ground that it may incriminate them or otherwise expose them to a penalty or other liability. The committee considers that this engages and limits the right not to incriminate oneself.

1.123         The statement of compatibility acknowledges that this limits the right not to incriminate oneself, but provides the following justification:

The abrogation of the privilege against self-incrimination was considered necessary by the Cole Royal Commission on the grounds that the building industry regulator would otherwise not be able to adequately perform its functions. After examining the necessity of the examination notice process, the Wilcox Report concluded that a new regulator should be invested with powers similar to those contained in the Building and Construction Industry Improvement Act 2005.[46]

1.124         Subsection 53(2) of the Act does provide for both a use and derivative use immunity, meaning that information, answers or documents given or produced (either directly or indirectly) under an examination notice is not admissible in evidence against the person except for proceedings relating to compliance with the examination notice itself.

1.125         The committee notes that the right not to incriminate oneself may be permissibly limited provided the limitation is appropriately justified. In other words, such restrictions must be reasonable, necessary and proportionate to that aim.

1.126         The committee considers that extending the operation of the coercive information gathering powers in the Act limits the right not to incriminate oneself. The committee notes its particular concern about the appropriateness of such coercive powers in the context of alleged breaches of workplace relations law. However, the statement of compatibility provides justification as to why these powers may be considered reasonable and necessary. The committee therefore considers, particularly in light of the use and derivative use immunity and that the time period for the measure is limited to two years, that the limitation on the right not to incriminate oneself has been justified.

Copyright Amendment (Online Infringement) Bill 2015

Portfolio: Attorney-General

Introduced: House of Representatives, 26 March 2015

Purpose

1.127         The Copyright Amendment (Online Infringement) Bill 2015 (the bill) seeks to amend the Copyright Act 1968 (the Act) to reduce copyright infringement by enabling copyright owners to apply to the Federal Court of Australia for an order requiring a carriage service provider (CSP) to block access to an online location operated outside Australia that has the primary purpose of infringing copyright or facilitating the infringement of copyright.

1.128         Measures raising human rights concerns or issues are set out below.

Copyright owners to be able to apply for an injunction to disable access to infringing online locations outside of Australia

1.129         The bill allows copyright owners to apply for injunctions from the Federal Court to force CSPs to block certain internationally operated online locations, with the effect of preventing CSP subscribers from accessing both authorised and unauthorised content such as video and music files from these websites.

1.130         The committee considers that the bill engages and may limit the right to freedom of opinion and expression and the right to a fair hearing.

Right to freedom of opinion and expression

1.131         The right to freedom of opinion and expression is protected by article 19 of the International Covenant on Civil and Political Rights (ICCPR). The right to freedom of opinion is the right to hold opinions without interference and cannot be subject to any exception or restriction. The right to freedom of expression extends to the communication of information or ideas through any medium, including written and oral communications, the media, public protest, broadcasting, artistic works and commercial advertising.

1.132         Under article 19(3), freedom of expression may be subject to limitations that are necessary to protect the rights or reputations of others, national security, public order (ordre public)^[47], or public health or morals. Limitations must be prescribed by law, pursue a legitimate objective, be rationally connected to the achievement of that objective and a proportionate means of doing so.^[48]

Compatibility of the measure with the right to freedom of opinion and expression

1.133         The bill allows copyright owners to seek injunctions from the Federal Court against CSPs in order to block access to certain online locations, such as file-sharing or torrenting websites[49]. The statement of compatibility states that the bill promotes the right to freedom of opinion and expression. However, while a website may have disproportionately high infringement of copyright materials, preventing users who are legally sharing or distributing files from accessing these websites, and preventing the general public from accessing such lawful material, could potentially limit their enjoyment of the right to freedom of opinion and expression and their right to receive information.

1.134         The committee accepts that the reduction in accessing online copyright infringement is a legitimate objective for the purposes of international human rights law, and that the measures are rationally connected to that objective as the measures will inhibit access to material that breaches copyright.

1.135         However, it is unclear, on the basis of the information provided in the statement of compatibility, whether the measure may be regarded as proportionate to this objective (that is, the least rights restrictive alternative to achieve this result). For example, it is likely that the granting of injunctions may adversely affect internet users who are legally accessing authorised data via the online locations concerned-such as smaller content producers who use torrenting websites as a legitimate platform for distribution. An injunction could also mean that some material, which has been legally shared on the website, is no longer accessible to members of the general public, thereby limiting their right to receive information.

1.136         The committee acknowledges that certain safeguards have been included in the bill. The statement of compatibility for the bill sets out the factors that must be taken into consideration by the Federal Court, so as to capture only online locations that have a primary purpose of 'facilitating the infringement of copyright', including:

...the flagrancy of the infringement or its facilitation, whether disabling access to the online location is a proportionate response in the circumstances, the impact on any person likely to be affected by the grant of the injunction, and whether it is in the public interest to disable access to the online location.[50]

1.137         It is likely that despite these safeguards there could remain potential issues of proportionality in relation to the scheme. The statement of compatibility sets out that:

It is possible to take direct action against an online location within Australia under the Act (section 115), but it is difficult to take action against the operator of an online location that is operated outside Australia.[51]

1.138         However, the proponent of the legislation does not provide further information or examples as to how direct action against internationally operated online locations would be a difficult mechanism for combating copyright infringement. The committee considers that further analysis or evidence would assist to substantiate the above statement.

1.139         Traditionally injunctions are equitable remedies which, in order to be granted, require the establishing by a claimant that damages under the circumstances are an inadequate remedy. The committee notes that the proponent of the legislation has not explained why other less rights restrictive methods of reparation for copyright owners in the case of copyright infringement would be insufficient in achieving the desired objective. Other potential mechanisms could include, for example, issuing infringement notices to individual copyright infringers and/or the provision of damages.

1.140         The committee therefore considers that the bill engages and limits the right to freedom of opinion and expression. As set out above, the statement of compatibility for the bill does not provide sufficient information to establish that the bill may be regarded as proportionate to its stated objective (that is, the least rights restrictive alternative to achieve this result). The committee therefore seeks the advice of the Attorney-General as to whether the bill imposes a proportionate limitation on the right to freedom of opinion and expression.

Right to a fair hearing

1.141         The right to a fair hearing is protected by article 14 of the ICCPR. The right applies to both criminal and civil proceedings, to cases before both courts and tribunals and to military disciplinary hearings. The right is concerned with procedural fairness, and encompasses notions of equality in proceedings, the right to a public hearing and the requirement that hearings are conducted by an independent and impartial body.

Compatibility of the measure with the right to a fair hearing

1.142         The statement of compatibility states that the bill promotes the right to a fair hearing, and ensures the right of due process for both CSPs and the operators of affected online locations.[52] If court proceedings are instigated by a copyright owner, the operator of the online location concerned would be able to apply to the Federal Court to be joined as a party to proceedings. However, the committee notes that it is up to the court's discretion to grant the operator access as a party to the proceedings, and is not necessarily guaranteed. This ability is dependent on the operator of the online location being notified of the application, which the statement of compatibility notes may not be possible due to difficulties in ascertaining their identity. Further, individuals that use the online locations for legitimate or authorised use (some of whom may have contractual rights with the online location to store or distribute content) would not have the ability to be party to proceedings.

1.143         In the absence of a number of the parties that may have their rights affected by the use of the injunction power, the measure may not satisfy the requirement of access to a fair hearing despite the relevant safeguards contained within the bill. The committee therefore considers that the bill may limit the right to a fair hearing.

1.144         The committee accepts that the reduction in accessing online copyright infringement is a legitimate objective for the purposes of international human rights law, and that the measures are rationally connected to that objective as the measures will inhibit access to material that breaches copyright. However, for the reasons listed above, the committee is concerned that granting copyright owners the power to seek from the court an injunction against CSPs to block particular overseas websites may not be the least rights restrictive method of achieving the stated objective, as set out at [1.139].

1.145         The committee considers that the bill engages and limits the right to a fair hearing. As set out above, the statement of compatibility for the bill does not provide sufficient information to establish that the bill may be regarded as proportionate to its stated objective (that is, the least rights restrictive alternative to achieve this result). The committee therefore seeks the advice of the Attorney-General as to whether the bill imposes a proportionate limitation on the right to a fair hearing.

Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015

Portfolio: Attorney-General
Introduced: House of Representatives, 19 March 2015

Purpose

1.146         The Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 (the bill) amends various Commonwealth Acts including to:

• amend the operation of serious drug and precursor offences in the Criminal Code Act 1995 (Criminal Code);
• clarify the scope and application of the war crime offence of outrages upon personal dignity in non-international armed conflict;
• expand the definition of forced marriage and increase penalties for forced marriages in the Criminal Code;
• amend the Criminal Code to insert 'knowingly concerned' as an additional form of secondary criminal liability;
• introduce mandatory minimum sentences of five years imprisonment for firearm trafficking;
• make technical amendments to the Crimes Act 1914 (Crimes Act) in relation to sentencing, imprisonment and release of federal offenders;
• allow the interstate transfer of federal prisoners to occur at a location other than a prison;
• facilitate information sharing about federal offenders between the Attorney-General's Department and relevant third party agencies;
• amend the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 to clarify internal operations and procedures of the Australian Transaction Reports and Analysis Centre;
• amend the Law Enforcement Integrity Commissioner Act 2006 by clarifying the Integrity Commissioner functions and duties;
• amend the definition of 'eligible person' and clarify an examiner's power to return 'returnable items' during an examination under the Australian Crime Commission Act 2002;
• amend the Proceeds of Crime Act 2002 (POC Act) to increase penalties for failing to comply with a production order or with a notice to a financial institution in proceeds of crime investigations;
• make minor and technical amendments to the POC Act;
• allow ICAC SA the ability to access information from Commonwealth agencies that relates to its investigations;

1.147         Measures raising human rights concerns or issues are set out below.

Background

1.148         The amendments in Schedule 6 of the bill reintroduce measures related to mandatory minimum sentencing for trafficking in guns that were originally included in the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014. The Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 was amended by the Senate prior to the bill's passage through the parliament to remove the measures related to mandatory minimum sentencing for trafficking in guns. The committee considered those measures in its Tenth, Fifteenth and Nineteenth Reports of the 44^th Parliament.[53] In its Fifteenth Report the committee concluded that the mandatory minimum sentencing provisions were likely to be incompatible with the right to a fair trial and the right not to be arbitrarily detained.

1.149         The committee notes that the Explanatory Memorandum (EM) includes advice that 'the mandatory minimum sentence is not intended as a guide to the non-parole period, which in some cases may differ significantly from the head sentence'. This statement was included in response to the committee's previous correspondence with the minister in relation to the measure.[54]

Mandatory minimum sentences for international firearms and firearm parts trafficking offences

1.150         Schedule 6 would introduce new offences of trafficking prohibited firearms and firearm parts into and out of Australia into the Criminal Code Act 1995 (proposed Division 361). A mandatory minimum five-year term of imprisonment for the new offences in Division 361 as well as existing offences in Division 360 would also be inserted. As set out in the Committee's Guidance Note 2 mandatory minimum sentences engage both the right to freedom from arbitrary detention and the right to a fair trial.

Right to security of the person and freedom from arbitrary detention

Right to a fair trial and fair hearing rights

1.151         Article 9 of the International Covenant on Civil and Political Rights (ICCPR) protects the right to security of the person and freedom from arbitrary detention. An offence provision which requires mandatory minimum sentencing will engage and limit the right to be free from arbitrary detention. The notion of 'arbitrariness' under international human rights law includes elements of inappropriateness, injustice and lack of predictability. Detention may be considered arbitrary where it is disproportionate to the crime that has been committed (for example, as a result of a blanket policy).[55] Mandatory sentencing may lead to disproportionate or unduly harsh outcomes as it removes judicial discretion to take into account all of the relevant circumstances of a particular case in sentencing.

1.152         Mandatory sentencing is also likely to engage and limit article 14(5) of the ICCPR, which protects the right to have a sentence reviewed by a higher tribunal. This is because mandatory sentencing prevents judicial review of the severity or correctness of a minimum sentence. The committee considers that mandatory minimum sentencing will be difficult to justify as compatible with human rights, given the substantial limitations it places on the right to freedom from arbitrary detention and the right to have a sentence reviewed by a higher tribunal (due to the blanket nature of the measure). Where mandatory minimum sentencing does not require a minimum non-parole period, this will generally be insufficient, in and of itself, to preserve the requisite judicial discretion under international human rights law to take into account the particular circumstances of the offence and the offender.[56]

Compatibility of the measures with the right to security of the person and freedom from arbitrary detention and the right to a fair trial and fair hearing rights

1.153         The statement of compatibility identifies the right to freedom from arbitrary detention as being engaged by the introduction of mandatory minimum five year sentences.^[57] The committee notes that detention may be considered arbitrary where it is disproportionate to the crime. This is why it is generally important for human rights purposes to allow courts discretion to ensure that punishment is proportionate to the seriousness of the offence and individual circumstances. The statement of compatibility identifies the legitimate objective being pursued as 'ensuring offenders receive sentences that reflect the seriousness of their offending.' The statement of compatibility further reasons that:

Failure to enforce harsh penalties on trafficking offenders could lead to increasing numbers of illegal firearms coming into the possession of organised crime groups who would use them to assist in the commission of serious crimes.^[58]

1.154         The committee notes the strong interest of government in regulating the trafficking of firearms from the perspective of public safety and systemic harms. The committee notes that the statement of compatibility has provided some analysis of the proportionality of the proposed mandatory sentencing measures including that the penalties do not impose a minimum non-parole period on offenders and thereby preserves some of the court's discretion as to sentencing.

1.155         The committee welcomes the inclusion in the EM of a statement that 'the mandatory minimum sentence is not intended as a guide to the non-parole period, which in some cases may differ significantly from the head sentence'.[59] This was included following discussions between the committee and the Minister for Justice in relation to these measures which were previously part of the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014. The committee considers that this statement in the EM is likely to provide some protection of judicial discretion in sentencing.

1.156         However, the committee considers that the statement of compatibility has failed to provide a full analysis of why mandatory minimum sentences are required to achieve the legitimate objective being pursued. In particular there is no analysis as to why the exercise of judicial discretion, by judges who have experience in sentencing, would be inappropriate or ineffective in achieving the objective of appropriately serious sentences in relation to firearm-trafficking crimes. 

1.157         The committee considers that mandatory sentencing may also engage article 14(5) of the ICCPR which provides the right to have a sentence reviewed by a higher tribunal. This is because mandatory minimum sentencing impacts on judicial review of the minimum sentence. The statement of compatibility does not address the potential engagement of article 14(5).^[60]

1.158          The committee notes that to demonstrate that a limitation is permissible, proponents of legislation must provide reasoned and evidence-based explanations of why the measures are necessary for the attainment of a legitimate objective.

1.159         In light of these considerations, the committee reiterates its recommendation that the provision be amended to clarify that the mandatory minimum sentence is not intended to be used as a 'sentencing guidepost' and that there may be a significant difference between the non-parole period and the head sentence. This would ensure that the scope of the discretion available to judges would be clear on the face of the provision itself, and thereby minimise the potential for disproportionate sentences that may be incompatible with the right not to be arbitrarily detained and the right to a fair trial.

Anti-Money-Laundering and Counter Terrorism Financing Amendments

1.160         Schedule 10 of the bill would make a number of amendments to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act). Currently, section 169 of the AML/CTF Act provides that a person is not excused from giving information or producing a document under paragraph 167 on the grounds that compliance might be incriminating. Subsection 169 (2) currently provides a 'use' immunity for information that is given that may be self-incriminating with limited exceptions.[61] The bill would expand the exceptions thus reducing the scope and effect of the use immunity. Under the bill, it would be permissible to use any self-incriminating information gathered for the following purposes:

• proceedings under this AML/CFT Act  or proceedings under the Proceeds of Crime Act 2002 that relate to the AML/CFT Act; or
• criminal proceedings for an offence against the AML/CFT Act; or an offence against the Criminal Code that relates to the AML/CFT Act.

1.161         As this bill deals with provisions that require individuals to provide self-incriminating information under the AML/CTF Act, the committee considers that the bill engages and limits the protection against self-incrimination a core element of fair trial rights.

Right to a fair trial and fair hearing rights

1.162         The right to a fair trial and fair hearing is protected by article 14 of the International Covenant on Civil and Political Rights (ICCPR). The right applies to both criminal and civil proceedings, to cases before both courts and tribunals. The right is concerned with procedural fairness, and encompasses notions of equality in proceedings, the right to a public hearing and the requirement that hearings are conducted by an independent and impartial body.

1.163         Specific guarantees of the right to a fair trial in the determination of a criminal charge guaranteed by article 14(1) are set out in article 14(2) to (7). These include the presumption of innocence (article 14(2)) and minimum guarantees in criminal proceedings, such as the right to not to incriminate oneself (article 14(3)(g)) and a guarantee against retrospective criminal laws (article 15(1)).

Compatibility of the measures with the right to a fair trial and fair hearing rights

1.164         The statement of compatibility identifies that the measures engage the right to be free from self-incrimination. The statement of compatibility also sets out that the measures are reasonable, necessary and proportionate. The statement of compatibility does not explain why the amendments are necessary beyond a statement that the changes 'provide greater consistency in the operation and interpretation of the [AML/CFT] Act'.[62] The statement of compatibility does not explicitly identify a legitimate objective for the measure or explain why they are necessary.

1.165         The statement of compatibility states that section 169 of the AML/CTFC Act provide both a use and a derivative use immunity.[63] However, the committee considers that the section 169 only provides a use immunity and not a derivative use immunity as there is no prohibition on the use of any information, document or thing indirectly obtained as a consequence of the self-incriminating information. Whether the AML/CFT Act provides only a use immunity rather than use immunity and derivative use immunity is relevant to an assessment of the proportionality of the measures.

1.166         As the statement of compatibility does not provide information on the legitimate objective it is difficult for the committee to assess the compatibility of the measure. 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,^[64] 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'.^[65] 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.

1.167         The committee considers that the amendments which require an individual to give information that may be self-incriminating engages and limit the fair trial rights. The committee considers that the statement of compatibility has not explained the legitimate objective for the measure. The committee therefore seeks the advice of the Minister for Justice as to whether the amendments to the AML/CFT Act are compatible with the right to a fair trial, and particularly:

• whether the proposed changes are aimed at achieving a legitimate objective;
• whether there is a rational connection between the limitation and that objective; and
• whether the limitation is a reasonable and proportionate measure for the achievement of that objective.

Defence Legislation (Enhancement of Military Justice) Bill 2015

Portfolio: Defence

Introduced: House of Representatives, 26 March 2015

Purpose

1.168         The Defence Legislation (Enhancement of Military Justice) Bill 2015 (the bill) seeks to amend the Defence Force Discipline Act 1982 (Defence Force Discipline Act) and the Defence Act 1903 to:

• repeal  provisions in respect of 'old service offences' and 'previous service law', being certain offences committed between July 1982 and July 1985;
• clarify that a service offence is an offence against the law of the Commonwealth—meaning that a conviction imposed by a service tribunal (a court martial, a Defence Force magistrate or a summary authority) will be considered a conviction under the ordinary criminal law;
• create two new service offences and clarify the elements of an existing offence;
• replace recognisance release orders with the power to set fixed non-parole periods, and apply parts of the Crimes Act 1914 to the non-parole periods set by a service tribunal;
• enable the disclosure of certain convictions of service offences to an authority of the Commonwealth or state or territory and ensure a convicted person is not required to disclosure certain other convictions;
• replace dollar amounts with penalty units (and increase the applicable penalty);
• correct technical errors in the charge referral process and in the Discipline Officer scheme; and
• establish the Director of Defence Counsel Services as a statutory office.

1.169         The bill also seeks to amend the Military Justice (Interim Measures) Act (No. 1) 2009 (Interim Act) to extend the period of appointment of the Chief Judge Advocate and full-time Judge Advocates by a further two years, making the period of appointment up to eight years instead of six years.

1.170         Measures raising human rights concerns or issues are set out below.

Background

1.171         In 2005 the Senate Standing Committee on Foreign Affairs, Defence and Trade conducted an inquiry into the effectiveness of Australia's military justice system (the 2005 report).[66] In this report, the Committee noted that a number of countries had seen numerous court challenges to the legal validity of their respective military justice systems, including whether service tribunals could be said to be independent and impartial.

1.172         Following the 2005 report, legislation[67] was introduced to create a permanent military court (the Australian Military Court) which was intended to satisfy the principles of impartiality, judicial independence and independence from the chain of command.[68] However, in 2009 the High Court struck down this legislation as being unconstitutional.[69] In response, Parliament put in place a series of temporary measures pending the introduction of legislation to establish a constitutional court. The Military Justice (Interim Measures) Act (No. 1) 2009 (Interim Act) largely returned the service tribunal system to that which existed before the creation of the Australian Military Court.[70]

1.173         In 2013 the Military Justice (Interim Measures) Amendment Bill 2013 amended the Interim Act to extend the appointment, remuneration, and entitlement arrangements of the Chief Judge Advocate and Judge Advocates by an additional two years. The committee reported on this bill in its Sixth Report of 2013.[71]

Extension of the appointments of Chief Judge Advocate and full-time Judge Advocate

1.174         Initially, the Interim Act provided a fixed tenure of up to two years for both the Chief Judge Advocate and full-time Judge Advocates who were appointed pursuant to the provisions of the Interim Act. In 2011 and 2013 the period of appointment was extended by a further two years each time, so that the current period of appointment is up to six years.[72] That tenure is due to expire in September 2015. The bill amends Schedule 3 of the Interim Act to extend the appointment, remuneration, and entitlement arrangements provided for in that Act for an additional two years, thereby providing a fixed tenure for the Chief Judge Advocate and current full-time Judge Advocate of up to eight years, or until the Minister for Defence declares, by legislative instrument,[73] a specified day to be a termination day, whichever is sooner.

1.175         The committee considers that extending the operation of the existing military justice system through extending the appointment period for the Chief Judge Advocate and Judge Advocates engages and may limit the right to a fair hearing and fair trial.

1.176         The committee notes that there are other provisions in this bill that  relate to the system of military justice, however, as they do not in themselves expand the operation of the system, the committee makes no further comment in relation to them.

Right to a fair hearing and fair trial

1.177         The right to a fair trial and fair hearing is protected by article 14 of the International Covenant on Civil and Political Rights (ICCPR). The right applies to both criminal and civil proceedings, to cases before both courts and tribunals. The right is concerned with procedural fairness, and encompasses notions of equality in proceedings, the right to a public hearing and the requirement that hearings are conducted by an independent and impartial body.

1.178         Specific guarantees of the right to a fair trial in the determination of a criminal charge guaranteed by article 14(1) are set out in article 14(2) to (7). These include the presumption of innocence (article 14(2)) and minimum guarantees in criminal proceedings, such as the right to not to incriminate oneself (article 14(3)(g)) and a guarantee against retrospective criminal laws (article 15(1)).

Compatibility of the measure with the right to fair hearing and fair trial

1.179         The Defence Force Discipline Act sets out a number of disciplinary offences, ranging from defence specific offences such as mutiny or failure to follow commands to offences such as assault and theft. These offences are dealt with by court martial, Defence Force Magistrates or by summary authorities. The trial of members of the armed services for serious service offences by service tribunals (including courts-martial) has been identified as giving rise to issues of compatibility with the right to a fair hearing in the determination of a criminal charge. The question is whether a person who is a member of a military with a hierarchical chain of command and who serves as a judge or member of a military tribunal, can be said to constitute an independent tribunal in light of the person's position as part of a military hierarchy. Concerns about the impartiality of the disciplinary structure and the need to ensure defence personnel are able to access fair and independent tribunals were influential in the establishment of the Australian Military Court that was held to be unconstitutional by the High Court.[74]

1.180         The UN Human Rights Committee has stated that 'the requirement of competence, independence and impartiality of a tribunal is an absolute right that is not subject to any exception' and that 'the provisions of article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialized, civilian or military'.[75]

1.181         The question of whether a tribunal enjoys the institutional independence guaranteed by article 14(1) requires consideration of a number of factors, including whether the members of the court or tribunal are independent of the executive. In addition to the relationship of members of a tribunal to a military chain of command, the term of appointment of members may also be relevant. In particular, the fact that the term of appointment of a member of a court or tribunal is terminable at the discretion of a member of the executive, would appear to be incompatible with the requirement that tribunals be independent.[76]

1.182         The statement of compatibility states that it is necessary to further extend the statutory period of appointment 'to support the current arrangements...[and] continue the effective operation of the superior tribunal system pending a decision in respect of a permanent system to try serious service offences'.[77] The statement of compatibility does not assess whether extending the operation of the military system of justice is compatible with the right to a fair trial. Rather, it has an overview statement of the human rights implications of the bill as a whole and states:

The purpose of Australia's military discipline system is to support military commanders in maintaining and enforcing service discipline to enhance operational effectiveness. A military discipline system that supports the authority and effectiveness of commanders is of vital importance in the efficient, effective, and proper operation of the [Australian Defence Force].

...

The Bill operates to make military justice enhancements to the existing military discipline system and to extend the appointments of the current CJA and full-time Judge Advocate, who contribute to the effective operation of the military justice system and the dispensation of military discipline.

The Bill reflects a positive human rights milieu. It is, therefore, compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.[78]

1.183         The committee notes that maintaining and enforcing discipline within the Defence Force, including supporting the authority of commanders, is an important objective under international human rights law. However, the committee notes that the requirement under article 14 of the independence and impartiality of a tribunal is an absolute right and not subject to any exceptions. The Australian Military Court was established, in part, to satisfy the principles of impartiality, judicial independence and independence from the chain of command.[79] As a result of the High Court's decision in 2009, the system of military justice has reverted to the previous system which had raised questions about independence and impartiality.[80] The committee notes that it has been six years since the Interim Act was introduced. In 2010 and 2012 bills were introduced into Parliament to establish a permanent military court, but both bills have lapsed.[81] No information was provided in the statement of compatibility as to what steps are being taken to establish a permanent system of military justice.

1.184         The committee therefore considers that extending the appointments of the Chief Judge Advocate and full-time Judge Advocate, and thereby extending the current system of military justice, may limit the right to a fair hearing. As set out above, the statement of compatibility does not address this issue. The committee therefore seeks the advice of the Minister for Defence as to whether extending the operation of the existing system of military justice is compatible with the right to a fair trial.

Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2]

Portfolio: Employment

Introduced: House of Representatives, 19 March 2015

Purpose

1.185         The Fair Work (Registered Organisations) Amendment Bill 2014 [No. 2] (the 2015 bill) seeks to amend the Fair Work (Registered Organisations) Act 2009 (RO Act) to:

• establish an independent body, the Registered Organisations Commission, to monitor and regulate registered organisations with amended investigation and information gathering powers;
• amend the requirements for officers' disclosure of material personal interests (and related voting and decision making rights) and change grounds for disqualification and ineligibility for office;
• amend existing financial accounting, disclosure and transparency obligations under the RO Act by putting certain obligations on the face of the RO Act and making them enforceable as civil remedy provisions; and
• increase civil penalties and introduce criminal offences for serious breaches of officers' duties as well as new offences in relation to the conduct of investigations under the RO Act.

1.186         Measures raising human rights concerns or issues are set out below.

Background

1.187         The 2015 bill is the second re-introduction of the Fair Work (Registered Organisations) Amendment Bill 2013 (the 2013 bill).[82] The 2013 bill was negatived in the Senate on 14 May 2014. The Fair Work (Registered Organisations) Amendment Bill 2014 (the 2014 bill) was then introduced on 19 June 2014. The committee considered the 2013 bill and the 2014 bill in its First Report of the 44^th Parliament, Fifth Report of the 44^th Parliament and Ninth Report of the 44^th Parliament.[83]

1.188         The committee raised a number of issues in relation to the right to freedom of association and the right to fair trial and fair hearing rights in its First Report of the 44^th Parliament. The committee sought the further advice of the Minister for Employment as to the compatibility of the measures with each of these rights.

1.189         The committee considered the minister's response in its Fifth Report of the 44th Parliament. The minister's response included proposals to amend the 2013 bill. On the basis of the proposed amendments and the further information provided in the minister's response, the committee concluded its examination of the bill.

1.190         The amendments proposed by the minister were subsequently not included in the 2014 bill. Accordingly, the committee in its Ninth Report of the 44^th Parliament reiterated its previous analysis with respect to 2013 bill.

1.191         The 2014 bill was subsequently amended by the government prior to it being negatived in the Senate. The 2015 bill is identical to the text of the 2014 bill, as amended. The committee notes that the statement of compatibility for the 2015 bill refers and responds to some of the committee's previous analysis in relation to the earlier bills.[84]  The committee notes that as a result of the changes incorporated into the 2015 bill most of the committee's previous concerns have been addressed, outstanding issues are set out below.

Breadth of disclosure requirements

1.192         Proposed section 293B would require paid officers of registered organisations to disclose any remuneration paid to them. Proposed section 293C would also require a 'disclosing officer' whose duties relate to financial management of the organisation to disclose any material personal interests that the officer acquires. The committee considers that the measure engages and may limit the right to freedom of association.

Right to freedom of association

1.193         Article 22 of the International Covenant on Civil and Political Rights (ICCPR) protects the right to freedom of association, being the right of all persons to group together voluntarily for a common goal and to form and join an association. Examples are political parties, professional or sporting clubs, non-governmental organisations and trade unions. The right to form and join trade unions is specifically protected in article 8 of the ICESCR. It is also protected in International Labour Organization (ILO) Convention No 87 (referred to in article 22(3) of the ICCPR and article 8(3) of ICESCR). Australia is a party to ILO Convention No 87.

Compatibility of the measure with the right to freedom of association

1.194         The committee considers that the measure engages and may limit the right to freedom of association as it regulates the internal operations of unions and employer associations.[85] The statement of compatibility acknowledges that the financial disclosure requirements engage and limit the right to freedom of association but argues that this limit is justifiable.[86] A limitation on the right to freedom of association will be justifiable where it addresses a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving this objective.

1.195         In its analysis of the 2013 bill, the committee acknowledged that the measure pursues the legitimate objective of achieving better governance of registered organisations, but requested further advice as to whether the breadth of the disclosure regime was necessary and proportionate to the stated legitimate objective. The committee had been concerned that the proposed disclosure requirement, as then formulated, may have been broader than was strictly necessary to achieve that objective because it was not limited to officers who were responsible for the financial management of the organisation, and would also apply to officers who were volunteers.[87] The committee notes that the statement of compatibility to the 2015 bill advises:

The Bill makes appropriate reductions in the scope of disclosure obligations on organisations and officers to reflect the Corporations Act 2001 (Corporations Act) and to respond to concerns with the disclosure regime introduced by the Fair Work (Registered Organisations) Amendment Act 2012 identified by the Senate Standing Committee on Education and Employment (discussed below). These amendments also directly address the concerns raised by the Joint Committee as to whether the breadth of the proposed disclosure regime in the previous Bills is necessary and proportionate to the objective of achieving better governance of registered organisations.[88]

1.196         The committee welcomes the reductions to the scope of disclosure obligations to paid officers and the disclosure of material personal interests to officers whose duties relate to financial management.[89] In light of these changes, the committee considers that the disclosure requirement appears to be a proportionate means of achieving the stated objective of achieving better governance of registered organisations. The disclosure requirement appears to be a permissible limitation on the right to freedom of association and is accordingly likely to be compatible with this right.

1.197         The committee welcomes the reduction to the scope of disclosure obligations in the bill. The committee considers that the disclosure obligations are likely to be compatible with the right to freedom of association in accordance with its previous analysis as set out in its Fifth Report of the 44^th Parliament.

Reverse burden offence

1.198         Proposed new section 337AC creates an offence for concealing documents relevant to an investigation and carries a maximum penalty of five years imprisonment. Section 337AC(2) provides a defence if 'it is proved that the defendant intended neither to defeat the purposes of the investigation, nor to delay or obstruct the investigation, or any proposed investigation'.^[90] The defendant is required to bear a reverse legal burden of proof in relation to this defence.[91] The committee considers that this provision engages the right to a fair trial and the presumption of innocence.

Right to a fair trial and fair hearing

1.199         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, and 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.

1.200         Specific guarantees of the right to a fair trial in the determination of a criminal charge guaranteed by article 14(1) are set out in article 14(2) to (7). These include the presumption of innocence (article 14(2)) and minimum guarantees in criminal proceedings, such as the right to not to incriminate oneself (article 14(3)(g)) and a guarantee against retrospective criminal laws (article 15(1)).

Compatibility of the measure with the right to a fair trial

1.201         The statement of compatibility does not identify section 337AC as engaging and limiting the right to be presumed innocent.

1.202         However, the committee notes that the right to be presumed innocent requires the prosecution to prove each element of a criminal offence beyond reasonable doubt. An offence provision which requires the defendant to carry an evidential or legal burden of proof with regard to the existence of some fact therefore engages and limits the right to be presumed innocent. This is because a defendant's failure to discharge the burden of proof may permit their conviction despite reasonable doubt as to their guilt. Where a statutory defence, exception or excuse is provided against an offence provision, this must be considered as part of a contextual and substantive human rights assessment of potential limitations on the right to be presumed innocent.

1.203         Accordingly, the committee considers that the offence provision in proposed section 337AC(2) engages and limits the right to be presumed innocent because it requires the defendant to prove that they did not possess the requisite intention (to defeat the purposes of the investigation, or to delay or obstruct the investigation or any proposed investigation). This is a reversal of the legal burden of proof. The committee further considers that the proposed offence in this case represents a significant limitation on the right to be presumed innocent, taking into account the penalty for the offence (imprisonment) and the difficulty for the defendant, who is effectively required to prove a negative intention.

1.204         However, such reverse evidential or legal burden offences can nevertheless be permissible limitations on the right to be presumed innocent where they address a legitimate objective, are rationally connected to that objective and are a proportionate means of achieving that objective (that is, are the least rights restrictive way of achieving that objective).

1.205         In its First Report of the 44th Parliament, the committee accepted the measure pursued a legitimate objective of ensuring better governance of registered organisations.[92] However, the committee considered that the reverse legal burden may have been broader than strictly necessary to achieve this objective (that is, that the measure may have been disproportionate). The committee therefore sought further information as to whether the proposed reverse burden offence was compatible with the right to be presumed innocent. The committee also sought specific advice as to whether the less rights restrictive alternative of an evidentiary burden would be sufficient in these circumstances to achieve the legitimate objective. An evidentiary burden would require the defendant to provide some evidence (for example, a statement under oath) regarding the absence of intention, but would not require the defendant to prove the absence of intention on the balance of probabilities.[93]

1.206         In its Fifth Report of the 44th Parliament, the committee noted the minister's advice that the proposed offence:

...is very important in terms of the integrity of the investigations framework under the Bill and is central to the Bill's objectives' and that recent investigations have shown the existing framework to be 'spectacularly ineffective in both deterring inappropriate behaviour and holding wrongdoers to account'.[94]

1.207         The minister further stated that breaches of the law in this field 'should be treated just as seriously as such conduct by company directors'.[95]

1.208         The committee acknowledges the minister's view that there is a need for a strong regulatory framework in this area, and, as noted above, considers that the measure addresses a legitimate objective for the purposes of international human rights law.

1.209         However, the minister's response did not directly address the committee's question as to the proportionality of the measure, and specifically whether the imposition of a less rights restrictive evidential burden would be sufficient to achieve the stated legitimate objective in this case.[96]

1.210         The committee notes that the statement of compatibility to the 2015 bill does not provide any further information in relation to this measure. The committee's usual expectation where it has raised concerns in relation to a measure in a bill is that any subsequent re-introduction of the measure is accompanied by a statement of compatibility addressing the issues previously identified by the committee.

1.211         The committee considers that the reverse legal burden in proposed section 337AC engages and limits the right to be presumed innocent. As set out above, the statement of compatibility does not provide an assessment as to whether the measure engages and limits the right to be presumed innocent. On the basis of correspondence in relation to earlier bills, the committee considers that the reverse burden offence in section 337AC is aimed at achieving a legitimate objective for the purposes of international human rights law, but remains concerned that the measure may not be proportionate (to the extent that there may be less rights restrictive ways of achieving its objective). In the absence of a justification for the limitation imposed on the right to be presumed innocent, and particularly the absence of any discussion of the availability of a less limiting way of achieving the objective than reversing the legal burden, the committee considers that the measure may be incompatible with human rights.

Law Enforcement Legislation Amendment (Powers) Bill 2015

Portfolio: Justice

Introduced: House of Representatives, 26 March 2015

Purpose

1.212         The Law Enforcement Legislation Amendment (Powers) Bill 2015 (the bill) seeks to amend the Australian Crime Commission Act 2002 (ACC Act) and the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act) to enhance the powers of Australian Crime Commission examiners to conduct examinations, and the Integrity Commissioner, supported by the Australian Commission for Law Enforcement Integrity, to conduct hearings.

1.213         Measures raising human rights concerns or issues are set out below.

Background

1.214         The committee notes that the ACC Act and the LEIC Act were enacted prior to the establishment of the committee. Consequently, neither Act has a statement of compatibility with human rights nor have they been reviewed by the committee for compliance with Australia's human rights obligations. The committee notes that its analysis of the bill is limited to an examination of the specific provisions in the bill and not the human rights compatibility of the Acts more broadly.

1.215         The committee notes that different terminology is used under the ACC Act and LEIC Act to describe essentially identical processes and procedures. For simplicity, this analysis uses the applicable terminology from the ACC Act.

Authorising post-charge examinations and hearings

1.216         Part 1 of Schedule 1 of the bill, will enable an Australian Crime Commission (ACC) examiner to conduct an examination of a person who has been charged with an offence and to ask that person questions that relate to the subject matter of the charge. Schedule 2 will make similar amendments to the LEIC Act to enable the Law Enforcement Integrity Commissioner (LEI Commissioner) to conduct a hearing and question a witness who has been charged with an offence and to ask that person questions that relate to the subject matter of the charge.

1.217         The powers provided for in the bill allow:

• ACC examiners to compel a person to answer questions relating to an ACC special operation or special investigation into serious and organised criminal activity; and
• the Integrity Commissioner to compel a person to answer questions relating to an investigation into law enforcement corruption.

1.218         A person cannot refuse to answer a question, or produce a document or thing, in an examination or a hearing on the basis that it might incriminate them, or expose them to a penalty. However, the bill contains limits on the circumstances in which answers can be used in evidence against the person in criminal proceedings or proceedings for the imposition of a penalty.

1.219         As set out in the statement of compatibility, these measures engage and limit the right to a fair trial, specifically the equality of arms principle and the protection against self-incrimination.

Right to a fair trial

1.220         The right to a fair trial is protected by article 14 of the International Covenant on Civil and Political Rights (ICCPR). The right is concerned with procedural fairness, and encompasses notions of equality in proceedings, the right to a public hearing and the requirement that hearings are conducted by an independent and impartial body.

1.221         Specific guarantees of the right to a fair trial in the determination of a criminal charge guaranteed by article 14(1) are set out in article 14(2) to (7). These include the presumption of innocence (article 14(2)) and minimum guarantees in criminal proceedings, such as the right to not to incriminate oneself (article 14(3)(g)) and a guarantee against retrospective criminal laws (article 15(1)).

Compatibility of the measures with the right to a fair trial

1.222         The committee considers that these measures contain significant limitations on the right to a fair trial. The statement of compatibility explains that these measures limit the right to a fair trial, specifically the equality of arms principle and the protection against self-incrimination.

1.223         The right to a fair trial in this context may be limited if it can be demonstrated that the measure supports a legitimate objective, being one that seeks to 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.

1.224         The statement of compatibility explains that the measures in the bill serve the legitimate objective of protecting the community from serious and organised crime (in the case of the ACC) and preventing corruption in law enforcement agencies (in the case of the LEI Commissioner). The committee agrees that these are legitimate objectives for the purpose of international human rights law. The committee also agrees that the measures are rationally connected to this objective as these extraordinary powers may facilitate evidence that otherwise would not be obtained through the use of ordinary police powers, which may assist in disrupting organised crime and tackling corruption in law enforcement agencies.

1.225         A limitation may be permitted if it can be demonstrated that it is proportionate to the legitimate objective being sought, including that there are effective safeguards or controls over the measures. The committee notes that the bill includes a number of important safeguards, including:

• that material obtained from the ACC compulsory questioning must not be disclosed in a way that would prejudice the fair trial of the examinee. Further, the bill requires an examiner to issue a direction preventing the disclosure of material obtained from the ACC compulsory questioning if, amongst other things, the examinee has been charged with an offence (or a charge is imminent) and the failure to make the direction would reasonably be expected to prejudice his or her fair trial. Similar provisions would apply to the LEI Commissioner; and
• that the bill contains a use immunity and a partial derivative use immunity. Information directly provided by a person under an examination notice cannot be used in criminal proceedings against that person (use immunity).[97] Information indirectly obtained from the person during compulsory questioning of an examinee cannot be disclosed to a prosecutor of the examinee without an order from the court hearing the charges (partial derivative use immunity).[98] The court may only order the disclosure of derivative examination material to a prosecutor if it would be in the interests of justice. To the extent that an examination order may cause prejudice, the amendments expressly preserve a court's ability to make all necessary orders to manage and remove that prejudice.

1.226         The committee notes that compelling a person to answer questions after they have been charged with an offence (but before they have been convicted) significantly limits the right not to incriminate oneself, as information provided under this process may incriminate the person. As set out in the committee's Guidance Note 2, the existence of both use and derivative use immunities will be crucial to assessing whether a provision that limits the protection against self-incrimination is nevertheless compatible with the right to a fair trial. The committee notes that while the bill includes a use immunity, the absence of a full derivative use immunity raises questions about the compatibility of the measure, particularly given the extraordinary powers granted to the ACC and LEI Commissioner.

1.227         However, in this case, the committee notes that the statement of compatibility sets out in detail how the measures impose a proportionate limitation on fair trial rights and why a partial derivative use immunity is reasonable, necessary and proportionate. In coming to the view that the statement of compatibility has justified the limitation on fair trial rights, the committee draws particular attention to the control that the court will have in determining whether it is in the interests of justice to admit evidence that has been obtained as a result of compulsory questioning. The committee notes that the courts have developed over many centuries detailed rules of evidence and procedure that seek to ensure that evidence that is prejudicial to the accused is only admitted in court when a judge is satisfied that it is in the interests of justice to do so. These rules of evidence and procedure assist in limiting the prejudice to an accused and thus assist the committee in assessing that the limitation imposed by the measure on the right to a fair trial may be proportionate.

1.228         The committee considers that the powers granted to the ACC and LEI Commissioner to compulsorily question a person who has been charged with an offence significantly limits the right to a fair trial, in particular, the principle of equality of arms and the protection against self-incrimination. However, the statement of compatibility provides a detailed justification of why these powers are considered reasonable and necessary. On balance, having considered the relevant safeguards provided in the bill, the committee considers that the limitation on fair trial rights has been justified.

Authorising post-confiscation application examinations and hearings

1.229         The bill will also amend the ACC Act and LEIC Act to enable ACC examiners and the LEI Commissioner to conduct examinations in the context of confiscation proceedings against the examinee under the Proceeds of Crime Act 2002 (POC Act) and equivalent state and territory legislation, as well as the circumstances in which examination material may be used in such proceedings. These amendments largely mirror those outlined above, with the key difference that confiscation proceedings are typically civil rather than criminal proceedings. However, any information obtained through the examination process may be used in other criminal proceedings against the person, subject to the use and derivative use immunities as described above.

1.230         The committee considers that the amendments impose significant limitations on fair hearing rights. The committee considers for the reasons outlined above that these limitations have been sufficiently justified for the purposes of international human rights law.

1.231         The committee considers that the powers granted to the ACC and LEI Commissioner to compulsorily question a person in the context of confiscation proceedings significantly limits fair hearing rights, in particular, the principle of equality of arms and the protection against self-incrimination. However, the statement of compatibility provides a detailed justification of why these powers are considered reasonable and necessary. On balance, having considered the relevant safeguards provided in the bill, the committee considers that the limitation on fair hearing rights has been justified.

Migration Amendment (Strengthening Biometrics Integrity) Bill 2015

Portfolio: Immigration and Border Protection

Introduced: House of Representatives, 5 May 2015

1.232         The Migration Amendment (Strengthening Biometrics Integrity) Bill 2015 (the bill) seeks to amend the Migration Act 1958 (the Migration Act) to implement a number of reforms to the provisions relating to the collection of personal identifiers. Specifically, the amendments to the Migration Act include:

• replacing the eight existing personal identifier collection powers with a broad, discretionary power to collect one or more personal identifiers or biometric data from non-citizens, and citizens at the border, for the purposes of the Migration Act and the Migration Regulations 1994 (the Migration Regulations);
• allowing flexibility in relation to the types of personal identifiers (as defined in the existing legislation) that may be required, the circumstances in which they may be collected, and the places where they may be collected;
• enabling personal identifiers to be provided either by way of an identification test, or by another way specified by the minister or officer (such as a live scan of fingerprints on a handheld device);
• enabling personal identifiers to be required by the minister or an officer, either orally, in writing, or through an automated system, and allow for existing deemed receipt provisions in the Migration Act to apply in relation to requests in writing; and
• enabling personal identifiers to be collected from minors and incapable persons for the purposes of the Migration Act and Migration Regulations under the new broad collection power without the need to obtain the consent, or require the presence of a parent, guardian or independent person during the collection of personal identifiers.

1.233         Measures raising human rights concerns or issues are set out below.

Broad discretionary power to collect biometric data

1.234         The powers to collect biometric data or personal identifiers from an individual are currently authorised under eight separate sections of the Migration Act depending on the particular circumstances. The bill would replace these powers with a broad discretionary power to collect personal identifiers in proposed section 257A of the Migration Act.[99] Personal identifiers include fingerprints, handprints, measurements of height and weight, photographs or images of a person's face and shoulders, an audio or visual recording of a person, an iris scan, a person's signature or other identifiers specified by regulation.^[100] The power would provide that the minister or an officer may require a person to provide one or more personal identifiers for the purposes of the Migration Act or Migration Regulations.[101]

1.235         The committee considers that these measures engage and limit the right to privacy, the right to equality and non-discrimination and the right to equality before the law.

Right to privacy

1.236         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:

• the right to personal autonomy and physical and psychological integrity over one's own body;
• the right to respect for private and confidential information, particularly the storing, use and sharing of such information;
• the prohibition on unlawful and arbitrary state surveillance.

1.237         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

1.238         The committee considers that as the proposed power expands the circumstances in which biometric data or personal identifiers may be collected the power engages and limits the right to privacy. The statement of compatibility acknowledges that the measure engages and limits the right to privacy but argues that this limitation is justifiable.[102] The statement of compatibility states that: 

The restriction on the privacy of persons whose information is collected is aimed at the legitimate goal of ensuring the integrity of Australia's borders and visa system more generally, including by detecting the ingress, egress, and change in status of persons of concern, both Australians and non-citizens.[103]

1.239         The committee agrees that this may be regarded as a legitimate objective for the purpose of international human rights law.

1.240         The committee notes the information provided in the statement of compatibility that the collection of personal identifiers would enable the department to conduct identity, security, law enforcement and immigration checks that are of higher integrity than checks possible using biographic details, such as name and date of birth, alone.[104] However, while the proposed power appears to be rationally connected to the stated objective it may not be a proportionate means to achieve this stated objective. The committee notes that in order for a limitation on human rights to be proportionate it must be only as rights restrictive as strictly necessary. The bill would enable the collection of personal identifiers wherever this is considered necessary for the purposes of the Migration Act or regulations under that Act. There is no requirement that the collection of the identifier be considered necessary in the circumstances or that an officer must be reasonably satisfied that the collection would assist in the identification of an individual. Accordingly, the bill could permit the collection of personal identifiers where it is not strictly necessary or where identity could be verified in a less intrusive manner. Accordingly, the committee considers that the statement of compatibility has not demonstrated that the measures in the bill are the least rights restrictive way of achieving the legitimate objective and so the measures may not be a proportionate limitation on the right to privacy.

1.241         Further, the committee notes that the measures in the bill, in addition to allowing the collection of personal identifiers by an authorised identification test, will allow personal identifiers to be collected in a manner 'specified by the minister or officer'.  If personal information is collected in this way, particular safeguards provided for under the Act, such as that the identification test 'must be carried out in circumstances affording reasonable privacy to the person' would not apply.[105] Whilst noting that the power is 'extremely broad' it  indicates that the power would only be used in limited circumstances. However, the bill is not restricted in the way suggested by the statement of compatibility. The committee considers that the statement of compatibility has not demonstrated that this broad power imposes a necessary or proportionate limitation on the right to privacy. The committee considers that this power has the potential to be used to bypass a number of safeguards in the Migration Act and the Migration Regulations which seek to ensure that the collection of personal identifiers is done in a manner that is least intrusive on an individual's privacy. No rationale is provided for removing such safeguards, beyond an indication of the government's current intended use of this provision.

1.242         The committee considers that the broad discretionary power to collect personal identifiers engages and limits the right to privacy. As noted above, the statement of compatibility has not sufficiently justified this limitation for the purpose of international human rights law. The committee therefore requests the advice of the Minister for Immigration and Border Protection as to whether the measure is a proportionate means of achieving the stated objective.

Right to equality and non-discrimination

1.243         The rights to equality and non-discrimination are protected by articles 2, 16 and 26 of the ICCPR.

1.244         These are fundamental human rights that are essential to the protection and respect of all human rights. They provide that everyone is entitled to enjoy their rights without discrimination of any kind, and that all people are equal before the law and entitled without discrimination to the equal and non-discriminatory protection of the law.

1.245         The ICCPR defines 'discrimination' as a distinction based on a personal attribute (for example, race, sex or religion),[106] which has either the purpose (called 'direct' discrimination), or the effect (called 'indirect' discrimination), of adversely affecting human rights.[107] 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.[108]

Compatibility of the measure with the right to equality and non-discrimination

1.246         The statement of compatibility acknowledges that the measures may engage the right to equality and non-discrimination. The analysis in the statement of compatibility focuses primarily on the distinctions between citizens and non-citizens, noting that to the extent that the amendments single out non-citizens, this is a permissible aspect of immigration control.[109] The committee accepts this type of differential treatment between citizens and non-citizens may be acceptable under international human rights law so long as there is an objective and reasonable justification for this treatment.

1.247         As set out at paragraph [1.239] above, the committee agrees that the measure pursues a legitimate objective for the purpose of international human rights law. The committee notes, however, that the statement of compatibility states that:

The amendment does not target any particular person or group based on any criteria, such as type of visa, although there will be some risk-based and intelligence-based targeting.[110]

1.248         The statement of compatibility does not explain whether 'risk-based and intelligence-based targeting' may have a disproportionate or unintended negative impact on particular groups based on race or religion and therefore be potentially indirectly discriminatory. Where a measure impacts on particular groups disproportionately, it establishes prima facie that there may be indirect discrimination. 

1.249         If a provision has a disproportionate negative effect or is indirectly discriminatory it may nevertheless be justified if the measure pursues a legitimate objective, the measure is rationally connected to that objective and the limitation on the right to equality and non-discrimination is a proportionate means of achieving that objective. The statement of compatibility does not justify the possible limitation on the right to equality and non-discrimination imposed by 'targeting' and profiling.

1.250         The committee considers that information as to how the risk-based and intelligence based-targeting will be undertaken in practice will be critical to assessing whether such practices impose a proportionate limitation on the right to equality and non-discrimination.

1.251         The committee considers that the broad discretionary power to collect personal identifiers may engage and limit the right to equality and non-discrimination particularly in relation to profiling and targeting of individuals for scrutiny. As noted above, the statement of compatibility has not sufficiently justified this limitation for the purpose of international human rights law. The committee therefore requests the advice of the Minister for Immigration and Border Protection as to whether the measure is a proportionate means of achieving the stated objective.

Right to equality before the law

1.252         The right to equality before the law is protected by article 26(1) of the ICCPR.[111] It is an important aspect of the right to equality and non-discrimination.

1.253          The right to equality before the law provides that law must not be applied by law enforcement authorities or the judiciary in an arbitrary or discriminatory manner. [112]

Compatibility of the measure with the right to equality before the law

1.254         The committee considers that the measure engages and may limit the right to equality before the law. This is because, unless there are sufficient safeguards, the collection of personal identifiers has the potential, in practice, to be applied in a manner which may target, for example, persons with certain physical characteristics or particular national or ethnic origins.^[113]  Where this kind of targeting occurs, without objective or reasonable justification, it will be incompatible with the right to equality before the law. That is, it may result in the law being applied in ways that are arbitrary or discriminatory. This form of targeting is often referred to as racial profiling.[114]

1.255         As set out at paragraph [1.239] above, the committee agrees that the measure pursues a legitimate objective for the purpose of international human rights law. The committee notes that the statement of compatibility states that the measure 'does not target any person or group based on any criteria'.[115] However, the statement of compatibility explains that there will be 'some risk-based and intelligence based-targeting'.[116] No specific information is provided on the compatibility of the measure with the rights to equality before the law or whether there is a reasonable and objective basis for determining such risks. Further, the statement of compatibility does not identify any safeguards which may assist to ensure that the measure is not applied in an arbitrary or discriminatory manner. The committee notes that Australia's obligations under international human rights law extend to ensuring that there are sufficient safeguards in place to prevent abuse.

1.256         The committee considers that information as to how the risk-based and intelligence based-targeting will be undertaken in practice will be critical to assessing whether such practices impose a proportionate limitation on the right to equality before the law.

1.257         The committee considers that the broad discretionary power to collect personal identifiers may engage and limit the right to equality before the law, particularly in relation to profiling and targeting of individuals for scrutiny. As noted above, the statement of compatibility does not provide a specific assessment of whether the right to equality before the law is engaged and limited. The committee therefore requests the advice of the Minister for Immigration and Border Protection as to whether the measure is compatible with the right to equality before the law and particularly whether the limitation is a proportionate measure for the achievement of that objective.

Removal of restrictions on the collection of personal identifiers from minors

1.258         The bill seeks to remove the current restrictions on collection of personal identifiers on minors. Specifically, the measure would allow for the collection of personal identifiers of children under the age of 15 without the presence of a parent, guardian or independent person.

1.259         The committee considers that the measure engages and limits the rights of the child.

Rights of the child

1.260         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.

1.261         State parties to the CRC are required to ensure to children the enjoyment of fundamental human rights and freedoms and are required to provide for special protection for children in their laws and practices. In interpreting all rights that apply to children, the following core principles apply:

• rights are to be applied without discrimination;
• the best interests of the child are to be a primary consideration;
• there must be a focus on the child's right to life, survival and development, including their physical, mental, spiritual, moral, psychological and social development; and
• there must be respect for the child's right to express his or her views in all matters affecting them.

Compatibility of the measure with the rights of the child

1.262         The statement of compatibility explains that when the original personal identifiers provisions were added to the Migration Act in 2003 it was considered by the government that 15 years of age was an appropriate minimum age for the collection of fingerprints. The statement of compatibility further explains that the government no longer considers this appropriate for a number of reasons including:

• the need to protect minors from people smugglers and traffickers; and
• recent terrorist-related incidents involving minors travelling to conflict in the Middle East.[117]

1.263         The committee agrees with the statement of compatibility that the amendments have the dual legitimate objective of maintaining effective immigration controls and the protection of vulnerable minors. The committee considers that the measures are rationally connected to the legitimate objective as fingerprinting of minors may enhance integrity checks at Australia's borders and may assist in the identification of minors who are vulnerable and at risk.

1.264         However, the committee considers that the statement of compatibility has not demonstrated that the amendments impose a proportionate limitation on the rights of the child in pursuit of that legitimate objective.

1.265         The statement of compatibility states that:

...these amendments will address a known vulnerability in Australia's security and immigration framework on a case by case basis, based on risk and intelligence. The department's intent is that only a small number of minors would be required to provide fingerprints. Departmental staff will be given clear policy guidance about the restrictive use of finger print checks for minor.[118]

1.266         However, while the statement of compatibility says it is 'the department's intent' that this only be used in a narrow range of circumstances, the bill is not limited in such a way. The committee considers that the statement of compatibility has not sufficiently explained why it is necessary to provide broad discretionary powers with few statutory safeguards if the intention is only to target specific minors.

1.267          In addition, the committee notes that the amendment would remove requirements for parents and guardians to consent to, and be present during, the fingerprinting of minors. In relation to this specific amendment the statement of compatibility provides that:

The intent is that the consent and presence of parents would only be bypassed where necessary – there are circumstance, for example where the person who appears to be a child's parent is in fact trafficking the child, where consent may be refused for reasons which undermine the very purpose of the legislation and the best interest of the child themselves.[119]

1.268         The committee considers that the statement of compatibility has not sufficiently explained why it is necessary to provide broad discretionary powers with few statutory safeguards if the intention is that minors would usually be fingerprinted with the consent and or presence of the minor's parents or guardians. It would, for example, be possible to have an exceptions based provision that would permit fingerprinting in more limited circumstances.

1.269         As the measures do not appear to be the least rights restrictive approach to achieving the government's legitimate objective, the committee considers that the measures have not been justified as proportionate and may not be compatible with the obligation to consider the best interests of the child.

1.270         The committee considers that removing the current restrictions on collection of personal identifiers on minors engages and limits the obligation to consider the best interests of the child as a primary consideration. As noted above, the statement of compatibility has not sufficiently justified this limitation for the purpose of international human rights law. The committee therefore requests the advice of the Minister for Immigration and Border Protection as to whether the measure is a proportionate means of achieving the stated objective.

Norfolk Island Legislation Amendment Bill 2015

Tax and Superannuation Laws Amendment (Norfolk Island Reforms) Bill 2015

A New Tax System (Medicare Levy Surcharge—Fringe Benefits) Amendment Bill 2015

Health and Other Services (Compensation) Care Charges Amendment (Norfolk Island) Bill 2015

Health Insurance (Approved Pathology Specimen Collection Centres) Tax Amendment (Norfolk Island) Bill 2015

Health Insurance (Pathology) (Fees) Amendment (Norfolk Island) Bill 2015

Private Health Insurance (Risk Equalisation Levy) Amendment (Norfolk Island) Bill 2015

Aged Care (Accommodation Payment Security) Levy Amendment (Norfolk Island) Bill 2015

Portfolio: Infrastructure

Introduced: House of Representatives, 26 March 2015

Purpose

1.271         The Norfolk Island Legislation Amendment Bill 2015, Tax and Superannuation Laws Amendment (Norfolk Island Reforms) Bill 2015, A New Tax System (Medicare Levy Surcharge—Fringe Benefits) Amendment Bill 2015, Health and Other Services (Compensation) Care Charges Amendment (Norfolk Island) Bill 2015, Health Insurance (Approved Pathology Specimen Collection Centres) Tax Amendment (Norfolk Island) Bill 2015, Health Insurance (Pathology) (Fees) Amendment (Norfolk Island) Bill 2015, Private Health Insurance (Risk Equalisation Levy) Amendment (Norfolk Island) Bill 2015 and Aged Care (Accommodation Payment Security) Levy Amendment (Norfolk Island) Bill 2015 (the bills) seek to:

• amend the Norfolk Island Act 1979 in order to implement reforms to certain governance and legal arrangements of Norfolk Island, including the abolition of the Norfolk Island Legislative Assembly and consequent establishment of the Norfolk Island Regional Council to act as the elected local government body for the territory, and the introduction of a mechanism which applies New South Wales state law to Norfolk Island as commonwealth law; and
• extend mainland social security (including payments such as the Age Pension, Newstart Allowance, Disability Support Pension and Youth Allowance), immigration (with the effect of ensuring that Norfolk Island is treated consistently with Australia's other inhabited external territories) and health arrangements (including the Medicare Benefits Schedule, the Pharmaceutical Benefits Scheme and the Private Health Insurance Rebate) to Norfolk Island.

1.272         Measures raising human rights concerns or issues are set out below.

Background

1.273         Previously the committee in its Seventh Report of the 44^th Parliament[120] raised concerns in relation to the exclusion of certain New Zealand citizens from access to benefits, such as the National Disability Insurance Scheme (NDIS), despite being required to contribute to the NDIS levy. In its concluding comments, the committee noted that 'under the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR), non-citizens are entitled to the enjoyment of the human rights guaranteed by the covenants without discrimination.'[121]

Exclusion of some categories of Australian permanent residents from eligibility for social security

1.274         Currently, on mainland Australia all permanent visa holders are entitled to social security under the Social Security Act 1991 (the Act).  Under the Norfolk Island Legislation Amendment Bill 2015 (the bill), the Act will be extended to Norfolk Island providing the same social security system on the island as is provided on mainland Australia. However, the extension of social security payments to residents of Norfolk Island will not apply to New Zealand citizens that hold an Australian permanent visa.[122]

1.275         The committee notes that while the extension of social security benefits will, in the main, promote access to healthcare and advance the right to social security, it also engages and limits the right to equality and non-discrimination and the right to social security.

Right to equality and non-discrimination

1.276         The right to equality and non-discrimination is protected by articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR).

1.277         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.

1.278         The ICCPR defines 'discrimination' as a distinction based on a personal attribute (for example, race, sex or religion),[123] which has either the purpose (called 'direct' discrimination), or the effect (called 'indirect' discrimination), of adversely affecting human rights.[124] 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.[125]

Compatibility of the measure with the right to equality and non-discrimination

1.279         The explanatory memorandum for the bill states that:

Item 323 inserts a new subsection 7(2AA) into the Social Security Act 1991 so that subparagraph (2)(b)(ii) does not apply to a New Zealand citizen who resides on Norfolk Island. This and item 324 put long-term Norfolk Island residents who are New Zealand citizens in the same position as residents of Australia who are New Zealand citizens, despite Norfolk Island residents not previously being required to hold an Australian visa to remain on Norfolk Island.[126]

1.280         The committee notes that the new subsection 7(2AA) would exclude New Zealand citizens who reside on Norfolk island and hold an Australian permanent visa from being considered an Australian resident under the Social Security Act 1991 (the Act). The amendment proposed in the bills would result in  Australian permanent resident New Zealand citizens living on Norfolk Island being ineligible for social security benefits. It would appear that this could result in a New Zealand citizen living on mainland Australia and receiving social security benefits, losing eligibility if they were to move to Norfolk Island. The committee notes that the proposed provision does not merely put long-term Norfolk Island residents who are New Zealand citizens in the same position as residents of Australia who are New Zealand citizens as is set out in the explanatory memorandum (EM).^[127] Further, the extension of social security benefits to Norfolk Island applies to Australian permanent residents who are citizens of all countries except New Zealand. No rationale is provided in the EM or statement of compatibility for this specific exclusion of Australian permanent residents who are New Zealand citizens. Accordingly, the measure appears to be directly discriminatory and therefore limits the right to equality and non-discrimination. The committee notes that even if a provision directly or indirectly discriminates against specific groups it may nevertheless be justifiable where it pursues a legitimate objective, the measure is rationally connected to that objective and the limitation on the right to equality and non-discrimination is a proportionate means of achieving that objective.

1.281         As the statement of compatibility does not identify this amendment as engaging human rights it does not explain whether the limitation is justifiable. Further, the statement of compatibility does not more generally address the engagement of the bill with the right to equality and non-discrimination. The committee's usual expectation where a measure may limit a human right is that the accompanying statement of compatibility provides 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,^[128] 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'.^[129] 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.

1.282         The committee therefore considers that the exclusion of some categories of Australian permanent residents from eligibility for social security limits the right to equality and non-discrimination. As set out above, the statement of compatibility does not provide an assessment of the limitation for the purpose of international human rights law. The committee therefore seeks the advice of the Assistant Minister for Infrastructure and Regional Development as to:

• whether the proposed changes are aimed at achieving a legitimate objective;
• whether there is a rational connection between the limitation and that objective; and
• whether the limitation is a reasonable and proportionate measure for the achievement of that objective.

Right to social security

1.283         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.

1.284         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).

1.285         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.

1.286         Specific situations which are recognised as engaging a person's right to social security, include health care and sickness; old age; unemployment and workplace injury; family and child support; paid maternity leave; and disability support.

Compatibility of the measure with the right to equality and non-discrimination and the right to social security

1.287         While the statement of compatibility acknowledges that the bill engages the right to social security, it does not address this particular provision or its implications for the enjoyment of the right to social security by Australian permanent residents living on Norfolk Island who are New Zealand citizens. The committee notes that for the large majority of residents on Norfolk Island, the extension of social security benefits will promote access to healthcare and advance the right to social security. However, the exemption of Australian permanent residents who are New Zealand citizens from receiving these benefits limits the right to social security for this group.

1.288         As the statement of compatibility for the bill has not identified this limitation, it does not provide a justification for the limitation for the purposes of international human rights law. As set out above at [1.281], 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, whether the measure is rationally connected to achieving that objective and whether it is a proportionate limitation on the right in pursuit of that legitimate objective

1.289         The committee therefore considers that the exclusion of some categories of Australian permanent residents from eligibility for social security limits the right to social security for this group. As set out above, the statement of compatibility does not provide an assessment of the limitation for the purpose of international human rights law. The committee therefore seeks the advice of the Assistant Minister for Infrastructure and Regional Development as to:

• whether the proposed changes are aimed at achieving a legitimate objective;
• whether there is a rational connection between the limitation and that objective; and
• whether the limitation is a reasonable and proportionate measure for the achievement of that objective.

Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015

Portfolio: Employment
Introduced: House of Representatives, 25 March 2015

Purpose

1.290         The Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015 (the bill) amends the Safety, Rehabilitation and Compensation Act 1988 (the Act) in relation to:

• eligibility requirements for compensation;
• the financial viability of the Comcare scheme;
• medical expense payments;
• requirements for determining compensation payable;
• household and attendant care services;
• suspension of compensation payments for certain citizens absent from Australia;
• taking or accruing leave while on compensation leave;
• calculation of compensation payments;
• the compulsory redemption threshold;
• legal costs for proceedings before the Administrative Appeals Tribunal;
• compensation for permanent impairment;
• single employer licences;
• gradual onset injuries and associated injuries;
• obligations of mutuality; and
• exception of defence-related claims from certain changes.

1.291         The bill also amends the Military, Rehabilitation and Compensation Act 2004, Safety, Rehabilitation and Compensation Act 1988 and Seafarers Rehabilitation and Compensation Act 1992 in relation to the vocational nature of rehabilitation services and return to work outcomes.

1.292         The bill additionally amends the Administrative Decisions (Judicial Review) Act 1977 to provide that decisions relating to compensation paid for detriment caused by defective administration are not subject to review.

1.293         Measures raising human rights concerns or issues are set out below.

Redefining work related injuries (Schedule 1)

1.294         Schedule 1 of the bill would tighten the eligibility criteria for accessing Comcare by reducing the number of injuries and disease that will be compensable under the Act. Currently where a condition, such as a heart attack or stroke occurs at the workplace that is sufficient for workers' compensation liability to exist. The bill would change these criteria so that workers' compensation is only available where either an underlying condition or the culmination of that condition is significantly contributed to by the employee's employment.

1.295         The committee considers that the measure engages and limits the right to social security and the right to health.

Right to social security

1.296         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.

1.297         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).

1.298         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.

1.299         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 health and a healthy environment

1.300         The right to health is guaranteed by article 12(1) of ICESCR, and is fundamental to the exercise of other human rights. The right to health is understood as the right to enjoy the highest attainable standard of physical and mental health, and to have access to adequate health care and live in conditions that promote a healthy life (including, for example, safe and healthy working conditions; access to safe drinking water; adequate sanitation; adequate supply of safe food, nutrition and housing; healthy occupational and environmental conditions; and access to health-related education and information). As set out above in relation to the right to social security, under article 2(1) of ICESCR, Australia has certain minimum obligations in relation to the right to health (see paragraph [1.298]).

Compatibility of the measure with the right to social security and the right to health

1.301         The statement of compatibility states that the measure engages and limits the right to social security and the right to health:

Because the effect of the amendments is that some injuries will no longer be compensable under the Act...[130]

1.302         The statement of compatibility explains that the legitimate objective of the measures is to re-align the Act so that it better achieves its purpose of compensating individuals for injuries and diseases that are related to a person's work. The committee considers that, without further information, this is not a legitimate objective for human rights purposes.

1.303         As set out in the committee's Guidance Note 1,^[131] and the Attorney-General's Department's guidance on the preparation of statements of compatibility, the 'existence of a legitimate objective must be identified clearly with supporting reasons and, generally, empirical data to demonstrate that [it is] important'.^[132] 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. In this respect, the committee notes that detailed information is not provided explaining why the changes pursue a legitimate objective and how they may be proportionate. Further relevant information would include, for example, the sustainability of the Comcare scheme, the ability of insured employers to meet premium increases, and the other support available to individuals who are injured or unwell and who would no longer be eligible for Comcare.

1.304         The committee therefore considers that the redefining work related injuries measure engages and limits the right to health and the right to social security. As set out above, the statement of compatibility for the bill does not provide sufficient information to establish that the measure pursues a legitimate objective for human rights purposes (that is addresses a pressing or substantial concern). 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.

Introduction of 'Compensation Standards' (Schedule 1)

1.305         Schedule 1 of the bill would give Comcare the power to determine by legislative instrument a 'Compensation Standard' which would set out for an ailment the factors that must be met before an employee may be said to be suffering from that ailment. If the employee does not meet the Compensation Standard for an ailment then they will not be taken to have suffered a compensable injury under the Act.

1.306         The committee considers that the measures engage and limit the right to health, the right to social security as the measures will reduce access to workers' compensation.

Right to social security and the right to health

1.307         These rights are described above at paragraphs [1.296] to [1.300].

Compatibility of the measures with the right to health and social security

1.308         The statement of compatibility explains the legitimate objective of the measure as:

The legitimate objective of the amendments is to ensure that an employer's liability will not extend to diseases or injuries that are manifestations of underlying mental health conditions which manifest in the workplace but have no significant basis in employment.[133]

1.309         The committee agrees that this may be a legitimate objective for the purposes of human rights law. Nevertheless, whilst the committee accepts that limiting an employer's liability in this way may be acceptable, it also notes that for the purpose of international human rights law, an 'underlying' condition is a disability, for which an employer owes a duty to ensure a healthy work environment.[134] The committee agrees that the measure is rationally connected to this objective as the amendments will enable Comcare to establish criteria for particular ailments which will determine whether an employee is eligible for worker compensation.

1.310         However, the committee considers that the statement of compatibility has not established that the measure is proportionate to that objective. Currently, the Act provides a general framework for assessing injuries and their connection with employment. This measure would enable Comcare to impose additional requirements that an employee must satisfy in relation to specific ailments in order to qualify for compensation , called the 'Compensation Standard'. The measure gives broad discretion to Comcare in establishing the 'Compensation Standard'. There is no requirement for Comcare to act on advice from medical professionals nor a specific requirement to consult medical professionals before making a Compensation Standard, or that a Compensation Standard be based on objective evidence.

1.311         The committee considers that the statement of compatibility has not explained why Compensation Standards are necessary. Moreover, in the absence of safeguards, the committee notes that Comcare will have the power, through Compensation Standards, to limit access to workers' compensation in circumstances that may be inconsistent with medical evidence. Accordingly, the committee considers that the statement of compatibility has not explained how these broad powers are a proportionate means of achieving the legitimate objective.

1.312         The committee therefore considers that the measure granting Comcare the power to establish 'Compensation Standards' engages and limits the right to health and the right to social security. As set out above, the statement of compatibility for the bill does not provide sufficient information to establish that the bill may be regarded as proportionate to its stated objective (that is, the least rights restrictive alternative to achieve this result). The committee therefore seeks the advice of the Minister for Employment as to whether the measure imposes a proportionate limitation on the right to health and the right to social security.

Workplace rehabilitation plans (Schedule 2)

1.313         Schedule 2 of the bill would introduce provisions in relation to 'workplace rehabilitation plans'.^[135] Currently a rehabilitation program for an injured employee will set out the details of service and activities to assist an injured worker in rehabilitation and return to work.^[136] The new 'workplace rehabilitation plan' continues to concern the rehabilitation of an injured employee but emphasises the vocational nature of the services provided under the scheme, and removes references to other forms of treatment.^[137] The bill provides that a workplace rehabilitation plan may require an employee to carry out specified activities, and that the obligation to do so becomes part of the employee's responsibilities under the plan.[138]

1.314         The measure engages and may limit the right to health and the right of persons with disabilities to rehabilitation.

Rights of persons with disabilities to rehabilitation

1.315         Article 26 of the Convention on the Rights of Persons with Disabilities (CRPD) protects the rights of persons with disabilities to rehabilitation (right to rehabilitation). This right obliges Australia to take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life. To that end, Australia is required to organise, strengthen and extend comprehensive habilitation and rehabilitation services and programs, particularly in the areas of health, employment, education and social services. These services and programs need to:

• begin at the earliest possible stage, and are based on the multidisciplinary assessment of individual needs and strengths;
• support participation and inclusion in the community and all aspects of society, are voluntary, and are available to persons with disabilities as close as possible to their own communities, including in rural areas.^[139]

Compatibility of the measure with the rights of persons with disabilities to rehabilitation

1.316         The statement of compatibility acknowledges that, to the extent that the measure could be viewed as narrowing the scope of medical rehabilitation, that is, rehabilitation for the purpose of increasing independent functioning, the amendments may limit the right to rehabilitation.^[140] The committee agrees that the measure engages and may limit the right to rehabilitation to the extent that they narrow the scope of medical rehabilitation or mandate participation.

1.317         The statement of compatibility identifies the objective of the measure as to:

enable the Comcare scheme to more effectively pursue one of its core purposes: to, as far as possible, provide for early intervention and rehabilitation support for injured employees to stay in or return to suitable employment.^[141]

1.318         The committee notes that the statement of compatibility sets out a range of reasons as to why this objective is important and addresses a pressing concern.^[142] Based on the information provided the committee considers that the measures pursue a legitimate objective for the purpose of justifying a limitation on human rights.

1.319         The committee notes that in order to constitute a permissible limitation on human rights a measure must additionally be rationally connected to and a proportionate means of achieving the stated objective. The statement of compatibility argues that the measure is also rationally connected and a proportionate means of achieving this objective because:

First, the amendments are reasonable and necessary as they clarify and strengthen existing rehabilitation obligations and responsibilities of employers and employees and provide for early access to rehabilitation support which underpins an effective workers' compensation system. It is reasonable to require employees to fulfil their responsibilities under a workplace rehabilitation plan because active participation in rehabilitation is essential for an employee's recovery.

Second, by emphasising the vocational nature of rehabilitation and returning and maintaining employees in work, the amendments positively engage the right to work under both the ICESCR and the CRPD. ^[143]

1.320          However, while the committee acknowledges these points, it notes that the statement of compatibility does not explain how specifically the measures will support the stated legitimate objective and whether less rights restrictive measures would achieve the same result.

1.321         The committee considers that the introduction of workplace rehabilitation plans engages and may limit the right to rehabilitation. The committee agrees that the measure pursues a legitimate objective. However, as set out above, the statement of compatibility does not sufficiently justify the potential limitation for the purpose of international human rights law as rationally connected to and a proportionate means of achieving that objective. The committee therefore seeks the advice of the Minister for Employment as to:

• whether there is a rational connection between the limitation and the legitimate objective; and
• whether the limitation is a reasonable and proportionate measure for the achievement of that objective, and particularly whether a less rights restrictive alternative would achieve the same result.

Right to health and a healthy environment

1.322         The right to health is set out above at [1.300].

Compatibility of the measure with the right to health

1.323         The statement of compatibility states that, to the extent that the measures could be viewed as narrowing the scope of medical rehabilitation, the measures may also limit the right to health.^[144] The committee agrees that the measures may accordingly limit the right to health as medical rehabilitation services are an important aspect of this right. While the committee notes that the measure appears to be in pursuit of a legitimate objective, as noted above at [1.319] the statement of compatibility has not provided sufficient reasoning as to whether the measure is rationally connected to and a proportionate means of achieving that objective as required to permissibly limit a right under international human rights law.

1.324         The committee considers that the introduction of workplace rehabilitation plans engages and may limit the right to health. The committee agrees that the measure pursues a legitimate objective. However, as set out above, the statement of compatibility does not sufficiently justify the potential limitation for the purpose of international human rights law as rationally connected to and a proportionate means of achieving that objective. The committee therefore seeks the advice of the Minister for Employment as to:

• whether there is a rational connection between the limitation and the legitimate objective; and
• whether the limitation is a reasonable and proportionate measure for the achievement of that objective, and particularly, whether a less rights restrictive alternative would achieve the same result.

Obligations under a workplace rehabilitation plan not subject to review (Schedule 2)

1.325         Schedule 2 of the bill would also provide that an injured employee's responsibilities and the obligations of a liable employer under a workplace rehabilitation plan are not reviewable.^[145] Currently section 38 out the Act sets out when decisions by Comcare are reviewable.[146] The committee accordingly considers that the measure engages and limits the right to a fair hearing.

Right to a fair hearing

1.326         The right to a fair trial and fair hearing is protected by article 14 of the International Covenant on Civil and Political Rights (ICCPR). The right applies to both criminal and civil proceedings, and to cases before both courts and tribunals. The right is concerned with procedural fairness and encompasses notions of equality in proceedings, the right to a public hearing and the requirement that hearings are conducted by an independent and impartial body.

Compatibility of the measure with the right to a fair hearing

1.327         The committee considers that the measure limits the right to a fair hearing as it renders obligations under a workplace rehabilitation plan non-reviewable. The statement of compatibility acknowledges that the measure limits the right to a fair hearing but argues that the limitation is justifiable.^[147] It argues that the legitimate objective of the measure is to:

avoid frustration of the purpose of these provisions which is to promote compliance with rehabilitation plans rather than arguments regarding particular employee responsibilities and obligations of the liable employer.^[148]

1.328         However, the committee notes that the statement of compatibility does not provide any detailed analysis as to why the measure is needed in pursuit of this stated objective or why current arrangements would be insufficient to address this 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. This conforms with the committee's Guidance Note 1,^[149] 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'.^[150] 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.

1.329         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. The committee considers that the statement of compatibility has not demonstrated that the measure is rationally connected to and a proportionate means of achieving the stated objective. The statement of compatibility argues that the measure is a reasonable, necessary and proportionate means of achieving the stated objective because:

Firstly, there are substantial safeguards in place to ensure that employee responsibilities are tailored and appropriate to the individual circumstances of an employee. The plans are developed in consultation with the employee and his or her medical practitioner which will ensure that the workplace rehabilitation plan reflects the capacity and abilities of an individual employee.

Secondly, the formulation (and any variation of) a workplace rehabilitation plan will be reviewable by Comcare and the AAT. In practice this means that the development of the plan or the objectives and main components of a workplace rehabilitation plan will be reviewable. ^[151] 

1.330         However, as limited information has been provided as to the content or adequacy of such safeguards it is difficult for the committee to make a full assessment of the human rights compatibility of the proposed measure.

1.331         The committee therefore considers that the lack of reviewability of obligations under a workplace rehabilitation plan limits the right to a fair hearing. As set out above, the statement of compatibility does not sufficiently justify that limitation for the purpose 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.

Expanded definition of suitable employment (Schedule 2)

1.332         Under section 40 of the Act employers currently have a duty to provide 'suitable employment' to injured employees who have undertaken or are undertaking a rehabilitation program. Schedule 2 of the bill would broaden the definition of 'suitable employment'. Employment with any employer who is not the Commonwealth or a licensee (including self-employment) may now be considered 'suitable employment'. Failure by an employee to accept or engage in such 'suitable employment' would be subject to the sanctions regime in proposed Schedule 15 of the Bill. New section 34K requires a liable employer to take all reasonably practicable steps to provide an injured employee with suitable employment or assist the employee to find such employment.[152]

1.333         The committee considers that the expanded definition of suitable employment engages and may limit multiple rights.

Multiple rights

The committee considers that the measure engages and may limit the following rights:

• the right to work;
• the right to just and favourable conditions at work;
• the right of persons with disabilities to work; and
• the right to rehabilitation.

1.334         The committee notes in particular that these rights include the ability to freely choose work.

Compatibility of the measure with multiple rights

1.335         The statement of compatibility states that the measure engages and may limit the right to work and the right to persons with disabilities to work:

However, it could also be argued that the amendment may indirectly limit the right to freely choose one's work which is a key aspect of the right to work. Article 27 of the CRPD reiterates the right of persons with disabilities to have the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible. States parties have responsibilities to, among other things, provide assistance in returning to employment and promoting vocational and professional rehabilitation, job retention and return-to-work programs for persons with disabilities.[153]

1.336         The committee agrees that, the expansion of what constitutes 'suitable employment' together with a consequential obligation on an injured employee to accept and maintain 'suitable employment', limits the ability of such injured employees to freely choose work. As noted above, this accordingly engages and may limit a range of human rights. However, the statement of compatibility argues that any limitation on human rights is justifiable and the legitimate objective of the measure is to:

to strengthen the obligations of employers to provide greater opportunities for injured employees to engage in suitable employment and thereby improve health and return to work outcomes for injured employees. Under the current Act, an employee may have some capacity to work but be prevented from doing so due to a lack of suitable employment with their pre-injury employer. The amendments could therefore provide more employment options for some injured employees.[154] 

1.337         The committee considers that this may be regarded as a legitimate objective for the purpose of international human rights law. The committee also agrees that the measure is rationally connected to this objective. The statement of compatibility further argues that the measure is a proportionate approach to achieving this objective as:

First, the amendments are necessary for supporting injured employees to stay in, or return to, suitable employment. The amendments clarify and strengthen the obligations of employers and employees to support employees to remain in or engage in suitable employment if they have the potential to be in suitable employment. The amendments will be supported by the ability of Comcare to implement an incentive scheme for employers under new section 70D as inserted by Item 84 to provide for employment opportunities outside of the employment which gave rise to their injury.

Second, the amendments are reasonable and proportionate in that there are substantial safeguards in place to ensure that suitable employment is appropriate to the individual circumstances of an employee. Relevant considerations include the capacity of an employee to remain or engage in suitable employment which must be assessed in consultation with the employee and their medical practitioner to ensure that employment reflects the capacity and abilities of an individual employee. If necessary, a relevant authority is empowered to arrange a work readiness assessment to determine an employee's capacity to return to work and the medical and rehabilitation support needed to help achieve a safe and sustainable return to work.[155]

1.338         The committee considers that such explanation goes some way to demonstrating that the expanded definition of 'suitable employment' in context may be a proportionate means of achieving the stated objective to the extent that there are sufficient safeguards in place to ensure that such 'suitable employment' is appropriate to the individual circumstances. The committee notes that aspects of the proposed changes including the further obligations on employers with respect to suitable employment would appear to promote the right to work. However, the committee considers that further information regarding the specifics of the safeguards is needed for the committee to fully assess the human rights compatibility of the expanded definition of suitable employment.

1.339         The committee also notes that no information has been provided as to whether less rights restrictive measures would have achieved the same result. Specifically no information has been provided as to whether a regime where employees were encouraged rather than mandated to accept or engage in an expanded definition of 'suitable employment' has been provided.  In order to be a proportionate limitation on human rights a measure must be the least rights restrictive means of achieving the stated objective.

1.340         The committee considers that the expanded definition of suitable employment engages and limits multiple rights. As set out above, the statement of compatibility does not sufficiently justify that limitation for the purpose of international human rights law. The committee therefore seeks the advice of the Minister for Employment as to whether the limitation is a proportionate measure for the achievement of that objective (that is, particularly, whether there is a less rights restrictive and whether there are sufficient safeguards).

Amendments to the amount and type of medical expenses covered (Schedule 5)

1.341         Schedule 5 of the bill would make a number of changes to the type and amount of medical expenses covered by Comcare. The schedule requires Comcare and licensees to consider certain matters in determining whether medical treatment was reasonably obtained.  It is intended that Clinic Framework Principles will be established under regulation to assist in determining whether a medical treatment is reasonably obtained. The schedule also empowers Comcare to establish by regulation an amount payable for medical services and examinations.

1.342         These measures will limit the existing discretion afforded to Comcare and licensees to provide compensation for the cost of medical treatment and as a result this may reduce the extent to which an employee is fully compensated for medical expenses incurred as a result of a workplace injury. The measures may also limit patient choice with respect to medical practitioners where the medical practitioner is unwilling to charge for services at the rate prescribed under regulations established by provisions in these measures.

1.343         Accordingly, the measures engage and limit the right to social security and the right to health.

Right to social security and the right to health

1.344         These rights are described above at paragraphs [1.296] to [1.300].

Compatibility of the measures with the right to health and social security

1.345         The statement of compatibility explains that the measures may limit the right to social security and the right to health. The statement of compatibility also explains that the measures are intended to achieve two legitimate objectives:

• improving the sustainability of the scheme by focussing limited resources on medical treatment that is reasonable; and
• containing medical costs under scheme.

1.346         The committee agrees that these may be legitimate objectives for the purpose of international human rights law. The committee also agrees that the measures are rationally connected to that objective as the measures focus on establishing a Clinical Framework which will assist in determining whether medical treatments are reasonable. In addition, the introduction of a schedule of medical expenses is capable of reducing medical expenses payable under the scheme.

1.347         The committee notes that the statement of compatibility explains the measures as proportionate on the basis that:

The amendments are reasonable and proportionate because they promote greater transparency and consistency in Comcare's decision-making.[156]

1.348         The committee notes, however, that the measures give Comcare broad discretion to set scheduled fees for specific medical treatments. There is no requirement to have regard to rates endorsed by the Australian Medical Association or even to consult the Australian Medical Association. Accordingly, it may be possible that scheduled fees may be set at such a low level that the most appropriately trained and qualified medical practitioners are unwilling to provide services at that rate. Moreover, the amendments allow Comcare not only to consider the Clinic Framework Principles (which will be developed under regulations) when determining whether a medical treatment is reasonable but to any other matter that Comcare considers relevant. As a result, matters that are not strictly medical in nature may be considered. Accordingly, the committee considers that the statement of compatibility has not explained how these broad powers are a proportionate means of achieving the legitimate objective.

1.349         The committee therefore considers that the measures in Schedule 5 of the bill amending the amount and type of medical expenses covered under the Comcare scheme engage and limit the right to health and the right to social security. As set out above, the statement of compatibility for the bill does not provide sufficient information to establish that these measures may be regarded as proportionate to its stated objective (that is, the least rights restrictive alternative to achieve this result). The committee therefore seeks the advice of the Minister for Employment as to whether the measures impose a proportionate limitation on the right to health and the right to social security.

Compensable household and attendant care services (Schedule 6)

1.350         Schedule 6 of the bill would introduce a requirement that attendant care services be compensable only where they are provided by a registered provider and where there has been an independent assessment of an injured employee's need for household services and/or attendant care service.

1.351         The measure engages and may limit the right to social security and the right to health.

Right to social security and the right to health

1.352         These rights are described above at paragraphs [1.296] to [1.300].

Compatibility of the measures with the right to health and social security

1.353         The statement of compatibility notes that:

The registration requirements limit the right to social security and arguably the right to health, as the care provided by some individuals may no longer be compensable.[157]

1.354         The statement of compatibility explains that:

The legitimate objective of these amendments is to ensure that individuals providing attendant care services are appropriately trained and qualified.[158]

1.355         The committee agrees that this is a legitimate objective for human rights purposes and that the measures are rationally connected to that objective.

1.356         In terms of proportionality, the statement of compatibility notes that the measures are directed towards ensuring that employees are provided with appropriate and professional care. The statement of compatibility also notes that the amendment is proportionate as:

...it does not prevent family members from providing care and support to an injured worker. However, for this care to be compensated, the person providing the services must be suitably qualified and able to pass the requirements for registration with a registered entity.[159]

1.357         The committee notes that attendant care services can be highly personally intrusive including assistance with bathing and toileting. Consequently, it may be entirely reasonable in certain circumstances for an injured worker to prefer that such services be provided by a family member. The committee notes that this may be possible where the family member is or is able to become, suitably qualified and registered. The committee notes that such processes may take some time and in the interim this would either have to be done without compensation by a family member or, instead, by a registered provider. There may also be circumstances where a family member is providing sufficient and appropriate care but is unable to meet the qualifications or registration requirements.

1.358         The committee considers it could be possible to include statutory exemptions for family members to provide attendant care services without registration at the discretion of Comcare. This would appear to be a less rights restrictive approach than that adopted by this schedule. Accordingly, the committee considers that the statement of compatibility has not demonstrated that the measures are a proportionate means of achieving the legitimate objective.

1.359         The committee therefore considers that the measures which change when household and attendant care services are compensable engage and limit the right to health and the right to social security. As set out above, the statement of compatibility for the bill does not provide sufficient information to establish that these measures may be regarded as proportionate to its stated objective (that is, the least rights restrictive alternative to achieve this result). The committee therefore seeks the advice of the Minister for Employment as to whether the measures impose a proportionate limitation on the right to health and the right to social security.

Reducing compensation paid to employees suspended for misconduct (Schedule 9)

1.360         Schedule 9 of the bill would insert a provision which would reduce to zero the compensation paid to an injured worker who is suspended without pay.

1.361         This measure engages the right to social security and the right to health.

Right to social security and the right to an adequate standard of living

1.362         The right to social security and an adequate standard of living are described above at paragraphs [1.296] to [1.299].

Compatibility of the measures with the right to social security and the right to an adequate standard of living

1.363         The statement of compatibility explains that:

The amendment limits the right to social security by reducing the current level of workers' compensation payable to an injured employee who is suspended without pay.[160]

1.364         The committee also considers that the measure may limit the right to an adequate standard of living as an injured worker who is denied compensation payments may not be able to meet the expenses of providing an adequate standard of living as they may not be eligible for social security whilst they are suspended from work.

1.365         The statement of compatibility explains that:

The objective of the amendment is to correct an anomaly under which an employee who would not have earned anything if free from incapacity is able to receive an income because of his or her incapacity.[161]

1.366         The committee considers that, as expressed, this is not a legitimate objective for the purpose of human rights law as the objective does not appear to be meet a pressing or substantial concern.

1.367         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 purpose of international human rights law. This conforms with the committee's Guidance Note 1,^[162] 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'.^[163] 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.

1.368         The measure would reduce access to workers compensation where an employee is suspended for misconduct with out pay. This engages and limits the right to health and social security. The statement of compatibility has not established the legitimate objective for the measure. The committee therefore seeks the advice of the Minister for Employment as to whether this measure is compatible with the right to social security and the right to an adequate standard of living, and particularly:

• whether the proposed changes are aimed at achieving a legitimate objective;
• whether there is a rational connection between the limitation and that objective; and
• whether the limitation is a reasonable and proportionate measure for the achievement of that objective.

Calculation of compensation – introduction of structured reductions (Schedule 9)

1.369         Schedule 9 would also introduce structured reductions (commonly referred to as 'step-downs') in the calculation of weekly compensation payments for incapacity based on the period of incapacity. Currently, under the Act there is a single step down point at approximately 45 weeks at which point compensation is reduced to 75% of the injured employee's normal weekly earnings.

1.370         The amendments reduce compensation in three increments over a 52 week period at the end of which the incapacity payment is capped at 70% of the employee's average weekly remuneration.

1.371         The committee considers that the measure engages and limits the right to social security.

Right to social security

1.372         The right to is social security is described above at paragraphs [1.296] to [1.299].

Compatibility of the measures with the right to social security

1.373         The statement of compatibility explains that:

The amendments limit the right to social security by reducing the current levels of workers' compensation payable to injured workers...[164]

1.374         The statement of compatibility also explains that:

The objectives of these amendments are to:

• align the Comcare scheme with state and territory workers' compensation scheme
• address a concern identified by the [Safety, Rehabilitation and Compensation Act] Review that a single step down point after 45 weeks creates a disincentive for early return to work by injured employees[165]

1.375         The committee agrees that the objective set out in the second bullet point may be considered a legitimate objective for the purpose of international human rights law. The committee also considers that the measures may be rationally connected to the legitimate objective.

1.376         The statement of compatibility also states that the measures are reasonable necessary and proportionate:

Earlier step downs will encourage employees who are able to return to work to do so as quickly as possible (or, put another way, provide a disincentive to remain on income support any longer than is necessary); in the case of employees who are unable to return to work, a staggered approach to step downs will ease the transition to what may be an extended period of income support.[166]

1.377         The statement of compatibility explains that at all step-down stages targeted return-to-work measures will be introduced to facilitate return to work. The committee notes that the measures will be a matter of Comcare policy and not a statutory requirement. The committee also notes that whilst the earlier step-downs may encourage earlier re-engagement with work, for those injured employees who are unable to return to work the measures will simply mean that the injured employee suffers earlier reductions in income support. The step-downs are mandatory and do not take into account an employee's ability to return to work and do not allow for flexibility in applying the step-downs. Accordingly, the committee considers that the statement of compatibility has not justified the measures as the least rights restrictive and therefore has not justified the measures as proportionate.

1.378         The committee therefore considers that the introduction of earlier structured reductions in compensation for lost income engages and limits the right to social security. As set out above, the statement of compatibility for the bill does not provide sufficient information to establish that these measures may be regarded as proportionate to its stated objective (that is, the least rights restrictive alternative to achieve this result). The committee therefore seeks the advice of the Minister for Employment as to whether the measures impose a proportionate limitation on the right to social security.

Capping of legal costs (Schedule 11)

1.379         Schedule 11 of the bill proposes a new section 67A to the Act which would allow Comcare, by legislative instrument, to prescribe a Schedule of Legal Costs which would cap the amount of legal costs that the Administrative Appeals Tribunal (AAT) may award under the Act. Currently, section 67 of the Act allows the AAT to order that the costs incurred by the claimant, or a part of those costs, be payable by the responsible authority, Comcare or the Commonwealth.

1.380         The committee considers that this measure engages and may limit the right to a fair hearing, in particular, the right to equal access to the courts and tribunals.

Right to a fair hearing (equal access)

1.381         The right to a fair hearing is described above at paragraph [1.326]. All people are to have equal access to the courts, regardless of citizenship or other status. To be real and effective this may require access to legal aid and the regulation of fees or costs that could indiscriminately prevent access to justice.[167]

Compatibility of the measure with the right to a fair hearing

1.382         The statement of compatibility recognises that the measure limits the right to a fair hearing as it 'may discourage some claimants from bringing proceedings and affect their representation choices'. However, it states:

The legitimate objective of the amendment is to remove any incentives for employees to participate in drawn out proceedings. Prolonged litigation is detrimental to an employee's health and wellbeing and may affect their recovery and return to work.[168]

1.383         The statement of compatibility states that the amendment is proportionate to that objective as:

• any schedule of legal costs made under this provision will be a legislative instrument, developed in consultation with stakeholders and subject to parliamentary oversight;
• the amendment will not prevent employees from incurring legal costs that exceed the specified amounts in the schedule of legal costs; and
• the amendment will bring the Comcare scheme in line with some state schemes.

1.384         The Regulatory Impact Statement (RIS) provides additional reasons for introducing a schedule of legal costs. The RIS states that a formalised schedule of legal costs would limit the potential for over-charging and over-servicing and may reduce the incentive for individuals and their lawyers to litigate weak and unlikely claims, and provide an incentive to resolve disputes in a timely manner.[169]

1.385         The committee agrees that ensuring that legal proceedings do not become unnecessarily drawn out and are resolved in a timely manner is a legitimate objective for the purpose of international human rights law and the measure is rationally connected to that objective. However, it is concerned that the measure may not be proportionate. In particular, if the cap on the amount of legal fees that may be awarded is set too low, a claimant may end up having to bear the majority of his or her legal fees and may prevent that person from accessing his or her AAT review rights, despite having a meritorious claim. The committee notes that many law firms take on workplace injury cases on a 'no win no pay' arrangement, and if the schedule of legal costs is set too low, law firms may not provide representation for clients without the means to pay, regardless of the merits of the claim.

1.386         The committee notes that the availability or absence of legal assistance often determines whether or not a person can access judicial forums and participate in them in a meaningful way. The right to a fair hearing encompasses a right of equal access to the courts and tribunals, and the affordability of legal assistance can affect the right of equal access to the courts and tribunals. The UN Human Rights Committee has encouraged states to provide free legal aid for individuals who do not have sufficient means to pay for it and has noted that the imposition of fees on parties to legal proceedings that would de facto prevent their access to justice might give rise to issues under article 14(1) of the ICCPR.[170]

1.387         The committee is concerned that if the level of costs that may be awarded under a schedule of legal costs is set at below that which is necessary to litigate a case this may, de facto, prevent access to justice and so unjustifiably limit the right to a fair hearing.

1.388         The committee therefore considers that the cap on the amount of legal costs payable may limit the right to a fair hearing. Whether the cap on legal costs is proportionate to meet the stated objective will depend on whether the amount specified in the schedule of legal costs, to be set out in a legislative instrument, is sufficient to meet the claimant's reasonable costs to litigate their claim. The committee is unable to complete its assessment as to the compatibility of this measure until it has reviewed the relevant schedule of legal costs to be prescribed by legislative instrument.

Changes to payments for permanent impairment (Schedule 12)

1.389         Schedule 12 would make a number of changes to the way that compensation for permanent impairment is calculated. A number of changes would increase compensation to certain injured workers. In addition, the proposed changes to the way permanent impairment is calculated will result in reduced compensation for:

• employees with a permanent impairment resulting from a single injury (or multiple injuries arising out of the same incident or state of affairs) of greater than 10% and less than 40%; and
• employees with multiple injuries arising from one incident where each of the injuries reach the applicable threshold.

1.390         The committee considers that the measures in Schedule 12 engage and limit the right to social security.

Right to social security

1.391         The right to social security is described above at paragraphs [1.296] to [1.299].

Compatibility of the measure with the right to social security

1.392         The statement of compatibility explains that the measure limits the right to social security for certain injured workers. It also explains that the measures pursue the legitimate objective of:

...improv[ing] scheme equity by better targeting support. The level of compensation payable for permanent impairment should reflect the severity of an employee's injury and the impact that it has on their life.[171]

1.393         The committee agrees that this is a legitimate objective for the purpose of international human rights law and that the measures are rationally connected to that objective.

1.394         In terms of the proportionality of the measures the statement of compatibility explains:

The amendments are a reasonable, necessary and proportionate approach for a number of reasons. First, without significantly raising the amount of compensation payable for each level of permanent impairment, it is not possible to design a compensation regime that results in no injured employee being worse off. It is therefore necessary to prioritise resources in the Comcare scheme so that the amendments will achieve fairer outcomes that recognise the needs of severely impaired employees.[172]

1.395         The committee agrees that it is necessary to prioritise resources in the Comcare scheme and ensure that severely impaired employees are properly compensated. However, in order to establish the proportionality of the amendments it is necessary to show that the changes to calculations of permanent impairment are the most effective in responding to degrees of impairment and that any individual's loss of compensation under the amendments is both necessary as a result of resource constraints and proportionate in the operation of the whole scheme. Detailed evidence as to how the new calculation formulas have been derived and why they are the most appropriately suited to calculating compensation for permanent impairment is required to demonstrate that the amendments are proportionate.

1.396         The committee therefore considers that the changes to the calculation of permanent impairment compensation engages and limits the right to social security. As set out above, the statement of compatibility for the bill does not provide sufficient information to establish that these measures may be regarded as proportionate to its stated objective (that is, the least rights restrictive alternative to achieve this result). The committee therefore seeks the advice of the Minister for Employment as to whether the measures impose a proportionate limitation on the right to social security.

Removal of compensation for psychological or psychiatric injuries and ailment that are secondary injuries (Schedule 12)

1.397         Schedule 12 would also introduce provisions that would provide that permanent impairment compensation is not payable for psychological or psychiatric ailments or injuries that are secondary injuries. As a result no compensation would be payable for permanent impairment resulting from a secondary psychological or psychiatric injury, for example, a major depressive disorder that was the latent result of a spinal injury that arose out of, or in the course of, employment.

1.398         The committee considers this measure engages and limits the right to social security and the right to equality and non-discrimination.

Right to social security

1.399         The right to social security is described above at paragraphs [1.296] to [1.299].

Compatibility of the measures with the right to social security

1.400         The statement of compatibility explains that the measure limits the right to social security for certain injured workers. It also explains that the measures pursue the legitimate objective of:

...improv[ing] scheme equity by better targeting support. The level of compensation payable for permanent impairment should reflect the severity of an employee's injury and the impact that it has on their life.[173]

1.401         The committee agrees that this is a legitimate objective for the purpose of international human rights law and that the measures are rationally connected to that objective.

1.402         In terms of the proportionality of the measures the statement of compatibility explains:

First, as outlined above, it is necessary to amend existing provisions in the Act to ensure that resources are targeted appropriately.

Second, an employee's income replacement payments will not be affected and an employee will remain entitled to compensation for medical treatment and rehabilitation for the secondary injury. Only access to permanent impairment payments will be restricted.[174]

1.403         The committee agrees that it is necessary to prioritise resources in the Comcare scheme and ensure that severely impaired employees are properly compensated. However, the committee notes that no evidence has been provided to explain the economic cost to Comcare of compensating for secondary psychological or psychiatric injuries and ailments.  Accordingly, the statement of compatibility has not justified the measure as the least rights restrictive approach.

1.404         The committee therefore considers that the removal of compensation for psychological or psychiatric injuries and ailments that are secondary injuries engages and limits the right to social security. As set out above, the statement of compatibility for the bill does not provide sufficient information to establish that these measures may be regarded as proportionate to its stated objective (that is, the least rights restrictive alternative to achieve this result). The committee therefore seeks the advice of the Minister for Employment as to whether the measures impose a proportionate limitation on the right to social security.

Right to equality and non-discrimination

1.405          The rights to equality and non-discrimination are protected by articles 2, 16 and 26 of the ICCPR.

1.406         These are fundamental human rights that are essential to the protection and respect of all human rights. They provide that everyone is entitled to enjoy their rights without discrimination of any kind, and that all people are equal before the law and entitled without discrimination to the equal and non-discriminatory protection of the law.

1.407         The ICCPR defines 'discrimination' as a distinction based on a personal attribute (for example, race, sex or on the basis of disability),[175] which has either the purpose (called 'direct' discrimination), or the effect (called 'indirect' discrimination), of adversely affecting human rights.[176] 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.[177]

1.408         The Convention on the Rights of Persons with Disabilities (CRPD) further describes the content of these rights, describing the specific elements that States 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.

1.409         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.

1.410         Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) requires States 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 make decisions that have legal effect.

Compatibility of the measures with the right to equality and non-discrimination

1.411         As set out above at paragraph [1.401], the committee agrees that the measure has a legitimate objective and is rationally connected to that objective for the purpose of international human rights law.

1.412         In terms of the proportionality of the measure the statement of compatibility states that:

To the extent that the amendments will disproportionately affect employees suffering from psychological or psychiatric ailments and injuries, the right to non-discrimination is indirectly engaged. However, the indirect differential treatment of employees with such ailments and injuries is permissible as the amendments are justified by a legitimate aim and are an appropriate, objective and necessary approach to achieving that aim.[178]

1.413         The committee considers that the statement of compatibility has simply asserted that the amendments are a proportionate limitation on the right to equality and non-discrimination. No evidence has been provided in the statement of compatibility in support of this assertion.

1.414         The committee therefore considers that the removal of compensation for psychological or psychiatric injuries and ailment that are secondary injuries engages and limits the right to equality and non-discrimination. As set out above, the statement of compatibility for the bill does not provide sufficient information to establish that these measures may be regarded as proportionate to its stated objective (that is, the least rights restrictive alternative to achieve this result). The committee therefore seeks the advice of the Minister for Employment as to whether the measures impose a proportionate limitation on the right to social security.

Schedule 15

1.415         Schedule 15 of the bill seeks to amend the Act relating to the suspension and cancellation of the right to compensation. In particular, these amendments:

• identify key requirements of the Act that an injured employee must comply with as 'obligations of mutuality', and
• where obligations of mutuality have been breached, provide for the application of sanctions in stages, culminating in a cancellation of compensation, rehabilitation and review rights.

1.416         While many of the measures may be considered to be interrelated, the committee considers that there are three aspects of the proposed regime for suspending and cancelling workers' compensation that engage and may limit human rights:

• imposing 'mutual obligations' as conditions of continuing to access worker compensation;
• the process and procedure for cancellation of compensation where there are breaches; and
• the removal of review rights in certain circumstances.

Obligations of mutuality (Schedule 15)

1.417         The bill establishes that a number of the obligations imposed on an injured worker by the Act are 'obligations of mutuality.' An example of one such obligation, is an obligation on an injured worker to follow a reasonable medical treatment advice. As the consequence of failing to meet obligations of mutuality might include the suspension and cancellation of workers compensation (including on a permanent and ongoing basis), the regime engages and limits the right to health, the right to rehabilitation and the right to social security.[179]

Right to social security, right to health and right to rehabilitation

1.418         The right to social security and the right to health are described above at [1.296] to [1.300]. The right to rehabilitation is described above at [1.315].

Compatibility of the measure with the right to social security, the right to health and the right to rehabilitation

1.419         The statement of compatibility states that the obligations of mutuality engage the right to social security and the rights of persons with disabilities.[180] It explains that the legitimate objective of Schedule 15 is 'to improve health and rehabilitation outcomes by ensuring that employees actively participate in their rehabilitation and to improve the integrity of the scheme'.[181] The statement of compatibility states that the existing mechanisms allowing for the suspension of payments in more limited circumstances (but not for permanent cancellation of payments) is not effective 'due to the lack of clarity about the extent of the obligations, the consistency of their terms and their self-executing nature'.[182]

1.420         The committee agrees that seeking to improve health and rehabilitation outcomes and improving the integrity of the Comcare scheme is a legitimate objective for the purposes of international human rights law. It also agrees that the measures are rationally connected to that objective. However, it is unclear to the committee as to whether the measures are proportionate to achieve that objective. The committee considers that the some obligations of mutuality may be drafted so broadly that the sanctions regime that flows from breach of these obligations may not be proportionate to the objective sought to be achieved.

1.421         For example, under proposed new section 29L it will be a breach of the obligation of mutuality to fail to accept, engage in or seek suitable employment without a reasonable excuse.[183] The statement of compatibility states that there are sufficient safeguards in place to ensure this measure is proportionate, as the Act sets out what 'suitable employment' means, which takes into account individual circumstances. In addition, the bill sets out the potential of an employee to be employed, which must have regard to the potential for the employee to be rehabilitated, to benefit from medical treatment and any other relevant matter.[184]

1.422         However, it is not clear to the committee how it will be determined that an employee has 'failed to seek' suitable employment. The bill does not set out a definition of this, although proposed section 29L provides that the requirements will not apply in such circumstances as are set out in the regulations. The committee notes that the bill does not set out the circumstances when a person will be deemed to have failed to have sought employment. On this basis the committee considers that the measure risks being more rights restrictive than is strictly necessary to achieve the stated objective (that is, disproportionate). Further the committee notes that the statement of compatibility does explain why less rights restrictive measures would have been ineffective or unworkable.

1.423         In addition, under proposed new section 29P it will be a breach of the obligation of mutuality to refuse or fail, without reasonable excuse, to follow medical treatment advice. The definition of 'medical treatment' in the Act includes medical, surgical, dental or therapeutic treatment or examination or tests carried out on, or in relation to, an employee.[185] The bill states that it will be a reasonable excuse if the employee refuses to undergo surgery or to take or use a medicine.[186] The committee is concerned that a person's right to compensation must be permanently removed if the responsible authority is satisfied that the person has failed to follow medical treatment advice, including treatment by a physiotherapist, osteopath, masseur or chiropractor. The committee notes that this could result in, for example, a person who fails to consistently undertake physical exercises set for them by their physiotherapist having their right to compensation suspended and cancelled. This could be unduly harsh in a range of circumstances. Further, the committee notes that the measure may risk a lack of openness by employees with treating medical professionals in ways that ultimately adversely affect health and rehabilitation outcomes. 

1.424         The committee notes that an employee's responsibilities under a 'workplace rehabilitation plan' will constitute obligations of mutuality to which sanctions may apply under new section 29R. As noted above, a 'workplace rehabilitation plan' will set out the details of services and activities to assist an injured worker in rehabilitation and return to work with an emphasis on vocational services.^[187] The nature of a 'workplace rehabilitation plan' means that there may necessarily be a high degree of specificity in relation to an injured employee's responsibilities under the plan. This is likely to include responsibilities to undertake a range of particular activities. The committee is concerned that failure to perform these activities may result in suspension or cancellation of the payments in circumstances where such a cancelation would be unduly harsh or disproportionate to the nature of the breach. The committee is therefore of the view that, as currently formulated, the obligations of mutuality may be more rights restrictive than is strictly necessary to achieve the stated objective of improving health and rehabilitation outcomes.   

1.425         The committee therefore considers that the obligations of mutuality limit the right to social security and the right to health. As set out above, the statement of compatibility does not sufficiently justify that limitation for the purpose of international human rights law. The committee therefore seeks the advice of the Minister for Employment as to whether the limitation is a proportionate means to achieve the stated objective.

Cancellation of compensation for breaches of mutual obligations (Schedule 15)

1.426         Employees who breach an obligation of mutuality in relation to the same injury or an associated injury will be subject to a 3-stage sanctions regime. At the third stage, an employee's rights to compensation and to institute or continue any proceedings in relation to compensation in respect of all current and future associated injuries are permanently cancelled. This will also have the effect of permanently cancelling the employee's right to rehabilitation.

1.427         The power to suspend and cancel workers compensation for breaches of mutual obligation engages and limits the right to health, the right to social security, the right to rehabilitation and the right to a fair hearing.

Right to social security, right to health and right to rehabilitation

1.428         The right to social security and the right to health are described above at [1.296] to [1.300].

Compatibility of the measure with the right to social security, the right to health and the right to rehabilitation

1.429         The statement of compatibility states that the obligations of mutuality and the sanction provisions engage the right to social security and the rights of persons with disabilities.[188] It explains that the legitimate objective of Schedule 15 is 'to improve health and rehabilitation outcomes by ensuring that employees actively participate in their rehabilitation and to improve the integrity of the scheme'.[189] The statement of compatibility says the existing mechanisms allowing for the suspension of payments in more limited circumstances (but not for cancellation of payments) is not effective 'due to the lack of clarity about the extent of the obligations, the consistency of their terms and their self-executing nature'.[190]

1.430         The committee accepts that seeking to improve health and rehabilitation outcomes and improving the integrity of the Comcare scheme is a legitimate objective for the purposes of international human rights law. It also accepts that the measures are rationally connected to that objective. However, it is unclear to the committee as to whether the measures are proportionate to achieve that objective.

1.431         The statement of compatibility states that there are safeguards in the bill that make the measures proportionate to the objective sought to be achieved:

Generally, an employee will only have breached an obligation of mutuality where they have refused or failed to fulfil their responsibilities without a reasonable excuse...The key principle underpinning the strengthening of mutual obligations is that it is fair and reasonable to expect that people receiving workers' compensation payments do their best to improve their health and undertake activities that will improve their ability to work...Where it is clear that a person receiving workers' compensation payments does not intend to meet any or all of their mutual obligations, the sanction provisions should be engaged. The sanction regime has been developed in an escalating framework so as to ensure that it is clear and operates effectively as a deterrent.[191]

1.432         The statement of compatibility notes a number of specific provisions stating that these are safeguards which mean the limitation on the right is proportionate, namely:

• the provisions do not affect an employee's right to compensation for medical treatment payments until the final stage of the sanctions regime;
• the suspension of compensation will end when the employee remedies a breach;
• in the case of a breach of the suitable employment provisions, the employee's compensation is only reduced by the amount they are deemed able to earn;
• employees will be notified in writing of any breach of obligation of mutuality;
• employees may seek review of a relevant authority's decision to subject them to a sanction;
• employees whose compensation payments are cancelled will still be able to apply for support through social security and where an injury has resulted in permanent disability, an employee may apply for access support through the National Disability Insurance Scheme (where eligible).[192]

1.433         The committee is concerned that suspending and cancelling an employee's right to compensation may not be proportionate to achieve the stated objective. In particular, permanently cancelling an employee's right to compensation, including their right to medical treatment, may have adverse impacts on the health and rehabilitation of the employee. The committee notes that while employees would continue to have access to the social security system, this could provide a much lower level of support and at this stage the National Disability Insurance Scheme is in a trial phase and the majority of persons with a disability are not able to access support through this scheme.

1.434         The committee also has concerns about a number of specific aspects of the suspension and cancellation regime. In particular, the sanctions regime requires a relevant authority (such as Comcare) to suspend compensation if it is 'satisfied' that an employee has breached an obligation of mutuality. There is no requirement that the authority must be 'reasonably' satisfied, nor does it give discretion to the authority in deciding whether, in all the circumstances, compensation payments should be suspended or cancelled. In addition, while the statement of compatibility says that it is 'expected that in practice a relevant authority will contact the employee and undertake any other appropriate enquiries before determining that they have breached an obligation of mutuality',[193] there is no requirement in the legislation that the authority must do so.

1.435         The committee is also concerned that an employee's right to compensation can be permanently cancelled in relation to the primary injury as well as to any associated injuries that may later arise.[194] This is regardless of the level of the employee's injury and the level of treatment they may require as a result of that injury. If the relevant breaches of the obligation of mutuality are established to have occurred, there is no discretion for the relevant authority or the AAT to decide not to permanently cancel or reinstate compensation based on the affected employee's circumstances.

1.436         The committee therefore considers that the power to suspend and cancel compensation payments limits the right to social security, the right to health and the rights of persons with disabilities. As set out above, the statement of compatibility does not sufficiently justify that limitation for the purpose of international human rights law. The committee therefore seeks the advice of the Minister for Employment as to whether the limitation is a proportionate means to achieve the stated objective, in particular, whether the bill is drafted in the least rights restrictive way.

Removal of review rights in certain circumstances (Schedule 15)

1.437         Schedule 15 of the bill also includes measures that limit judicial and merits review of decisions made by Comcare under the scheme. Specifically, where an injured worker is subject to the suspension and cancellation regime (whether at stage 1, 2 or 3), the bill provides that the injured worker is barred from instituting or continuing any proceedings in relation to compensation under Act for the injury or associated injury other than proceedings in the AAT in relation to the sanction regime.

1.438         The committee considers that this measure engages and limits the right to a fair hearing.

Right to a fair hearing

1.439         The right to a fair hearing is described above at paragraph [1.326].

Compatibility of the measure with the right to a fair hearing

1.440         The statement of compatibility states that as the measure provides for the suspension and cancellation of an injured employee's right to institute or continue any proceedings (both merits review and judicial review) under the Act in relation to compensation for any current or future associated injury, the measure engages the right to a fair hearing.[195]

1.441         The statement of compatibility notes that the amendments in Schedule 15, which includes the proposed removal of review rights, pursue the legitimate objective of improving health and rehabilitation outcomes by ensuring that employees actively participate in their rehabilitation and to ensure the integrity of the scheme. The committee agrees that this may be considered a legitimate objective for the purpose of international human rights law.

1.442         However, based on the information provided, the committee considers that the proposed removal of the right to review may not be rationally connected to, and a proportionate way to achieve, its stated objective so as to be a justifiable limitation under international human rights law.

1.443         First, the committee considers that, as it has been explained in the statement of compatibility, there is not a clear link between the stated objective and the removal of review rights. No evidence or information has been provided in the statement of compatibility to explain how the removal of review rights would be effective or capable of achieving this stated objective.

1.444         Second, the committee notes that the statement of compatibility has not shown that removal of review rights is the least rights restrictive alternative to achieve the stated objective (that is, that removing review rights would be proportionate). 

1.445         The committee therefore considers that the power to suspend and cancel the right to institute or continue proceedings limits the right to a fair hearing. As set out above, the statement of compatibility does not sufficiently justify this limitation the purpose of international human rights law. The committee therefore seeks the advice of the Minister for Employment as to:

• whether there is a rational connection between the limitation and the stated objective of the measure to improve health and rehabilitation outcomes by ensuring that employees actively participate in their rehabilitation and to ensure the integrity of the scheme; and
• whether the limitation is a reasonable and proportionate measure for the achievement of that objective.

Social Services Legislation Amendment Bill 2015

Portfolio: Social Services
Introduced: House of Representatives, 25 March 2015

Purpose

1.446         The Social Services Legislation Amendment Bill 2015 (the bill) amends the Social Security Act 1991 to cease social security payments to certain people who are in psychiatric confinement because they have been charged with a serious offence.

1.447         Measures raising human rights concerns or issues are set out below.

Ceasing social security payments to certain people who are in psychiatric confinement

1.448         The measures in the bill would result in certain individuals who are in psychiatric confinement because they have been charged with a serious offence losing existing entitlements to social security payments. The bill engages and limits the right to social security.

Right to social security

1.449         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.

1.450         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).

1.451         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.

1.452         Specific situations which are recognised as engaging a person's right to social security, include health care and sickness; old age; unemployment and workplace injury; family and child support; paid maternity leave; and disability support.

Compatibility of the bill with the right to social security

1.453          The statement of compatibility states that the bill engages the right to social security together with rights to social protection and the right to an adequate standard of living. The statement of compatibility states that whilst individuals are in psychiatric care, they are receiving benefits in kind and do not require social security. The analysis in the statement of compatibility appears to assume that the 'in kind' benefits provided are of equal or equivalent value to the social security payments an individual would be entitled to if they were not under psychiatric care. No analysis  or evidence is provided to substantiate this assumption. No information is provided in the statement of compatibility as to what is the legitimate objective being sought or how the limitation on the right is proportionate to achieving that objective.

1.454         The bill would result in certain individuals who are in psychiatric confinement because they have been charged with a serious offence losing existing entitlements to social security payments. Accordingly, the committee considers that the bill limits the right to social security. 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,^[196] 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'.^[197] 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.

1.455         The committee considers that the amendments which would result in certain individuals who are in psychiatric confinement because they have been charged with a serious offence losing existing entitlements to social security engages and limits the right to social security. The committee considers that the statement of compatibility has not explained the legitimate objective for the measure. The committee therefore seeks the advice of the Minister for Social Services as to whether the bill is  compatible with the right to social security, and particularly:

• whether the proposed changes are aimed at achieving a legitimate objective;
• whether there is a rational connection between the limitation and that objective; and
• whether the limitation is a reasonable and proportionate measure for the achievement of that objective.

Extradition (Vietnam) Regulation 2013 [F2013L01473]

Portfolio: Attorney-General

Authorising legislation: Extradition Act 1988

1.456         The Extradition (Vietnam) Regulation 2013 (the regulation) extends the definition of an 'extradition country' in the Extradition Act 1988 (the Extradition Act) to include Vietnam, thereby giving effect to the Treaty between Australia and the Socialist Republic of Vietnam on Extradition.

1.457         Measures raising human rights concerns or issues are set out below.

Background 

1.458         In its First Report of 2013, the committee considered a similar regulation and asked the then Attorney-General whether that regulation was compatible with a number of human rights.[198]

1.459         In its Sixth Report of 2013 the committee gave detailed consideration to the issue and further requested the then Attorney-General's advice on the compatibility of the Extradition Act with a number of specific rights.[199]

1.460         In its Tenth Report of 2013 the committee published the then Attorney-General's response, noting that the response did not address a number of the committee's concerns.[200] The committee concluded that the Extradition Act raised serious human rights concerns and considered that this was an issue that may benefit from a full review of the human rights compatibility of the legislation. The committee suggested that in the 44th Parliament the committee may wish to determine whether to undertake such a review.

1.461         In its First Report of the 44^th Parliament the committee deferred its detailed consideration of the regulation while it gave consideration to the concerns raised in the previous reports and the suggestion of a full review of the Extradition Act and related legislation.

Multiple rights

1.462         The committee previously noted that it had concerns with the compatibility of the Extradition Act with a number of human rights, including:

• prohibition against torture, cruel, inhuman and degrading treatment;[201]
• right to life;[202]
• right to a fair hearing and fair trial;[203]
• right to liberty;[204]
• right to equality and non-discrimination;[205] and
• right to a fair hearing and fair trial (presumption of innocence).[206]

1.463         The committee notes that the regulation effectively extends the operation of the Extradition Act, by including a newly listed country as one to which a person may be subject to extradition. Accordingly, it is necessary to assess whether the Extradition Act is compatible with human rights in order to assess whether the regulation is compatible with human rights.

1.464         In its Sixth Report of 2013 the committee noted it had been unable to exhaustively review the Extradition Act, but hoped that the then Attorney-General, in responding to the committee's concerns, might undertake a wider review to consider the compatibility of the Extradition Act with human rights.

1.465         The then Attorney-General's response stated that a significant level of scrutiny had already been applied and addressed in relation to Australia's extradition regime. As the committee previously noted, while other parliamentary committees have examined the issue of extradition, those committees did not have a specific mandate to undertake a broader examination of the compatibility of the legislation with international human rights.[207]

1.466         The committee is not in a position to undertake a full review of the Extradition Act to assess it for compatibility with human rights. The committee considers that the Extradition Act could benefit from a comprehensive review to assess its provisions against Australia's human rights obligations.

1.467         Until a comprehensive review is undertaken of the Extradition Act which assesses the compatibility of the Act with Australia's international human rights obligations, the committee is unable to conclude that the regulation is compatible with the human rights identified above.

Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 [F2015L00265]

Portfolio: Attorney-General

Authorising legislation: Federal Circuit Court of Australia Act 1999

Last day to disallow: 22 June 2015

1.468         The Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (the instrument) requires  the Federal Circuit Court (FCC) to apply, with modifications, applicable New South Wales (NSW) law when determining Commonwealth tenancy disputes that involve land within NSW.

1.469         Measures raising human rights concerns or issues are set out below.

Background 

1.470         The committee considered the Federal Courts Legislation Amendment Bill 2014 (the bill) in its Eighteenth Report of the 44^th Parliament.[208] The bill sought to amend the Federal Court of Australia Act 1976 and the Federal Circuit Court of Australia Act 1999 to confer jurisdiction on the Federal Circuit Court of Australia (FCC) in relation to certain tenancy disputes to which the Commonwealth is a party. For example, such a dispute may arise may arise in the case of public or government housing where the lessor is the Commonwealth government. The committee raised concerns in relation to the conferral of jurisdiction on the Federal Circuit Court for certain tenancy disputes, and requested further information from the Attorney-General as to whether this conferral is compatible with fair hearing rights.

1.471         The committee considered the Attorney-General's response in its Nineteenth Report of the 44^th Parliament.[209] In his response to the committee, the Attorney-General stated that '...state and territory law will continue to govern tenancy arrangements where the Commonwealth is a lessor. This includes protection about unlawful and unjust eviction'.[210] However, the instrument makes a number of amendments to state and territory law applicable to such disputes.

1.472         The bill finally passed both Houses of Parliament and received Royal Assent on 25 February 2015 as the Federal Courts Legislation Amendment Act 2015 (the Act).

Power of the FCC to dictate vacation date of tenant

1.473         As outlined, the instrument requires the FCC to apply NSW law (namely the Residential Tenancies Act 2010 (NSW) (the NSW Residential Tenancies Act), the Residential Tenancies Regulation 2010, and the Sheriff Act 2005)when determining Commonwealth tenancy disputes involving land within NSW. The instrument makes a number of modifications to the application of these laws, including subsection 8(2) which allows the FCC to dictate the date of vacant possession for tenants who have received a termination order. This differs from section 94(4) of the NSW Residential Tenancies Act which provides that long-term tenants must not be ordered to vacate premises earlier than 90 days after a termination order is made. As a result of this modification to the NSW law, this could result in tenants being given a date to vacate premises of less than 90 days.

1.474         The committee considers that the instrument engages and may limit the right to an adequate standard of living (housing).

Right to an adequate standard of living

1.475         The right to an adequate standard of living is guaranteed by article 11(1) of the International Covenant on Economic, Social and Cultural Rights (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.

1.476         Australia has two types of obligations in relation to this right. It has immediate obligations to satisfy certain minimum aspects of the right; not to unjustifiably take any backwards steps that might affect living standards; and to ensure the right is made available in a non-discriminatory way. It also has an obligation to take reasonable measures within its available resources to progressively secure broader enjoyment of the right to an adequate standard of living.

Compatibility of the measure with the right to an adequate standard of living

1.477         The explanatory statement for the regulation acknowledges that the instrument engages the right to an adequate standard of living in relation to housing, but states that:

By allowing the FCC to exercise discretion in these cases, the Instrument does not limit the right of long-term tenants to adequate housing. The measure is reasonable and appropriate to ensure that both parties to a Commonwealth tenancy dispute are provided with equitable rights by the FCC in the determination of the date vacant possession of residential premises should be provided.[211]

1.478         However, the committee considers that the explanatory statement has failed to set out how amending existing NSW law which would allow the FCC to exercise discretion in determining a vacation date seeks to achieve a legitimate objective. In particular, there is no justification provided as to why the existing provisions of the NSW Residential Tenancies Act as detailed above at [1.473] would be inappropriate or ineffective when determining Commonwealth tenancy disputes. The committee therefore considers that the proponent of the legislation has not justified this limitation for the purposes of international human rights law.

1.479         The committee notes that to demonstrate that a limitation is permissible, proponents of legislation must provide reasoned and evidence-based explanations of why the measures are necessary in pursuit of a legitimate objective. The Attorney-General's Department's guidance on the preparation of statements of compatibility 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'.[212] 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.

1.480         Further, as noted above, in response to the committee's consideration of the human rights compatibility of the primary legislation, the Attorney-General advised the committee that state and territory law would continue to govern tenancy arrangements where the Commonwealth is a lessor. It was on the basis of this information that the committee concluded that the Federal Courts Legislation Amendment Act 2015 was compatible with human rights.

1.481         The committee therefore considers that the ability of the Federal Circuit Court to determine the date for tenants to vacate premises limits the right to an adequate standard of living. As set out above, the statement of compatibility does not sufficiently justify that limitation for the purpose of international human rights law. The committee therefore seeks the advice of the Attorney-General 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.

Powers when executing orders made by the Court

1.482         Section 10 of the instrument grants the Sheriff and Deputy Sheriff of the FCC any of the powers prescribed under section 7A of the Sheriff Act 2005 (NSW), including use of force powers, when enforcing a warrant for the possession of residential premises owned by the Commonwealth involving land in NSW.

1.483         The committee considers that the instrument engages and may limit the right to security of the person.

Right to security of the person

1.484         Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) provides for the right to security of the person and requires the state to take steps to protect people against interference with personal integrity by others. This includes protecting people who are subject to death threats, assassination attempts, harassment and intimidation (including providing protection for people from domestic violence).

Compatibility of the measure with the right to security of the person

1.485         The committee notes that empowering the Sheriff and the Deputy Sheriff to use force against a person in exercising a writ or warrant engages and limits the right to security of the person, as levels of force could be used that restrict or interfere with their personal integrity. However, a measure that limits the right to security of the person may be justifiable if it is demonstrated that it addresses a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.

1.486         The explanatory statement acknowledges that the instrument engages and limits the right to security of the person. It also sets out that 'section 10 of the Instrument is aimed at the legitimate and lawful objective of executing a warrant for possession of Commonwealth property in NSW where the FCC finds that the Commonwealth is entitled to possession of the premises'.[213] The committee accepts that the lawful execution of a warrant is a legitimate objective for the purposes of international human rights law, and that the measures are rationally connected to that objective. However, it is unclear, on the basis of the information provided in the statement of compatibility, whether the measure may be regarded as proportionate to this objective (that is, the least rights restrictive alternative to achieve this result).

1.487         The explanatory statement points to a range of safeguards to support its conclusion that the proposed measures are proportionate to their stated objective, such as:

Paragraph 10(2)(c) provides that a Sheriff or a Deputy Sheriff must not use more force, or subject any person on the premises to greater indignity, than is necessary and reasonable to execute the warrant. Paragraph 10(2)(d) provides that a Sheriff or a Deputy Sheriff must not do anything that is likely to cause the death of, or grievous bodily harm to, any person on the premises unless he or she reasonably believes that doing that thing is necessary to protect life or prevent serious injury to another person, including the Sheriff or a Deputy Sheriff.[214]

1.488         It is likely, however, that despite these safeguards there could remain potential issues of proportionality in relation to the measures, and the committee considers that further safeguards could have been put in place. These could include, for example, requirements that:

• the use of force only be used as a last resort;
• force should be used only if the purpose sought to be achieved cannot be achieved in a manner not requiring the use of force;
• the infliction of injury is to be avoided if possible; and
• the use of force be limited to situations where the officer cannot otherwise protect him or herself or others from harm.

1.489         The committee therefore considers that the instrument engages and limits the right to security of the person. As set out above, the explanatory statement for the instrument does not provide sufficient information to establish that the instrument may be regarded as proportionate to its stated objective (that is, the least rights restrictive alternative to achieve this result). The committee therefore seeks the advice of the Attorney-General as to whether the instrument imposes a proportionate limitation on the right to security of the person.

Migration Legislation Amendment (2014 Measures No. 2) Regulation 2014 [F2014L01461]

Portfolio: Immigration and Border Protection

Authorising legislation: Migration Act 1958 and Australian Citizenship Act 2007

Last day to disallow: 25 March 2015

Purpose

1.490         The Migration Legislation Amendment (2014 Measures No. 2) Regulation 2014 (the regulation) amends the Migration Regulations 1994 to:

• extend the entry period (the period between the grant of the visa and entry into Australia) and maximum period of stay (the period between entry into Australia and exit out of Australia) from three months to six months for a Subclass 400 (Temporary Work (Short Stay Activity);
• enable automated processing of persons departing Australia;
• enable the Minister for Immigration and Border Protection to authorise the disclosure of certain information (including personal identifiers) about visa holders to the CrimTrac Agency (CrimTrac);
• expand the scope of personal information that can be disclosed to the police to include certain identification reference numbers, and to allow those identifiers and certain information currently disclosable to the police to be disclosed to the CrimTrac Agency;
• allow applicants for student visas who are enrolled in Advanced Diploma courses with an approved education provider to access streamlined visa processing arrangements;
• amend the definition of 'financial institution' applicable to all student visas to clarify that both the financial institution and the regime under which that institute operates must meet effective prudential assurance criteria; and
• exempt persons who were minors at the time of application from the exclusion periods applied by public interest criterion (PIC) 4020 regarding grant of a visa.

1.491         The Regulation also amends the Australian Citizenship Regulations 2007 (Citizenship Regulations) to:

• allow children adopted by Australian citizens in accordance with a bilateral arrangement to be registered as Australian citizens; and
• update references to instruments made by the minister that enable a person to pay fees at the correct exchange rate for an application made under the Australian Citizenship Act 2007 (Citizenship Act) in a foreign country and using a foreign currency.

1.492         Measures raising human rights concerns or issues are set out below. 

Registration of children adopted from countries that are not party to the Hague Convention as citizens

1.493         As noted at [1.491] above the regulation amends the Citizenship Regulations to allow children adopted by Australian citizens in accordance with a bilateral arrangement to be registered as Australian citizens. Previously section 6 of the Citizenship Regulations provided only for children adopted by an Australian citizen in accordance with the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption to be registered as Australian Citizens (Hague Convention).[215]

1.494         This aspect of the regulation reflects the amendments in the Australian Citizenship Amendment (Intercountry Adoption) Bill 2014 (the bill) which allowed for the acquisition of Australian citizenship by a person adopted outside Australia by an Australian citizen in accordance with a bilateral arrangement between Australia and another country. Specifically, the bill amended the Citizenship Act to create an entitlement to citizenship for persons adopted in accordance with a bilateral arrangement.^[216] The entitlement is equivalent to that provided to persons adopted in accordance with the Hague Convention.^[217]

1.495         The bill received Royal Assent on 25 February 2015 after passing both Houses of Parliament.  The committee first reported on the bill in its Eighth Report of the 44^th Parliament and raised concerns in relation to the compatibility of the bill with the rights of the child.[218] The committee reported on the minister's response in its Tenth Report of the 44^th Parliament and concluded that the bill was likely to be incompatible with the rights of the child.[219] 

1.496         The committee considers that the regulation engages and limits the obligation to consider the best interests of the child as set out below.

Rights of the child

1.497         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.

1.498         State parties to the CRC are required to ensure to children the enjoyment of fundamental human rights and freedoms and are required to provide for special protection for children in their laws and practices. In interpreting all rights that apply to children, the following core principles apply:

• rights are to be applied without discrimination;
• the best interests of the child are to be a primary consideration;
• there must be a focus on the child's right to life, survival and development, including their physical, mental, spiritual, moral, psychological and social development; and
• there must be respect for the child's right to express his or her views in all matters affecting them.

Compatibility of the measure with the obligation to consider the best interest of the child

1.499         Article 21 of the CRC provides special protection in relation to inter-country adoption, seeking to ensure that it is performed in the best interests of the child. Specific protections include that inter-country adoption:

• is authorised only by competent authorities;
• is subject to the same safeguards and standards equivalent to which apply to national adoption; and
• does not result in improper financial gain for those involved.

1.500         The Hague Convention establishes a common regime, including minimum standards and appropriate safeguards, for ensuring that inter-country adoptions are performed in the best interests of the child and with respect for the fundamental rights guaranteed by the CRC. The Hague Convention also assists in combatting the sale of children and human trafficking.

1.501         As noted in the committee's previous analysis of the bill, compliance with the Hague Convention is a critical component of ensuring the protections required by article 21 of the CRC are maintained in any inter-country adoption.[220] The minister has previously acknowledged that whether Australian inter-country adoption arrangements meet Hague Convention standards is relevant to compliance with article 21 of the CRC.[221]

1.502         The committee therefore considers that providing for the registration of children adopted through inter-country adoption proceedings engages and may limit the rights of the child, and in particular the obligation to ensure that inter-country adoption is performed in the best interests of the child.

1.503         As the committee noted in its consideration of the bill (now Act), the limitation potentially arises as the Australian Citizenship Amendment (Intercountry Adoption) Act 2014 (the Act) specifies no standards or safeguards that will apply to inter-country adoptions under a bilateral agreement, and it is therefore not clear whether lower standards, or fewer safeguards, may apply to inter-country adoptions under a bilateral agreement than those that apply under the Hague Convention and the framework it sets out to ensure the best interests of the child. Similarly, the committee notes that neither are such standards or safeguards contained in this or other regulations.[222]

1.504         The committee notes the Australian government's previous advice in relation to the bill (now Act), that it only establishes international adoption arrangements with countries which can apply the standards required by the Hague Convention. However, this response did not provide information on how Australia establishes that a country that is not a party to the Hague Convention can nevertheless apply the standards required by that convention. In addition, the response did not explain how Australia confirms the efficacy of child protection measures in countries to which Australia has or proposes to have bilateral relationships which are not party to the Hague Convention. Further, the response does not explain how the Australian government determines its satisfaction that inter-country adoptions will take place in an ethical and responsible way in jurisdictions beyond its control.[223]

1.505         On the basis of this information and the committee's analysis, the committee was of the view that the information provided by the minister was insufficient to support a conclusion that the bill (now Act) is compatible with article 21 of the CRC. The committee therefore concluded that the bill (now Act) is likely to be incompatible with Australia's international human rights obligations under the CRC.[224] It follows from this analysis that the measure in the regulation which implements the Act is also likely to be incompatible with Australia's obligations under the CRC.

1.506         The committee notes the statement of compatibility provides no further information in respect of these matters in response to this conclusion. Rather, the statement of compatibility asserts that the measure does not engage the rights of the child. It is the committee's usual expectation that where a regulation relates to a bill with which the committee has previously raised concerns, that the regulation is accompanied by a statement of compatibility addressing the issues previously identified by the committee.

1.507         In accordance with its previous analysis, the committee considers that providing for the registration of children adopted through inter-country adoption proceedings engages and may limit the rights of the child, and in particular the obligation to ensure that inter-country adoption is performed in the best interests of the child under article 21 of the Convention on the Rights of the Child. As set out above, the statement of compatibility does not provide any information to justify that limitation for the purpose of international human rights law. The committee has already concluded that the Australian Citizenship Amendment (Intercountry Adoption) Act 2014 which the measure in the regulation implements is likely to be incompatible with the rights of the child. The committee therefore seeks the views of the Minister for Immigration and Border Protection as to the compatibility of the measure with the obligation to ensure that inter-country adoption is performed in the child's best interests.

Disclosure of information

1.508         Section 5.34F of the Migration Regulations permits the Department of Immigration and Border Protection (the department) to disclose certain information to the Australian Federal Police (AFP) and to state and territory police for the purpose of supporting existing powers to cancel a Bridging Visa E. This includes names, addresses, dates of birth, sex and immigration status of Bridging E visa (Class WE) visa (BVE) holders and people subject to a residence determination (community detainees).[225]

1.509         The committee initially examined the regulation implementing these measures in its Second Report of the 44^th Parliament and requested the further advice of the Minister for Immigration and Border Protection as to the compatibility of the measures with the right to privacy.[226] The committee reported on the minister's response in the Fourth Report of the 44th Parliament and sought further advice noting that many of the key safeguards and procedures for implementing the new disclosure powers were to be contained in a Memoranda of Understanding which was to be negotiated with the federal, state and territory police.[227] The committee reported on the minister's response in its Seventh Report of the 44^th Parliament and noted the minister's commitment to provide the committee with a copy of the Memoranda of Understanding once finalised.[228] On this basis the committee noted it would conclude its examination of the instruments once it had received and considered a copy of the final Memoranda of Understanding.[229]   

1.510         Schedule 3 to this current regulation further amends section 5.34F to authorise the disclosure of personal information of BVE visa holders and community detainees to the CrimTrac Agency.

1.511         This regulation also amends section 5.34F of the Migration Regulations to allow the disclosure of a unique identifier to prevent misidentification (the Central Names Index (CNI) Number, an identifier used by the National Automated Fingerprint Identification System) and the disclosure of the departmental Client ID reference number.

Right to privacy

1.512         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 encompasses 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.

1.513         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

1.514         The committee considers that the measures engage and may limit the right to privacy as the measures facilitate the sharing of personal information of BVE visa holders and community detainees with CrimTrac as well as the disclosure of unique identifiers. The statement of compatibility acknowledges that the measures engage and may limit the right to privacy[230] but argues that the measures are compatible with human rights because 'those limitations are reasonable, necessary and proportionate'.[231]

1.515         The statement of compatibility notes that the committee has previously reported on the disclosure powers under section 5.34F of the Migration Regulations and that the further amendments to the regulations only add 'specificity to the previous amendment'.[232] Accordingly, whether the further amendments to section 5.34F of Migration Regulations may be regarded as compatible with the right to privacy will firstly depend on a foundational assessment of whether the disclosure of personal information for BVE holders is compatible with the right to privacy. Measures which limit human rights will be permissible where they address a legitimate objective, where they are rationally connected to that objective and where they are a proportionate means of achieving that objective.

1.516         The committee acknowledges that disclosure requirements in support of the Department of Immigration and Border Protection's compliance activities could be capable of constituting a legitimate objective for the purpose of international human rights law. The committee further acknowledges that minimising the risks associated with misuse of information and misidentification of individuals may also be considered to be a legitimate objective in respect of the further amendments to section 5.34F of the Migration Regulations.[233] However, it is unclear, on the basis of the information provided in the statement of compatibility, whether each of the measures may be regarded as proportionate to these objectives.

1.517         The committee welcomes the advice in the statement of compatibility that the Privacy Commissioner provided a number of suggestions to limit privacy risks as a result of the amendments and that these have been incorporated into the amendments to section 5.34F to this regulation.[234] However, as noted above, the committee had previously concluded that it was unable to complete its foundational assessment of whether the disclosure requirements in section 5.34F were compatible with human rights until it could consider the specific content of the memorandum of understanding which was relied upon by the minister as setting out key safeguards and procedures for implementing disclosure requirements. The minister advised the committee that the memorandum of understanding had not been finalised at that time but committed to providing the committee with a copy setting out the arrangements for information sharing once finalised.[235]

1.518         Similarly, the statement of compatibility to the current regulation relies on the terms of the yet to be finalised memorandum of understanding between the department, federal, state and territory police and CrimTrac to justify the further amendment of the section 5.34F disclosure requirements as a proportionate limitation on the right to privacy. The statement of compatibility explains the memorandum of understanding will set out a range of safeguards in order to prevent the misuse of information:

The department is in the process of putting in place formal arrangements through a memorandum of understanding with the Police services to cover the disclosure of the specific information and the Minister's expectations about how information will be used. To ensure protection of information, CrimTrac will also sign this single memorandum of understanding for information sharing. Provision of personal information will not commence until memorandum of understanding arrangements have been formally put in place.

Access to this information is only to be undertaken in relation to legitimate law enforcement activities. The memorandum of understanding will specify that lawful access within relevant police organisations is limited to those with a need to know...

The memorandum of understanding will also specify that compliance with information disclosure and storage requirements contained within Commonwealth, State and Territory laws, along with applicable internal governance remain in effect. The memorandum of understanding will address privacy and security requirements and that further dissemination of information not authorised by law is prohibited...

This regulation change ensures that the disclosure is required or authorised by law, ensuring that such disclosures are consistent with the Privacy Act 1988.[236] 

1.519         The committee notes that many of the arrangements to be set out in the memorandum of understanding are likely to provide important safeguards against the misuse of information and may assist to ensure the proportionality of the disclosure requirements with the right to privacy.

1.520         Additionally, the arrangements in the proposed memorandum of understanding may provide safeguards in relation to the further amendments to section 5.34F in this current regulation. However, the committee notes that administrative safeguards are generally likely to be less stringent than the protection of statutory processes in guarding against disproportionate limitations on human rights.

1.521         The committee considers that the further amendments to the disclosure requirements in section 5.34F of the Migration Regulations engage and may limit the right to privacy. The statement of compatibility relies on the terms of a yet to be finalised memorandum of understanding to justify the proportionality of this limitation.

1.522         In accordance with its previous conclusions, the committee notes that as many of the key safeguards and procedures for implementing the disclosure powers are to be contained in the relevant memorandum of understanding being negotiated with the federal, state and territory police and CrimTrac, the committee is unable to complete its assessment of whether the amendments to section 5.34F are compatible with human rights until it can consider the specific content of the memorandum of understanding.

1.523         Similarly, the committee notes that it previously concluded that it would be unable to complete a foundational assessment of whether the disclosure of personal information for BVE holders was compatible with the right to privacy until it could consider the specific content of the memorandum of understanding.

1.524         Noting the minister's previous commitment to provide the committee with a copy of the memorandum of understanding, the committee will conclude its examination of the disclosure powers and the further amendments to those powers in section 5.34F once it has received and considered a copy of this memorandum of understanding.  The committee looks forward to receiving a copy of the memorandum of understanding as soon as it is finalised.

Seafarers Rehabilitation and Compensation (Prescribed Ship—Intra-State Trade) Declaration 2015 [F2015L00336]

Portfolio: Employment

Authorising legislation: Seafarers Rehabilitation and Compensation Act 1992

Last day to disallow: 13 August 2015

Purpose

1.525         The Seafarers Rehabilitation and Compensation (Prescribed Ship—Intra-State Trade) Declaration 2015 (the instrument) declares that a certain type of ship which is only engaged in intra-state trade is not a prescribed ship for the purposes of the  Seafarers Rehabilitation and Compensation Act 1992 (the Seafarers Act).

1.526         Currently, the Seafarers Act provides workers compensation and rehabilitation arrangements for seafarers in a defined part of the Australian maritime industry. The effect of the instrument is that workers on ships engaged in intra-state voyages are no longer covered by the Seafarers Act and so will no longer be entitled to compensation under that Act.

1.527         Measures raising human rights concerns or issues are set out below.

Background 

1.528         In February 2015 the Seafarers Rehabilitation and Compensation and Other Legislation Amendment Bill 2015 (the bill) was introduced into the House of Representatives. The bill seeks to amend the Seafarers Act to ensure workers on ships engaged in intra-state voyages are not covered by the Seafarers Act (or by specific maritime occupational health and safety legislation).[237] The bill passed the House of Representatives in February 2015 and passed the Senate with amendments on 13 May 2015.

1.529         Both the bill and the instrument have been introduced following a decision of the Full Court of the Federal Court[238] which held that the coverage provisions in the Seafarers Act apply to all seafarers employed by a trading, financial or foreign corporation, including ships engaged in purely intra-state trade.

1.530         The committee commented on this bill in its Twentieth Report of the 44^th Parliament.[239]

Alteration of coverage of persons eligible for workers' compensation

1.531         The committee considers that the instrument, in removing ships engaged in intra-state voyages from the coverage of the Seafarers Act and thereby removing an entitlement to compensation for workers injured on such ships, engages and may limit the right to social security.

Right to social security

1.532         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.

1.533         Specific situations and statuses 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. It also includes the protection of workers injured in the course of employment.

Compatibility of the measure with the right to social security

1.534         The statement of compatibility states that as the instrument may result in some individuals who have entitlements to workers compensation under the Seafarers Act no longer having this entitlement, this could be said to limit the right to social security. However, the statement of compatibility states that such a limitation is reasonable and proportionate as affected employees will retain entitlements to compensation under state legislation.

1.535         The committee notes that the proposed changes in the instrument appear to be aimed at achieving part of the same outcome as that which would be achieved if the bill were passed by both Houses of Parliament and became law.[240] As the committee noted in its consideration of the bill, to the extent that the state schemes are less generous than the scheme under the Seafarers Act, the measure in the instrument may be regarded as a retrogressive measure. Under article 2(1) of the ICESCR, Australia has certain obligations in relation to economic and social rights. These include an obligation not to unjustifiably take any backwards steps (retrogressive measures) that might affect the right to social security. A reduction in compensation available to an injured worker may be a retrogressive measure for human rights purposes. A retrogressive measure is not prohibited so long as it can be demonstrated that the measure is justified. That is, it addresses a legitimate objective, it is rationally connected to that objective and it is a proportionate means of achieving that objective.

1.536         The statement of compatibility states that the objective of the instrument is to ensure the long-term viability of maritime industry employers and the sustainability of the scheme. While the committee notes that this is likely to be a legitimate objective for the purposes of international human rights law, it is unclear, on the basis of the information provided in the statement of compatibility, whether the measure may be regarded as proportionate to this objective.

1.537         The statement of compatibility characterises the measure as proportionate on the basis that 'affected employees will retain entitlements to compensation', and noting that every workers' compensation scheme does provide protection and support to injured employees as required by the right to social security.[241] However, the statement of compatibility also states that workers' compensation premiums under the federal scheme are, on average, significantly more expensive than those of the state and territory schemes, which could suggest that those schemes provide for lesser coverage or entitlements. Given this, the committee considers, as with the bill, that specific information on the extent of any differences in levels of coverage and compensation between the scheme under the Seafarers Act and the state and territory schemes is needed to fully assess the proportionality of the measure.

1.538         The committee is notes that its request for this information in relation to the bill has not been provided to the committee before the instrument was introduced.

1.539         The committee considers that as the instrument excludes ships engaged in intra-state voyages from the Seafarers Act, the instrument engages and may limit the right to social security and may be regarded as a retrogressive measure under international human rights law. As set out above, the statement of compatibility does not provide sufficient information to establish that the measure may be regarded as proportionate to its stated objective, in particular that it is the least rights restrictive way to achieve the stated objective. The committee therefore seeks the advice of the Minister for Employment as to the extent of differences in levels of coverage and compensation between the scheme under the Seafarers Act and state and territory workers' compensation

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