New and continuing matters
This report provides the Parliamentary Joint Committee on Human Rights'
view on the compatibility with human rights of bills introduced into the
Parliament from 11 May to 4 June 2015, legislative instruments received from 10
April to 14 May 2015, and legislation previously deferred by the
The report also includes the committee's consideration of responses arising
from previous reports.
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.
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
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
The committee has examined the following bills and concluded that they do
not raise human rights concerns. The following categorisation is indicative of
the committee's consideration of these bills.
The committee considers that the following bills do not require
additional comment as they either do not engage human rights or engage rights
(but do not promote or limit rights):
Airports Amendment Bill 2015;
Appropriation (Parliamentary Departments) Bill (No. 1) 2015-2016;
Crimes Legislation Amendment (Penalty Unit) Bill 2015;
Energy Grants and Other Legislation Amendment (Ethanol and
Biodiesel) Bill 2015;
Excise Tariff Amendment (Ethanol and Biodiesel) Bill 2015;
Export Charges (Collection) Bill 2015;
Export Charges (Imposition—Customs) Bill 2015;
Export Charges (Imposition—Excise) Bill 2015;
Export Charges (Imposition—General) Bill 2015;
Imported Food Charges (Collection) Bill 2015;
Imported Food Charges (Imposition—Customs) Bill 2015;
Imported Food Charges (Imposition—Excise) Bill 2015;
Imported Food Charges (Imposition—General) Bill 2015;
Iron Ore Supply and Demand (Commission of Inquiry) Bill 2015;
Medical Research Future Fund (Consequential Amendments) Bill 2015;
Medical Research Future Fund Bill 2015;
Tax and Superannuation Laws Amendment (2015 Measures No. 1) Bill
Tax and Superannuation Laws Amendment (2015 Measures No. 3) Bill
Tax and Superannuation Laws Amendment (Medicare Levy and Medicare
Levy Surcharge) Bill 2015;
Tax Laws Amendment (Small Business Measures No. 1) Bill 2015;
Tax Laws Amendment (Small Business Measures No. 2) Bill 2015; and
Water Amendment Bill 2015.
The committee considers that the following bills do not require
additional comment as they promote human rights or contain justifiable
limitations on human rights (and may include bills that contain both
justifiable limitations on rights and promotion of human rights):
Australian Small Business and Family Enterprise Ombudsman
(Consequential and Transitional Provisions) Bill 2015;
Australian Small Business and Family Enterprise Ombudsman Bill
Customs Amendment (Australian Trusted Trader Programme) Bill 2015;
Freedom of Information Amendment (Requests and Reasons) Bill 2015;
Marriage Amendment (Marriage Equality) Bill 2015;
National Health Amendment (Pharmaceutical Benefits) Bill 2015;
Passports Legislation Amendment (Integrity) Bill 2015;
Private Health Insurance (Collapsed Insurer Levy) Amendment Bill
Private Health Insurance (National Joint Replacement Register
Levy) Amendment Bill 2015;
Private Health Insurance (Prudential Supervision) (Consequential
Amendments and Transitional Provisions) Bill 2015;
Private Health Insurance (Prudential Supervision) Bill 2015;
Private Health Insurance (Risk Equalisation Levy) Amendment Bill
Private Health Insurance Supervisory Levy Imposition Bill 2015;
Renewable Energy (Electricity) Amendment Bill 2015;
Social Services Legislation Amendment (Fair and Sustainable
Pensions) Bill 2015 and
Superannuation Guarantee (Administration) Amendment Bill 2015.
Instruments not raising human rights concerns
The committee has examined the legislative instruments received in the
relevant period, as listed in the Journals of the Senate.
Instruments raising human rights concerns are identified in this chapter.
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.
The following appropriation bills were introduced during the relevant
Appropriation Bill (No. 1) 2015-2016;
Appropriation Bill (No. 2) 2015-2016;
Appropriation Bill (No. 5) 2014-2015; and
Appropriation Bill (No. 6) 2014-2015.
In light of the Minister for Finance's view as to the extent to which
appropriation bills may be subject to human rights assessments (see page 13),
the committee makes no further comment on these bills.
Deferred bills and instruments
The committee has deferred its consideration of the following bills and
Criminal Code Amendment (Animal Protection) Bill 2015 (deferred 3
Foreign Death Penalty Offences (Preventing Information
Disclosure) Bill 2015;
Social Services Legislation Amendment (Youth Employment and Other
Measures) Bill 2015; and
Migration Amendment (Resolving the Asylum Legacy Caseload)
Regulation 2015 [F2015L00551].
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.
The committee also continues to defer a number of instruments in
connection with its ongoing examination of the autonomous sanctions regime and
the Charter of the United Nations sanctions regime.
Social Services Legislation Amendment (No. 2) Bill 2015
House of Representatives, 28 May 2015
The Social Services Legislation Amendment (No. 2) Bill 2015 (the bill)
seeks to amend the current income management programme and continue it for two
years and to make amendments in relation to aged care.
In particular, the bill seeks to amend the Social Security Act 1991
and the Social Security (Administration) Act 1999 to:
abolish certain incentive payments relating to income management;
amend how a person is determined to be a 'vulnerable welfare
payment recipient' so that a person will no longer be assessed on a
case-by-case basis for referral by a Centrelink worker, but will automatically
be subject to income management if they meet certain criteria, which will be
specified by the Minister for Social Services in a legislative instrument;
remove reference to 'dependent child' and substitute reference to
the person being 'a child for whom the person is the principal carer';
amend the basis on which a person can seek an exemption from
income management, revising the test from how many hours a person has worked to
how much welfare the person has been paid during the relevant period; and
introduce greater flexibility to deal with persons whose income
management account has been credited or debited in error, and provide that in
certain circumstances the recipient will owe a debt to the Commonwealth.
The bill also seeks to amend the Aged Care Act 1997 and the Aged
Care (Transitional Provisions) Act 1997 to cease the payment of residential
care subsidies for care recipients during a period of leave taken before
entering a residential care service. This will mean that during a period of up
to seven days before a person enters into residential care (when a spot is
being reserved for them) the care recipient will no longer receive government
subsidies or supplements during the period when the person is not receiving
care. The aged care provider will not be able to recoup any lost residential
care subsidy from the care recipient as a result of this measure.
Measures raising human rights concerns or issues are set out below.
The committee has previously conducted an inquiry into the Stronger
Futures in the Northern Territory Act 2012 and related legislation,
including in relation to income management, and is currently undertaking a new
examination into the legislation.
The income management regime engages multiple human rights, in
particular the right to a private life, the right to equality and
non-discrimination, the right to social security and the right to an adequate standard
In examining the proportionality of the income management measures, the
committee is particularly concerned by the proposal in this bill to change the
basis on which a person will become subject to income management. The bill
proposes moving away from an individual assessment of a person's
vulnerabilities towards an automatic application of income management for
certain classes of people, to be specified in a legislative instrument. The
explanatory memorandum and statement of compatibility do not explain what the
criteria is likely to be for the automatic application of income management,
nor does the statement of compatibility provide any justification as to whether
this change, in moving away from individual assessments, is compatible with a
number of human rights.
The committee is currently undertaking a broader inquiry: Review
of Stronger Futures in the Northern Territory Act 2012 and related legislation
and intends to report on this in 2015. The committee will defer its
consideration of this bill as part of its broader inquiry.
Defence Trade Controls Amendment Bill 2015
House of Representatives, 26 February 2015
The Defence Trade Controls Amendment Bill 2015 (the bill) seeks to amend
the Defence Trade Controls Act 2012 (the Act) to:
delay the commencement of offence provisions by 12 months to
ensure that stakeholders have sufficient time to implement appropriate compliance
and licensing measures;
provide for new offences or amend existing offences relating to
require approvals only for sensitive military publications and
remove controls on dual-use publications;
require permits only for brokering of sensitive military items
and remove controls on most dual-use brokering, subject to international
obligations and national security interests; and
provide for review of the Act, initially two years after the
commencement of section 10, and for the minister to table a copy of the review
report in each House of Parliament.
Measures raising human rights concerns or issues are set out below.
The committee previously considered the bill in its Twentieth Report
of the 44th Parliament, and requested further information from
the Minister for Defence as to whether the reverse evidential burdens contained
within the bill were a proportionate limitation on the right to a fair trial
(presumption of innocence).
The bill finally passed both Houses of Parliament on 18 March 2015, and
received Royal Assent on 2 April 2015.
Reverse evidential burdens
The bill seeks to amend a number of existing offences to introduce
statutory exceptions to those offences. 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.
Right to a fair trial (presumption
Article 14(2) of the International Covenant on Civil and Political
Rights (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
An offence provision which requires the defendant to carry an evidential
or legal burden of proof with regard to the existence of some fact will engage
the presumption of innocence because a defendant's failure to discharge the
burden of proof may permit their conviction despite reasonable doubt as to
However, reverse burden offences will not necessarily be inconsistent
with the presumption of innocence provided that they are within reasonable
limits which take into account the importance of the objective being sought and
maintain the defendant's right to a defence. In other words, such provisions
must be reasonable, necessary and proportionate to that aim.
Compatibility of the measure with
the right to a fair trial (presumption of innocence)
The statement of compatibility notes that the bill includes a number of
defences that reverse the onus of proof and so limit the right to be presumed
In its previous analysis the committee accepted that the offences in the
Act and the amendments in the bill seek to achieve the legitimate objective of
enhancing the export control regime which supports Australia's defence,
security and international obligations. However, it noted concerns that not all
of the reverse burden provisions may be proportionate to achieving that
The committee also noted that while some aspects of the exceptions
appear to be properly characterised as falling within the particular knowledge
of the defendant, it is not clear that it is reasonable to impose an evidential
burden on the defendant in relation to all of the matters specified in the
proposed new defences.
The committee therefore sought the advice of the Minister for Defence as
to whether the limitation on the presumption of innocence is a reasonable and
proportionate measure to achieve the stated objective.
Noting that the Bill requires the
defendant to carry an evidential burden of proof with regard to the new
exceptions, the Report queries whether the Bill is consistent with Article
14(2) of the International Covenant on Civil and Political Rights which
protects the right of the defendant to be presumed innocent. The Bill's
explanatory memorandum justifies these reversals on the grounds that the
evidence that would need to be raised would either be solely within the
defendant's knowledge or it would be more reasonable, more practical and less
burdensome for the defendant to establish the facts. Although the Committee
agrees that this explanation holds true in some circumstances, it has asked for
my further advice as to whether the limitation is reasonable and proportionate
to achieve the Bill's stated objective.
While I acknowledge that the Bill
does reverse the onus of proof for the introduced exceptions, these reversals
are within reasonable limits, considering the importance of the Bill's
objective, the lower standard of proof that the defendant bears, and that the
defendant's right to a defence is maintained. The objective of the legislation,
to stop proliferation-sensitive goods and technologies being used in
conventional, chemical, biological or nuclear weapons programs, will be
strengthened by exceptions that shift the onus to the defendant. To discharge
the onus, a defendant need only produce evidence that suggests a reasonable
possibility that the exception applies. Noting that a defendant who wishes to
rely on an exception should have conducted compliance checks to satisfy
themselves that their activity falls within the exception, it is reasonable to
expect the defendant to produce evidence of these checks to discharge the onus.
Reversing the onus for the
defences within the Bill does not erode the defendant's right to a defence, is
within reasonable limits and, given the important counter-proliferation
objective of the Bill, is a proportionate measure to achieve the Bill's stated
The committee thanks the Minister for Defence for his response.
The committee notes that its original request for further information was
focused on the construction of the offence provision and in particular whether
the applicable exceptions could be characterised as falling within the
particular knowledge of the defendant (such as whether the defendant made the
supply orally). It was not clear to the committee that it is reasonable to
impose an evidential burden on the defendant in relation to all of the matters
specified in the proposed new defences. In particular, it was not apparent
that the following would be particularly within the knowledge of the defendant,
to such an extent, as to make it reasonable in all the circumstances to reverse
the burden of proof. Rather, such matters would appear more likely to be within
the government's particular knowledge and expertise:
that the supply is within the scope of Part 2 of the Defence and
Strategic Goods List, which is a list formulated by the minister;
that there is no notice in force in relation to the supplier and
that a country is a participating state for the purposes of the
Wassenaar Arrangement; a participant in the Australia Group; a partner in the
Missile Technology Control Regime; and a participant in the Nuclear Suppliers
that a country is specified in a legislative instrument;
that the supply is made under or in connection with a contract
specified in a legislative instrument.
In addition, reversing the burden of proof in the following instances
would appear to require the defendant to prove an element of the offence, which
should more properly fall on the prosecution:
proving that the supply of DGSL technology is not the provision
of access to that technology;
proving that the supply is not for a military end-use nor for use
in a Weapons of Mass Destruction Program.
Unfortunately, the minister's response does not deal with the specifics
of the exceptions and therefore doesn't provide specific information to support
a conclusion that they are justified. Instead the response deals with the
offence provision more generally and reiterates how a reverse burden offence
works in practice. The committee also notes the minister's comment regarding a
defendant having a responsibility to satisfy themselves that their activity
falls within an exception. While this may appear reasonable in itself, it
doesn't address why the requirement to undertake due diligence is sufficient to
warrant reversing the burden of proof and it doesn't support a conclusion that
such matters are within the particular knowledge of the defendant.
The committee considers that the measures reversing the burden of
proof in relation to the proposed new statutory exceptions (defences) limit the
right to be presumed innocent. As set out above, the minister's response does
not justify that limitation for the purposes of international human rights law,
in particular that it is reasonable to reverse the burden of proof in relation
to all elements of the defence. Accordingly, the committee seeks further
information from the Minister for Defence as to why it is necessary and
proportionate to reverse the burden of proof in the cases outlined at paragraph
[1.36] to [1.37] above.
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