Chapter 2
Concluded matters
2.1
This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
Appropriation Bill (No. 3) 2014-2015
Appropriation Bill (No. 4) 2014-2015
Portfolio:
Finance
Introduced:
House of Representatives, 12 February 2014
Purpose
2.2
The Appropriation Bill (No. 3) 2014-2015 proposed appropriations from
the Consolidated Revenue Fund (CRF) for the ordinary annual services of the
government.
2.3
The Appropriation Bill (No. 4) 2014-2015 proposed appropriations from
the CRF for services that are not considered to be for the ordinary annual
services of the government.
2.4
Together, Appropriation Bill (No. 3) 2014-2015 and Appropriation Bill
(No. 4) 2014-2015 are referred to as 'the bills'.
2.5
The amounts proposed for appropriation by the bills were in addition to
the amounts appropriated through the Appropriation Acts that implemented the
2014-2015 Budget.
2.6
Measures raising human rights concerns or issues are set out below.
Background
2.7
The committee considered the bills in its Twentieth Report of the 44th
Parliament, and requested further information from the Minister for Finance
as to whether the bills were compatible with Australia's international human
rights obligations.[1]
2.8
The bills finally passed both Houses of Parliament on 17 March 2015, and
received Royal Assent on 2 April 2015.
Potential engagement and limitation of human rights by appropriations Acts
2.9
The committee noted in its previous analysis that each of the bills was
accompanied by a brief and substantially identical statement of compatibility
which notes that the High Court has stated that, beyond authorising the
withdrawal of money for broadly identified purposes, appropriations Acts 'do
not create rights and nor do they, importantly, impose any duties'.[2]
The statements of compatibility concluded that, as their legal effect is
limited in this way, the bills do not engage, or otherwise affect, human rights.[3]
They also stated that '[d]etailed information on the relevant appropriations,
however, is contained in the portfolio [Budget] statements'.[4]
No further assessment of the bills' compatibility with human rights was
provided.
2.10
The committee also noted that substantially identical statements of
compatibility were provided for previous appropriations bills considered by the
committee.[5]
Multiple rights
2.11
In accordance with its previous assessment of appropriations bills, the
committee noted in its previous analysis that proposed government expenditure
to give effect to particular policies may engage and limit and/or promote a
range of human rights. This includes rights under the International Covenant on
Civil and Political Rights and the International Covenant on Economic Social
and Cultural Rights.[6]
Assessment of the compatibility of
the bills with human rights
2.12
The committee previously considered that the High Court case which held
that appropriations Acts do not create rights or duties as a matter of
Australian law does not fully address the fact that appropriations bills may
nevertheless engage rights according to Australia's obligations under
international human rights law.
2.13
First, the committee noted that compliance with Australia's obligations
to progressively realise economic, social and cultural rights using the maximum
of resources available is reliant on government allocation of budget
expenditure.
2.14
Second, it noted that specific appropriations may involve reductions in
expenditure which amount to retrogression or limitations on rights.
2.15
The committee thus noted that the appropriation of funds facilitates the
taking of actions which both effect the progressive realisation of, and the
failure to fulfil, Australia's obligations under the treaties listed in the Human
Rights (Parliamentary Scrutiny) Act 2011.
2.16
Therefore, as noted in previous reports, the committee considered that,
where there is a sufficiently close connection between a particular
appropriations bill and the implementation of new legislation, policy or
programs, or the discontinuation or reduction in support of a particular policy
or program, that may engage human rights, the statement of compatibility for
that bill should provide an assessment of any limitations of human rights that
may arise from that engagement.[7]
2.17
The committee acknowledged that such bills may present particular
difficulties given their technical and high-level nature, and because they
generally include appropriations for a wide range of programs and activities
across many portfolios. The committee therefore also acknowledged that the
approach to human rights assessment of appropriations bills for the purposes of
the Human Rights (Parliamentary Scrutiny) Act 2011 may not
generally be possible at the level of individual measures.
2.18
However, the committee considered that the allocation of funds via
appropriations bills is susceptible to a human rights assessment that is
directed at broader questions of compatibility—namely, their impact on
progressive realisation obligations and on vulnerable minorities or specific
groups (such as children; women; Aboriginal and Torres Strait Islander Peoples;
persons with disabilities; and ethnic minorities).
2.19
The committee noted that there are some precedents in the Australian
context for assessments of this nature in relation to budgetary measures by
government and indicated its willingness to assist with the development of a
template and approach to preparing statements of compatibility for
appropriations bills that would support the assessment and examination of
appropriations bills as required by the Human Rights (Parliamentary
Scrutiny) Act 2011. The committee also noted that there are a range of
international resources to assist in preparing assessments of budgets for human
rights compatibility.
2.20
The committee considered that the appropriation of funds via annual and
additional appropriations Acts may engage and potentially limit or promote a
range of human rights that fall under the committee's mandate. The committee
considered that, where there is a sufficiently close connection between a
particular appropriations bill and the implementation of new legislation,
policy or programs, or the discontinuation or reduction in support of a
particular policy or program that may engage human rights, the statement of
compatibility for that bill should provide an assessment of any limitations of
human rights that may arise from that engagement. In order to assist the
Minister for Finance in assessing any limitations on human rights in relation
to these bills, the committee considered that attention should be given to the
following questions in assessing whether the bills are compatible with
Australia's human rights obligations: whether the bills are compatible with
Australia's obligations of progressive realisation with respect to economic,
social and cultural rights; whether any reductions in the allocation of funding
are compatible with Australia's obligations not to unjustifiably take backward
steps (a retrogressive measure) in the realisation of economic, social and
cultural rights; and whether the allocations are compatible with the rights of
vulnerable groups (such as children, women, Aboriginal and Torres Strait
Islander Peoples, persons with disabilities and ethnic minorities).
Minister's response
Thank you for
your letter of 18 March 2015 drawing my attention to comments relating to Appropriation
Bill (No. 3) 2014-2015 and Appropriation Bill (No. 4) 2014-2015 in
the Twentieth Report of the 44th Parliament of the
Parliamentary Joint Committee on Human Rights (the Committee). In particular I
note the Committee considers that appropriation bills may engage rights
according to Australia's obligations under international human rights law.
My view remains
however, that given the extremely limited legal effect of the appropriation
bills, they do not engage or otherwise affect the rights or freedoms relevant
to the Human Rights (Parliamentary Scrutiny) Act 2011. This is
consistent with the position I have previously expressed to the Committee on
the adequacy of the statements of compatibility with human rights within the
explanatory memoranda of appropriation bills.
I have noted and
carefully considered the suggestions the Committee has made to assess whether
the appropriation bills are compatible with human rights obligations. It is the
government's view, however, that there are already extensive opportunities
within the existing legislative process for the adequate scrutiny of these
bills, and changes are not required.
As my
predecessor, Senator the Hon Penny Wong, replied on 10 May 2013 the detail of
proposed Government expenditure and the Budget generally, appears in the Budget
Papers rather than appropriation Bills, with more specific detail provided in
the Portfolio Budget Statements prepared for each portfolio and authorised by
the relevant Minister. This detail allows the examination of proposed
expenditure and budgetary processes through the Senate Estimates process.
The policy
development process does however by its nature require an assessment of all
factors that might relate to the relevant policies, including environmental,
legal, economic, social and moral factors. The Attorney General's Department
has developed an assessment tool and educational materials for use by policy
officers to strengthen the capacity to develop policies, programs and
legislation consistent with human rights.[8]
Committee response
2.21
The committee thanks the Minister for Finance for his response and
his thoughtful consideration of the committee's previous suggestions.
2.22
However, the committee remains of the view that, while it may not be
possible to undertake a measure by measure analysis for compatibility with
human rights, the allocation of funds via appropriations bills is
susceptible to a human rights assessment that is directed at broader questions
of compatibility—namely, their impact on progressive realisation obligations
and on vulnerable minorities or specific groups. In particular, the committee
considers there may be specific appropriations bills or specific appropriations
where there is an evident and substantial link to the carrying out of a policy
or program under legislation that gives rise to human rights concerns.
2.23
Nevertheless, in light of the minister's response, the committee has
concluded its consideration of these bills.
Defence Legislation Amendment (Military
Justice Enhancements—Inspector-General ADF) Bill 2014
Portfolio:
Defence
Introduced:
Senate, 3 December 2014
Purpose
2.24
The Defence Legislation Amendment (Military Justice Enhancements—Inspector-General
ADF) Bill 2014 (the bill) amends the Defence Act 1903 to:
-
clarify the independence, powers and privileges of the
Inspector-General ADF;
-
provide a statutory basis to support regulatory change, including
the re-allocation of responsibility for investigation of service-related deaths
and the management of the Australian Defence Force (ADF) redress of grievance
process to the Inspector-General ADF; and
-
require the Inspector-General ADF to prepare an annual report.
2.25
Measures raising human rights concerns or issues are set out below.
Background
2.26
The committee considered the bill in its Nineteenth Report of the 44th
Parliament, and requested further information from the Minister for Defence
as to whether the proposed measures were compatible with Australia's
international human rights obligations.[9]
2.27
The bill finally passed both Houses of Parliament on 14 May 2015, and
received Royal Assent on 20 May 2015.
Inspector-General ADF investigations and inquiries—witness required to
answer questions even if it may incriminate themselves
2.28
The bill enabled regulations to be made that, in relation to
Inspector-General ADF investigations and inquiries, require a person to answer
questions even if an answer may tend to incriminate that person.
2.29
The bill includes a use and derivative use immunity provision, which
provides that any statement or disclosure made by the person in the course of
giving evidence (or anything obtained as an indirect consequence of making the
statement or disclosure) is not admissible in evidence against the witness.
2.30
However, there is an exception that would permit the statement or
disclosure to be used against the person in a prosecution for giving false
testimony.
2.31
The committee considered in its previous analysis that requiring a
witness to answer questions even if it may incriminate them engages and may
limit the right not to incriminate oneself (although this is alleviated by the
inclusion of a use and derivative use immunity clause).
Right to a fair trial (right not to
incriminate oneself)
2.32
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.
2.33
Specific guarantees of the right to a fair trial in the determination of
a criminal charge guaranteed by article 14(1) are set out in article 14(2) to
(7). These include the presumption of innocence (article 14(2)) and minimum
guarantees in criminal proceedings, such as the right not to incriminate oneself
(article 14(3)(g)) and a guarantee against retrospective criminal laws (article
15(1)).
Compatibility of the measure with
the right to a fair trial (right not to incriminate oneself)
2.34
The statement of compatibility stated that the provision granting use and
derivative use immunity promotes the right to a fair trial.
2.35
In its previous analysis, the committee noted that measures which enable
regulations to be made requiring a witness to answer a question, even if it may
tend to incriminate themselves, limit the right not to incriminate oneself.
2.36
The right not to incriminate oneself can be limited if it can be
demonstrated that the measure supports a legitimate objective, is rationally
connected to that objective and is a reasonable and proportionate way to achieve
that objective.
2.37
The statement of compatibility identified the measure's objective as
being the government's legitimate interest in ascertaining 'the true
circumstances and events subject to inquiry by Defence'. However, it provided
no information or evidence as to how inquiries are currently conducted and why
the existing provisions are insufficient.
2.38
The committee considered that, while the inclusion of the use and
derivative use immunity alleviated the impact of this measure, the immunity
provided an exception to permit a statement or disclosure made by a witness to
be used against them in a prosecution for giving false testimony. No
information was given in the statement of compatibility as to the need for this
exception to the immunity provisions and what effect this has on the right not
to incriminate oneself.
2.39
The committee therefore sought the advice of the Minister for Defence 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.
Minister's response
The Department of
Defence has long regarded ascertaining the true causes of significant events
involving its personnel as being more important than possible prosecution of,
or civil suit against, individuals. Such information enables actions to be
undertaken to prevent the reoccurrence of adverse events - for example, you may
recall that the Sea King Board of Inquiry led to major changes in the Navy's
helicopter maintenance practices.
Experience
suggests that individuals may be reluctant to provide evidence that could be
used against them. This can make it difficult to investigate and ascertain the
true causes of significant events, which are often systemic or cultural rather
than solely the fault of individuals. Compelling individuals to provide
information, even though it may implicate them in wrongdoing, and protecting
the information from use in subsequent criminal or civil proceedings, will
sometimes be the only way to determine the true causes of significant events.
This is demonstrated in cases where witnesses have refused to cooperate with
disciplinary investigations, but have provided information when compelled in an
administrative inquiry.
Under the new
arrangements made possible by the Bill, the Inspector-General of the Australian
Defence Force be responsible for inquiring into service-related deaths and
other matters directed by the Minister or the Chief of the Defence Force, in
addition to a military justice oversight role. These functions will frequently
involve ascertaining the true causes of significant events in order to prevent
reoccurrence, often in situations where individuals could be implicated and,
accordingly, where they could be reluctant to provide all relevant information.
In these circumstances, limiting the abrogation against self-incrimination to
compel witnesses to provide information to the Inspector-General ADF that may
incriminate them, while also protecting witnesses from having information they
have provided used against them, supports the legitimate objective of
ascertaining the true causes of significant events.
Under current
arrangements, the privilege against self-incrimination is abrogated by the
Defence (Inquiry) Regulations 1985 (the Regulations) which have been made under
paragraph 124(1)(gc) of the Defence Act 1903 (the Act). The abrogation
is also governed by sub-sections 124(2A), (28) and (2C) of the Act. The
privilege is abrogated for all types of inquiry under the Regulations,
including Chief of the Defence Force Commissions of Inquiry (Part 8 of the
Regulations), Boards of Inquiry (Part 3), and to a lesser extent in Inquiry
Officer inquiries (Part 6) and inquiries by the Inspector-General ADF (Part 7).
Currently, unless
I direct otherwise, a Chief of the Defence Force Commission of lnquiry must be
held into all service-related deaths. These Commissions have the ability to
require witnesses to answer questions in abrogation of their right against
self-incrimination. For consistency of approach and to ensure quality outcomes,
it is proposed that similar powers should apply to the Inspector-General ADF,
who will take over responsibility for inquiring into service-related deaths
under the new arrangements.
In these
circumstances, it is considered that allowing for the privilege against
self-incrimination to be abrogated, while protecting information collected from
subsequent use in criminal and civil proceedings, is a reasonable and
proportionate measure to achieve the objective of ascertaining the true causes
of significant events in Defence.
It should also be
noted that the abrogation of the privilege against self-incrimination can only
have an extremely limited scope due to the limitations imposed by the new
sub-section 110C(4) of the Act on the functions of the Inspector-General ADF.
Finally, Defence
regrets not including this information in the explanatory material, which may
have alleviated the Committee's concerns on these matters. A replacement
explanatory memorandum addressing these concerns was tabled in the Senate on 5
March 2015.[10]
Committee response
2.40
The committee thanks the Minister for Defence for his response.
2.41
The committee notes the minister's advice that the Inspector-General of
the Australian Defence Force will assume responsibility for inquiring into
service-related deaths instead of a Chief of Defence Force Commission of
Inquiry, and that the limitation on the right not to incriminate oneself is
consistent with current legislative arrangements under the Defence (Inquiry)
Regulations 1985.
2.42
The committee also appreciates the minister's advice that the above
further information was contained within the replacement explanatory
memorandum.
2.43
On the basis of the information provided by the Minister for Defence
and the existence of the use and deriviative use immunities, the committee
considers that the measure is likely to be compatible with the right to a fair
trial (right not to incriminate oneself).
Fair Work Amendment (Bargaining
Processes) Bill 2014
Portfolio: Employment
Introduced: House of Representatives, 27 November 2014
Purpose
2.44
The Fair Work Amendment (Bargaining Processes) Bill 2014 (the bill)
seeks to amend the Fair Work Act 2009 (FWA) to:
-
provide for an additional approval requirement for enterprise
agreements that are not greenfields agreements;
-
require the Fair Work Commission (FWC) to have regard to a range
of non-exhaustive factors to guide its assessment of whether an applicant for a
protected action ballot order is genuinely trying to reach an agreement; and
-
provide that the FWC must not make a protected action ballot
order when it is satisfied that the claims of an applicant are manifestly
excessive or would have a significant adverse impact on workplace productivity.
2.45
Measures raising human rights concerns or issues are set out below.
Background
2.46
The committee previously considered the bill in its Nineteenth Report
of the 44th Parliament, and requested further information from
the Minister for Employment as to whether measures in the bill were compatible
with human rights.[11]
Industrial action—protected action ballot order
2.47
Currently, section 443 of the FWA sets out when the FWC must make a
protected action ballot order in relation to the negotiation of a proposed
enterprise agreement. A protected ballot order allows a ballot to occur so that
employees can decide whether to engage in protected industrial action, which is
permitted by the Fair Work Act 2009 if certain requirements are
satisfied.[12]
The current requirements are that an application must have been made and that
the FWC must be satisfied that each applicant has been, and is, genuinely
trying to reach an agreement.
2.48
The bill would amend current subsection 443(2) to provide that the FWC
must not make a protected action ballot order if it is satisfied that the
applicant's claims:
-
are manifestly excessive, having regard to the conditions at the
workplace or industry; or
-
would have a significant adverse impact on productivity at the
workplace.[13]
2.49
The committee considers that this measure engages and limits freedom of
association and the right to form trade unions (specifically, the right to
strike).
Freedom of association
2.50
Article 22 of the International Covenant on Civil and Political Rights
(ICCPR) guarantees the right to freedom of association generally, and also
explicitly guarantees everyone 'the right to form trade unions for the
protection of [their] interests'.
2.51
Limitations on this right are only permissible where they are
'prescribed by law' and 'necessary in a democratic society in the interests of
national security or public safety, public order, the protection of public
health or morals, or the protection of the rights and freedoms of others'.
Article 22(3) also provides that limitations are not permissible if they
are inconsistent with the guarantees of freedom of association and the right to
organise rights contained in the International Labour Organisation Convention
of 1948 concerning Freedom of Association and Protection of the Right to
Organize (ILO Convention No. 87).
The right to form trade unions
(right to strike)
2.52
Article 8 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR) also guarantees the right of everyone to form trade unions and
to join the trade union of his or her choice; and sets out the rights of trade
unions, including the right to function freely and the right to strike.[14]
2.53
Limitations on these rights are only permissible where they are
'prescribed by law' and 'are necessary in a democratic society in the interests
of national security or public order or for the protection of the rights and
freedoms of others'. As with article 22 of the ICCPR, article 8 also provides
that limitations on these rights are not permissible if they are inconsistent
with the rights contained in ILO Convention No. 87.[15]
2.54
The committee considers that the measure engages and limits the right to
freedom of association and the right to form trade unions (right to strike) as
it places further limits on when approval to undertake protected industrial
action (that is, strike action) may be granted.
Compatibility of the measure with
right to freedom of association and the right to form trade unions (right to
strike)
2.55
The statement of compatibility acknowledges that the proposed changes
engage the right to freedom of association and the right to form trade unions
(right to strike), but states that the restrictions are reasonable, necessary
and proportionate to 'achieving the legitimate objectives of encouraging
sensible and realistic bargaining claims'.[16]
2.56
In its previous analysis the committee noted that this stated objective
only applies to the claims of an applicant (being claims made by unions and
employees) and not to claims made by employers, and that Australia already has
in place substantial regulation of industrial action. The FWA currently places
a number of restrictions on the right to strike, making it an exception to the
rule, rather than prescribing a right to strike with restrictions.
2.57
Accordingly, the committee considered that the statement of
compatibility did not demonstrate that the objective of the measure may be
considered a legitimate objective for the purposes of international human
rights law.
2.58
The committee therefore sought 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.
Minister's response
The Government's
clear position set out in The Coalition's Policy to Improve the Fair Work
Laws (the Policy), released in May 2013, was that it would legislate to
'encourage meaningful, genuine negotiations during enterprise bargaining' and
'change the laws to ensure that protected industrial action can only happen
after there have been genuine and meaningful talks'.[17]
As the Committee
is no doubt aware, protected industrial action does not occur in a vacuum.
Rather, protected industrial action is taken in support of bargaining claims.
It is therefore wholly unexceptional to expect that parties have had, or at
least attempted to have had, genuine and meaningful talks in bargaining
before they resort to industrial action.
It is approaching
the absurd to suggest that employees' right to take industrial action in
support of a bargaining position is limited by an expectation that there has at
least been an attempt to engage meaningfully on the bargaining position or that
this requirement has human rights implications that warrant the attention of a
Parliamentary Committee.
The Policy also
stated that 'it is important to ensure that claims made by parties when
negotiating for an enterprise agreement are sensible and realistic'[18]
and that the Government 'will change the laws so that the Fair Work Commission
must be satisfied that claims are realistic and sensible before they approve an
application to take industrial action'.[19]
In support of the above statements, the Policy sets out examples where
'fanciful, exorbitant or excessive' enterprise bargaining claims were, in
effect, undermining the operation of Australia's enterprise bargaining and
industrial action framework.[20]
The Fair Work
Amendment (Bargaining Processes) Bill 2014 (the Bill) seeks to implement these
commitments and respond to these concerns by providing that the independent
Fair Work Commission must not make a protected action ballot order if it is
satisfied that the bargaining claims of an applicant are manifestly excessive,
having regard to the conditions at the workplace and the industry in which the
employer operates, or, if acceded to, would have a significant adverse
impact on productivity at the workplace.
The Committee, at
1.33 of its report, refers to the permissible limitations on rights where a
limitation is 'necessary ... for the protection of the rights and freedoms of
others'. It appears the Committee has inexplicably overlooked the potentially
significant and disproportionate damage that protected industrial action can
cause not only to an employer, but to other employees and workers not engaging
in industrial action as well as on innocent third parties. Remembering also
that those engaged in protected industrial action are provided with a statutory
immunity over the loss or damage they cause to others by their industrial
action, it is appropriate and entirely unexceptional that, for the protection
of the rights of others, the powerful tool of protected industrial action is
not used capriciously and in support of claims that are manifestly
excessive or would have a significant adverse impact on productivity.
The Committee also
comments that this same standard is not applied to claims by an employer.
Whilst this is correct, the Committee's analysis embarrassingly ignores the
reality that employers have no right to unilaterally commence protected
industrial action in support of its bargaining claims. An employer's recourse
to protected industrial action depends entirely on whether employees engage in industrial
action first.
The critical
points are that these amendments do not limit the right to form trade unions by
limiting the right to strike and the Committee's assertion to the contrary
would be quite laughable if it didn't trivialise genuine human rights issues.
The Committee's bland assertion without supportive evidence undermines the
credibility of the Committee.[21]
Committee response
2.59
The committee thanks the Minister for Employment for his response.
2.60
The committee notes that the right to strike is derived from article 8
of the International Covenant on Economic, Social and Cultural Rights (ICESCR),
a binding multilateral treaty which Australia has been a party to since 1976,
and which is included in the definition of 'human rights' in section 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011.
2.61
The committee is therefore required to assess bills and legislation for
compatibility with the right to strike, and to report its findings to the
Parliament, in accordance with section 7 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
2.62
Assessments of the compatibility of legislation by the committee involve
the application of its analytical framework to, first, identify if a measure
engages a human right (that is, whether in the broadest sense the measure may
interact with a right); second, identify if a measure limits any right that is
engaged; and third, assess whether any limitation is legally justified (that
is, pursues a legitimate objective, is rationally connected to that objective
and is proportionate).
2.63
Since its inception, the committee's approach is to apply the above
analytical framework in undertaking a routine and technical examination of
legislation, which therefore necessarily does not encompass consideration of
its policy merits, or broader arguments which may be advanced in support of or
against a proposed measure.
2.64
With reference to this context, while the minister's response provides a
significant exposition of the policy rationale underpinning the bill, such
matters fall outside the scope of the committee's examination bill as guided by
the routine application of its analytical framework to the provisions of the
bill.
2.65
Turning to the committee's analysis of the measure in question, the
committee's initial report noted that the proposed amendment to subsection
443(2) of the FWA clearly engages and limits the right to strike because it
would add a further restriction on taking protected industrial action (that is,
on exercising the right to strike) in accordance with Australian law.[22]
2.66
The committee's conclusion in this respect directly supports the
analysis in the statement of compatibility for the bill, which also noted that the
measure 'may limit access to protected industrial action over certain claims.'[23]
2.67
However, the committee notes that, in his response, the minister
strongly rejects this analysis in stating that the measures:
...do not limit the
right to form trade unions by limiting the right to strike and the Committee's
assertion to the contrary would be quite laughable if it didn't trivialise
genuine human rights issues.
2.68
While noting this contradiction between the minister's own view and the
statement of compatibility for the bill (which the member of Parliament
introducing the bill must cause to be prepared), the committee restates its
support for the proposition that the placing of restrictions on the right to
strike represents a limitation of that right and, accordingly, must be
justified as pursuing a legitimate objective, being rationally connected to
that objective and proportionate.
2.69
In this respect, as set out in the committee's initial analysis, the
measures in question must be assessed with reference to the content of the
right to strike as defined and understood as a matter of international human
rights law, and taking into account the extent to which Australia's domestic
law already limits the right against those international standards.
2.70
It is therefore important to recognise that the right to strike is not
provided for under Australian law but derives from article 8 of ICESCR (with article
22 of the ICCPR also protecting some aspects of the right). Under Australian
law, taking strike action or protected industrial action is not provided for as
a right but as an exceptional event that requires a lengthy process be followed,
including prior approval from the Fair Work Commission followed by a secret
ballot of union members administered by the Australian Electoral Commission.[24]
2.71
As noted above (at footnote 5), the committee's usual practice is to
draw on the jurisprudence of bodies recognised as authoritative in specialised
fields of law that can inform the human rights treaties that fall directly
under the committee's mandate.
2.72
The committee therefore must take into account the fact that the absence
of a general right to strike under Australian domestic law has been criticised
by the Committee for Economic, Cultural and Social Rights (CESCR), which in
2009 recommended that Australia:
...remove, in law
and in practice, obstacles and restrictions to the right to strike, which are
inconsistent with the provisions of article 8 of the Covenant and ILO
Convention No. 87.[25]
2.73
Similarly, the committee must also take into account that the ILO has
previously observed, in relation to Australia and strike action that may impact
on the economy:[26]
...a broad range of
legitimate strike action could be impeded by linking restrictions on strike
action to interference with trade and commerce. While the economic impact of
industrial action and its effect on trade and commerce may be regrettable, such
consequences in and of themselves do not render a service "essential"
and thus do not justify restrictions on the right to strike.[27]
2.74
The committee also notes ILO guidance that:
The legal
procedures for declaring a strike should not be so complicated as to make it
practically impossible to declare a legal strike.[28]
2.75
The committee notes that these statements are persuasive as
interpretations of international human rights law that are consistent with the
proper interpretation of treaties as set out in the Vienna Convention on the
Law of Treaties (VCLT).[29]
2.76
To apply these considerations to the present bill, the measures in the
bill would impose further conditions on the approval of strike action, including
that such action must not be approved by the FWC if it is satisfied that the
applicant's claims:
-
are manifestly excessive, having regard to the conditions at the
workplace or industry; or
-
would have a significant adverse impact on productivity at the
workplace.[30]
2.77
Accordingly, it is without doubt that the measure limits the right to
strike by providing additional circumstances in which the FWC must not permit
strike action. Further, those additional circumstances, at least in part,
relate to economic impacts (in terms of productivity), which the ILO has unequivocally
stated are not, in and of themselves, legitimate restrictions on the right to
strike.
2.78
The minister's view that the measure does not impose any limitation on
the right to strike is therefore at odds with the committee's application of
its analytical framework to the measure, as well as the assessment provided by
the statement of compatibility for the bill.
2.79
As identified in the committee's initial analysis, the statement of
compatibility for the bill did not provide sufficient evidence to justify the proposed
limitation on the right to strike, and in particular did not provide any research
or evidence to demonstrate that the measure would address a pressing and
substantial concern (that is, would address a legitimate objective as
understood in the terms of international human rights law).
2.80
The minister's response has not sought to provide any additional
information to establish the measure pursues a legitimate objective, with
reference to the committee's legal analytical framework and the extensive
guidance provided by the Attorney-General's Department on providing assessments
of legislation for the purposes of the Human Rights (Parliamentary Scrutiny)
Act 2011.
2.81
The committee notes the absence of any justification for the measure as
pursuing a legitimate objective, and particularly the persuasive commentary of
the CESCR and ILO on existing restrictions on the right in Australia and the
impermissibility of restrictions related to economic impacts.
2.82
Some committee members considered that the measure pursued a legitimate
objective and did not impose an unreasonable restriction on the right to form
trade unions (right to strike) and, accordingly, is compatible with those
rights.
2.83
Other committee members consider that the proposed additional
requirements that must be met before the FWC can make a protected action ballot
order is a limitation on the right to freedom of association and the
right to form trade unions (right to strike). As set out above, the minister
has not justified that limitation for the purposes of international human
rights law. Those committee members therefore consider that the measure is
likely to be incompatible with those rights.
Enterprise agreement approval process—requirement to discuss workplace
productivity
2.84
As noted above, the bill would introduce a requirement that, before
approving an enterprise agreement, the FWC must be satisfied that improvements
to productivity at the workplace were discussed during the bargaining process.
2.85
Currently, sections 186 and 187 of the FWA provide that an enterprise
agreement must be approved by the FWC if certain requirements are met. This
requires the FWC to be satisfied that the agreement has been genuinely agreed
to, the terms of the agreement generally comply with the National Employment
Standards and the agreement passes the 'better off overall' test.[31]
The FWC must also be satisfied that the agreement would not be inconsistent
with, or undermine, good faith bargaining and be satisfied of certain
procedural matters.
2.86
The committee considers a provision that requires employees and
employers to discuss set matters such as improvements to productivity engages
and limits the right to freedom of association and the right to form and join
trade unions.
Freedom of association (right to
organise and bargain collectively)
2.87
The right to organise and bargain collectively is a part of the right to
freedom of association and the right to form trade unions as set out in article
22 of the ICCPR and article 8 of the ICESCR: see [2.50] to [2.54] above.
Compatibility of the measure with
the right to organise and bargain collectively
2.88
The statement of compatibility acknowledges that
the bill engages rights protected by the ILO Convention No. 87, which protects the right to organise, and the ILO Right
to Organise and Collective Bargaining
Convention 1949 (No. 98), which protects the right of
employees to collectively bargain for terms and conditions of employment. It
goes on to state that the requirement to discuss productivity before an enterprise
agreement is approved is 'reasonable, necessary and
proportionate to achieving the legitimate objectives of the Bill'.[32]
2.89
In its previous analysis the committee considered that the measure
engages and limits the right to organise and bargain collectively, as it
imposes additional requirements on what must be discussed during enterprise
agreement bargaining negotiations. The statement of compatibility states that
the measure is intended to put productivity improvements on the agenda of
negotiations, but does not explain why this is necessary or how this is a
legitimate objective for human rights purposes.
2.90
The committee therefore sought 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.
Minister's response
The Government was
very clear in the Policy that it intended to 'put productivity back on the
agenda' by requiring that 'before an enterprise agreement is approved, the Fair
Work Commission will have to be satisfied that the parties have at least
discussed productivity as part of their negotiation process'.[33]
The Bill seeks to
implement this commitment by requiring that before the Fair Work Commission
approves an agreement, it must be satisfied that improvements to productivity
at the workplace were discussed during bargaining for the agreement. That is
all. All this amendment requires is that there has been a discussion about
productivity at some point in bargaining.
The Government
reiterates (as noted in the Explanatory Memorandum to the Bill) that this
amendment is not intended to require the Fair Work Commission to consider the
merit of the improvements to productivity that were discussed, the detail of
the matters that were discussed, the outcome of those discussions or whether it
would be reasonable for certain provisions to be included in an enterprise
agreement. All that is required is that there is a discussion. This is
hardly onerous on either the employer, employees or bargaining representatives.
It was ludicrous
and unsustainable for the Committee to have concluded in its report, at 1.45,
that a requirement to have a discussion about productivity at some point during
bargaining "limits the right to organise and bargaining
collectively". Many objective observers would disagree that the need to
have a discussion 'limits' in any substantive way the right to freedom of
association and the right to organise and bargaining collectively.
The Committee's
approach to whether the requirement to have a discussion constitutes a
substantive limitation is, with respect, narrow, impractical and ignores the
realities of bargaining and again, regrettably, only trivialises the work of
the Committee and genuine human rights issues.
The Government
does not consider that the proposed amendment limits the right to freedom of association.[34]
Committee response
2.91
The committee thanks the Minister for Employment for his response.
The committee notes that collective bargaining is recognised under
international human rights law as a fundamental aspect of the right to form
trade unions, which is protected under article 8 of the ICESCR.[35]
2.92
The committee notes that the right is properly understood as procedural:
a right to access a process of collective bargaining. The process of collective
bargaining involves voluntary negotiation between the parties, which relies on
the autonomy of the parties to the negotiation, and also encompasses the
principle that parties should be free to reach their own settlement as the
outcome of bargaining processes. Generally, the role of the state is to refrain
from interfering in the conduct of negotiation between parties, as such
interference would conflict with the principle of autonomy in the bargaining
process.
2.93
As noted above, the bill would introduce a requirement that, before
approving an enterprise agreement, the FWC must be satisfied that improvements
to productivity at the workplace were discussed during the bargaining process.
As set out above at [2.84] to [2.85], this is a new requirement in the context
where collective bargaining is already heavily regulated by the FWA.
2.94
While the minister has stated his view (and that of 'many objective
observers') that the requirement to discuss improvements to productivity at the
workplace would not be onerous and would not be a 'substantive limitation on
the right to organise and bargain collectively, the committee notes that its
examination of legislation does not strictly encompass the weight of individual
or majority opinion, and is restricted to the routine application of its legal
analytical framework to the provisions of the legislation being examined.
2.95
In this regard, the committee notes that the measure imposes a
requirement on the content of discussions between parties to a collective
bargain. As such, it limits the autonomy of the parties to determine the scope
and nature of the bargain. It is therefore unequivocal that, as a matter of
law, the measure limits the right to organise and bargain collectively. On the
application of the committee's analytical framework, it follows that the
question is whether this limitation is justified as a matter of international
law.
2.96
The statement of compatibility for the bill acknowledged that the
measure may limit the right to collectively bargain but nevertheless asserted
that it was justified:
To the extent that
requiring bargaining parties to hold a discussion over productivity improvement
is said to limit the right to collectively bargain, the requirement is
reasonable, necessary and proportionate to achieving the legitimate objectives
of the Bill.[36]
2.97
As the statement of compatibility did not provide any further
information to support the assertion that the limitation was nevertheless
justified, the committee sought, with reference to the elements of its
analytical framework, further information from the minister as to the
legitimate objective of the measure, whether the measure was rationally
connected to that objective and whether the limitation was proportionate to
that objective.
2.98
The minister in response does not seek to justify the limitation on the
right to collectively bargain identified in the statement of compatibility
other than on the on the basis that the limitation in question is not 'onerous'
or 'substantive'. In not seeking to address the questions set out above at [2.57],
the response does not assess the compatibility of the measure with human rights
in the form or substance suggested by the Attorney‑General's Department
or as set out in the committee's Guidance Note 1. The minister states that:
The Committee's
approach to whether the requirement to have a discussion constitutes a
substantive limitation is, with respect, narrow, impractical and ignores the
realities of bargaining and again, regrettably, only trivialises the work of
the Committee and genuine human rights issues.
2.99
The committee is required to assess bills and legislation for
compatibility with the right to strike, and to report its findings to the
Parliament, in accordance with section 7 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
2.100
Assessments of the compatibility of legislation by the committee involve
the application of its analytical framework to, first, identify if a measure
engages a human right (that is, whether in the broadest sense the measure may
interact with a right); second, identify if a measure limits any right that is
engaged; and third, assess whether any limitation is legally justified (that
is, pursues a legitimate objective, is rationally connected to that objective
and is proportionate).
2.101
In this respect, the committee notes that the minister's response
attempts only to address the first step in assessing the human rights
compatibility of the measure. Noting the minister's view that the measure would
not impose an onerous or significant limitation on the right to collectively
bargain, it appears that it may have been possible to justify the limitation as
compatible with human rights through the application of the committee's
longstanding analytical framework (as explained in Guidance Note 1).
2.102
The committee notes the measure must be considered in the context of the
existing regulatory regime for collective bargaining.
2.103
Some committee members considered that the proposed mandated
discussion of workplace productivity during the bargaining process is not
unduly onerous and, accordingly, is compatible with the right to collectively
bargain.
2.104
Other committee members consider that the proposed requirement that
workplace productivity must be discussed before an enterprise agreement can be
approved is a limitation on the right to organise and bargain
collectively. As set out above, the response does not justify that limitation
for the purposes of international human rights law. Accordingly, those
committee members consider that the measure is likely to be incompatible with
the right to collectively bargain.
National Vocational Education and
Training Regulator Amendment Bill 2015
Portfolio:
Education and Training
Introduced:
House of Representatives, 25 February 2015
Purpose
2.105
The National Vocational Education and Training Regulator Amendment Bill
2015 (the bill) amends the National Vocational Education and Training
Regulator Act 2011 (the Act) and the National Vocational Education
and Training Regulator (Transitional Provisions) Act 2011 to:
-
extend registration periods from five to seven years;
-
require any person advertising or representing a nationally
recognised training course to clearly identify the provider responsible for the
qualification in their marketing material;
-
establish the capacity of the minister to make standards in
relation to quality in the vocational education and training sector;
-
clarify the National Vocational Education and Training (VET)
Regulator's (the regulator) ability to share information collected in the
course of its operations; and
-
make minor administrative amendments and include transitional provisions.
2.106
Measures raising human rights concerns or issues are set out below.
Background
2.107
The committee considered the bill in its Twentieth Report of the 44th
Parliament, and requested further information from the Minister for
Education and Training as to whether the bill was compatible with Australia's
international human rights obligations.[37]
2.108
The bill finally passed both Houses of Parliament on 16 March 2015, and
received Royal Assent on 2 April 2015.
Disclosure of information by the regulator
2.109
Part 4 of the bill amended the definition of 'VET information' to
include all information and documents collected by the regulator in the course
of exercising its functions or powers under the Act or in administering the
Act.
2.110
The bill also widened information disclosure provisions to allow the
regulator to disclose VET information to a Commonwealth or state or territory
authority if necessary to enable that authority to perform or exercise its
functions or powers, or to a royal commission. The bill provided that if personal
information is disclosed to a royal commission the regulator must advise the
person whose information is disclosed of the details of the information
disclosed.
2.111
The committee considered in its previous analysis that the disclosure of
personal information engages and limits the right to privacy.
Right to privacy
2.112
Article 17 of the International Covenant on Civil and Political Rights
(ICCPR) prohibits arbitrary or unlawful interferences with an individual's
privacy, family, correspondence or home. The right to privacy includes respect
for informational privacy, including:
-
the right to respect for private and confidential information,
particularly the storing, use and sharing of such information; and
-
the right to control the dissemination of information about one's
private life.
2.113
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
2.114
The statement of compatibility acknowledged that the bill engaged the
right to privacy by enabling the regulator to disclose information.[38]
2.115
The committee noted in its previous analysis that the definition of 'VET
information' is very broad and captures all information and documents collected
by the regulator in the performance of its functions. Under the Act the
regulator's functions include, in addition to registering and accrediting
courses and organisations, the issuing of VET qualifications to students.[39]
It also provides that VET student records are to be provided to the regulator,[40]
including a document or object that has been kept because of its connection to
a current or former VET student.[41]
2.116
The committee also noted that the information able to be disclosed by
the regulator could include information about students, including personal
information, and as such the committee considered that the bill limited the
right to privacy.
2.117
While the committee noted that improving the ability of the regulator to
cooperate with other government entities to remove dishonest providers is
likely to be a legitimate objective for the purposes of international human
rights law, it found it unclear, on the basis of the information provided in
the statement of compatibility, whether the measure may be regarded as
proportionate to this objective.
2.118
In particular, the statement of compatibility listed only one safeguard
in the legislation – namely, that if personal information is disclosed to a
royal commission the regulator must advise the affected person that the
information has been disclosed and give details of the information disclosed.
However, this requirement does not apply when personal information is disclosed
to a Commonwealth, state or territory authority.
2.119
The committee also noted that the definition of a Commonwealth or state
or territory authority in the Act includes any Commonwealth department, the
state or territory (as a whole) or a body established under law. This is
extremely broad, and could include hundreds of bodies or entities. The
statement of compatibility did not explain why it is necessary to enable
disclosure to all Commonwealth, state or territory authorities, rather than to
a specified list of relevant authorities.
2.120
In addition, the statement of compatibility did not describe the
specific types of personal information that might be disclosed under the bill.
2.121
The committee therefore required further information on the specific
types of personal information subject to the disclosure scheme, and why it is
regarded as proportionate to enable the disclosure of information to any
Commonwealth, state or territory authority.
2.122
The committee considered that disclosure of VET information limits the
right to privacy. The statement of compatibility for the bill did not provide
sufficient information to establish that the breadth of the measure may be
regarded as proportionate to its stated objective of improving the regulator's
ability to cooperate with other government entities to remove dishonest VET
providers.
2.123
The committee therefore sought the advice of the Minister for Education
and Training as to whether the limitation on the right to privacy imposed by
the breadth of the measure is proportionate to the measure's stated objective.
Assistant Minister's response
I note the
Committee is concerned with the amendments to the definition of 'VET
information' and the disclosure provisions, in particular in relation to the
potential for disclosure of students' personal information held by the national
training regulator, the Australian Skills Quality Authority (ASQA).
Under the
provisions of the National Vocational Education and Training Regulator Act
2011 (the Act), ASQA may, in the course of regulating registered training
organisations (RTOs), collect vocational education and training (VET)
information. After the amendments in the Bill commence, VET information will be
defined to mean information that is held by ASQA and relates to the performance
of ASQA's functions, including information and documents collected by ASQA in
the course of administering the Act, or in the exercise or performance of a
function under the Act.
I have been
advised that ASQA does collect some personal information relating to individual
students and l agree, this information will be VET information under the Act.
As the Committee
notes, one of the purposes of amending the definition of VET information is to
assist ASQA in removing dishonest providers from the VET sector. It is
envisaged that this objective will be predominantly achieved by means of ASQA
providing other (not personal) types of VET Information, such as marketing
materials to the Australian Competition and Consumer Commission.
The amended
provision allows for the possibility that there may be circumstances where it
is necessary for ASQA to disclose personal information to another agency for
the purposes of, among other things, identifying and removing unscrupulous
providers from the VET sector.
While such a
circumstance may not be a common occurrence, it is important that ASQA is able
to respond in a timely and efficient manner, and to ensure that the relevant
receiving agency has the information necessary to perform its functions or
exercise its powers. I note the Committee's concerns that this measure may
limit an individual's right to privacy. There are a number of safeguards in
place to ameliorate that risk.
ASQA will only be
permitted to disclose an individual's personal information to a Commonwealth
authority or state or territory authority if it is reasonably satisfied that
disclosure is necessary to enable or assist the authority to perform or
exercise any of its functions or powers. Under Part 9 Division 2 of the
Act, which governs the disclosure and sharing of information (including any
personal student information), it is an offence for a person to make an
unauthorised disclosure of VET information, with a penalty of two years imprisonment.
In addition, ASQA is bound by the Privacy Act 1988 and the Australian
Privacy Principles (APPs). The APPs include rules around the collection, use
and disclosure of personal information. The Office of the Australian
Information Commissioner can investigate potential breaches of the APPs.
The amended
provision, when combined with the existing privacy safeguards, is an effective
way of ensuring that the right to privacy is balanced with the need to protect
the interests of VET students, as well as to protect and enhance Australia's
reputation for VET nationally and internationally.[42]
Committee response
2.124
The committee thanks the Assistant Minister for Education and
Training for his response.
2.125
The committee notes, in particular, the assistant minister's advice regarding
the information that will be shared under the provisions, such as marketing
materials to the Australian Competition and Consumer Commission.
2.126
The committee further notes the assistant minister's advice regarding
the safeguards that will apply to these provisions, including unauthorised
disclosure offences under the National Vocational Education and Training
Regulator Act 2011.
2.127
On the basis of the information provided, the committee considers
that the measure is compatible with the right to privacy and has concluded its
examination of the bill.
Omnibus Repeal Day (Autumn 2015) Bill
2015
Portfolio:
Prime Minister and Cabinet
Introduced:
House of Representatives, 18 March 2015
Purpose
2.128
The Omnibus Repeal Day (Autumn 2015) Bill 2015 (the bill) seeks to amend
or repeal legislation across seven portfolios.
2.129
The bill also includes measures that repeal redundant and spent Acts and
provisions in Commonwealth Acts, and complements measures included in the
Statue law Revision Bill (No. 1) 2015 and the Amending Acts 1980 to 1989 Repeal
Bill 2015.
2.130
One of the Acts which would be repealed is the Aboriginal and Torres
Strait Islanders (Queensland Discriminatory Laws) Act 1975.
2.131
Measures raising human rights concerns or issues are set out below.
Background
2.132
The committee first reported on the bill in its Twenty-first Report
of the
44th Parliament, and requested further information from the
Parliamentary Secretary to the Prime Minister as to whether the bill was
compatible with Australia's international human rights obligations.[43]
Repeal of Aboriginal and Torres Strait Islanders (Queensland
Discriminatory Laws) Act 1975
2.133
As noted above, the bill seeks to repeal the Aboriginal and Torres
Strait Islanders (Queensland Discriminatory Laws) Act 1975 (the Act).
2.134
The Act contains a range of protections against discriminatory treatment
of Aboriginal people. The purpose of the Act is stated to be 'preventing
Discrimination in certain respects against those Peoples under laws of
Queensland'.[44]
2.135
Accordingly, the committee considered in its previous analysis that the
repeal of the Act engages the right to equality and non-discrimination.
Right to equality and
non-discrimination
2.136
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).
2.137
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.
2.138
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or religion),[45]
which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.[46]
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.[47]
2.139
Articles 1, 2, 4 and 5 of the Convention on the Elimination of All Forms
of Racial Discrimination (CERD) further describe the content of this right and
the specific elements that state parties are required to take into account to
ensure the elimination of discrimination on the basis of race, colour, descent,
national or ethnic origin.
Compatibility of the measure with
the right to equality and non-discrimination
2.140
While the statement of compatibility stated that repealing the Act
would have no substantive effect, the committee sought further information to
help it assess whether repealing the Act could limit the right to equality and
non-discrimination. The committee noted in particular that no details were
provided in the statement of compatibility as to the Queensland laws the Act
was designed to override, or whether the Racial Discrimination Act 1975
(RDA) provides equivalent and sufficient protection of the right to equality
and non-discrimination as is provided by the Act. The committee therefore sought
the advice of the Parliamentary Secretary to the Prime Minister as to:
-
whether existing federal legislation provides equivalent
protection of the right to equality and non-discrimination as that contained in
the Act; and
-
whether there are any Queensland laws which continue to apply
such that the Act may not be redundant.
Parliamentary Secretary's response
The Committee
seeks advice as to whether existing federal legislation provides equivalent
protection of the right to equality and
non-discrimination as that contained in the Aboriginal and Torres Strait
Islanders (Queensland Discriminatory Laws) Act 1975 (the Queensland
Discriminatory Laws Act).
The Racial
Discrimination Act 1975 (the Racial
Discrimination Act) will continue to provide protection of the rights of
Aboriginal persons and Torres Strait Islanders to equality and
non-discrimination.
Specifically,
section 9 of the Racial Discrimination Act prohibits 'direct' race
discrimination, while section 10 provides for a general right to equality before
the law. Subsection 10(3) supersedes State or Territory laws that authorise the
management of Aboriginal or Torres Strait Islander property without their
consent. This subsection is essentially in the same terms as section 5 of the
Queensland Discriminatory Laws Act.
The Committee
also seeks advice as to whether there are any Queensland laws which continue to
apply such that the Queensland Discriminatory Laws Act may not be redundant.
The Queensland
Discriminatory Laws Act deals with the Aborigines Act 1971 (Qld) and the Torres Strait Islanders Act 1971 (Qld)
and, where relevant, their successor Acts.
These Acts imposed a different legal regime on Aboriginal
and Torres Strait Islander reserves in Queensland than that which applied to
persons in other parts of Queensland.
The laws targeted by the Queensland Discriminatory Laws
Act have since been repealed. While the Discriminatory Laws Act continues to
have legal effect, it serves no practical purpose. Please refer to Attachment
A which traces changes to targeted Queensland laws, including the
removal of discriminatory aspects.[48]
2.141
See Appendix 1 for Attachment A referred to in the Parliamentary
Secretary's response.
Committee response
2.142
The committee thanks the Parliamentary Secretary to the Prime
Minister for his response.
2.143
The committee notes the Parliamentary Secretary's advice that the RDA
provides protection of the right to equality and non-discrimination, for
Aboriginal and Torres Strait Islander peoples in Queensland, which appears to
be at least equivalent to many of the protections provided under the Act.
2.144
Further, the committee notes the advice regarding Queensland laws which
have since been repealed. Attachment A of the Parliamentary Secretary's advice
usefully traces changes to those targeted discriminatory Queensland laws,
including showing when discriminatory aspects of the laws were repealed or
amended.
2.145
In light of the advice provided by the Parliamentary Secretary, and noting
in particular the protections of the Racial Discrimination Act 1975 and
the repeal of certain discriminatory laws in Queensland, the committee
considers that the repeal of the Aboriginal and Torres Strait Islanders
(Queensland Discriminatory Laws) Act 1975 is compatible with the right to
equality and non-discrimination.
Telecommunications Legislation Amendment
(Deregulation) Bill 2014
Portfolio: Communications
Introduced: House of Representatives, 22 October 2014
Purpose
2.146
The Telecommunications Legislation Amendment (Deregulation) Bill 2014
(the bill) contains a number of amendments, including to:
-
repeal the Telecommunications Universal Service Management
Agency Act 2012 to abolish the Telecommunications Universal Service
Management Agency (TUSMA);
-
transfer TUSMA’s functions and contractual responsibilities to
the Department of Communications;
-
amend the Australian Communications and Media Authority Act
2005, Export Market Development Grants Act 1997 and Telecommunications
(Consumer Protection and Service Standards) Act 1999 (the Consumer
Protection Act) to make amendments consequential on the regulation of the
supply of telephone sex services via a standard telephone service being removed
from the Consumer Protection Act;
-
amend the Do Not Call Register Act 2006 to enable an
indefinite registration period for numbers on the register; and
-
reduce requirements on carriage service providers in relation to
customer service guarantees.
2.147
Measures raising human rights concerns or issues are set out below.
Background
2.148
The committee first considered the bill in its Sixteenth Report of
the 44th Parliament, and requested further information from
the Minister for Communications as to whether the proposed repeal of Part 9A of
the Consumer Protection Act is compatible with the rights of the child.[49]
2.149
The committee considered the minister's response in its Eighteenth
Report of the 44th Parliament, and sought further information in
relation to information provided in the response.[50]
2.150
The bill passed both Houses of Parliament on 25 March 2015 and received
Royal Assent on 13 April 2015.
Repeal of Part 9A of the Consumer Protection Act
2.151
The bill repealed Part 9A of the Consumer Protection Act (CPA), which
regulates the supply of telephone sex services via a standard telephone
service. The explanatory memorandum (EM) stated that Part 9A is outdated and no
longer necessary due to changes in technology and consumer behaviour.
2.152
The statement of compatibility for the bill stated that no human rights
were engaged by this amendment.
2.153
However, the committee considered in its initial analysis that, as Part
9A was introduced in order to address community concerns that telephone sex
services were too easily accessed by children, the deregulation of these
services may expose children to a risk of harm currently minimised under Part 9A.
2.154
Accordingly, the committee considered that the measure engages article
19 of the Convention on the Rights of the Child and the obligation to protect
children from harm.
Rights of the child
2.155
Children have special rights under human rights law taking into account
their particular vulnerabilities. Under a number of treaties, particularly the
Convention on the Rights of the Child (CRC), children's rights are protected.
All children under the age of 18 years are guaranteed these rights.
2.156
The rights of children includes the right of children to develop to the
fullest; protection from harmful influences, abuse and exploitation; family
rights; and access to health care, education and services that meet their
needs.
2.157
Under article 19 of the CRC, Australia is required to take all
appropriate legislative, administrative, social and educational measures to
protect children from all forms of harm.
Compatibility of the measure with
the rights of the child
2.158
The committee sought the advice of the Minister for Communications as to
whether the proposed repeal of Part 9A of the CPA is compatible with the rights
of the child, 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.
2.159
The committee considered the minister's response in its Eighteenth
Report of the 44th Parliament, and noted the minister's response
stated that Part 9A of the CPA is not required to ensure the protection of
children from the harm of telephone sex services because of the existing
protections in Schedule 7 of the BSA.[51]
2.160
The committee noted that, in order to ensure no diminution in protection
of children from harm as required by the Convention on the Rights of the Child,
Schedule 7 of the BSA must provide equivalent protection to Part 9A of the CPA.
2.161
However, as Schedule 7 of the BSA effectively imposes a regulatory
regime on telephone sex service providers that is based on industry codes of
conduct, it was not clear from the minister's response that the protections in
Schedule 7 are equivalent to those proposed to be repealed in Part 9A of the
CPA, which imposes mandatory compliance obligations.
2.162
The committee therefore sought the advice of the Minister for
Communications as to whether Schedule 7 of the BSA offers a comparable level of
protection for children from the harm of telephone sex services to that
provided by Part 9A of the CPA as required by the Convention on the Rights of
the Child.
Minister's response
In my previous
response, I outlined the protections within Schedule 7 of the Broadcasting
Services Act 1992 (BSA) that protect children from accessing R18+ content
via a range of platforms, including telephone sex services. I note the
Committee's request for further clarification on whether Schedule 7 of the BSA
offers a comparable level in terms of protecting children from harm to that
which was provided under Part 9A of the TCPSS Act.
It may be useful
to outline the background to Part 9A, which was originally made as part of
amendments to the Telecommunications Consumer Protection and Service Standards
Bill 1998, before it was passed by the Parliament as the TCPSS Act in 1999.
Part 9A originally provided a regulatory solution to address community concern
that telephone sex services were too easily accessed by children of standard
telephone service customers. At that time there had been a steady increase in
complaints about telephone sex services since the introduction of premium rate
services in 1990-91.
However, since the
passage of the Communications Legislation Amendment (Content Services) Act
2007, provisions that ensure the protection of children from adult content,
including that delivered via telephone sex services, have resided within
Schedule 7 of the BSA. The Communications Legislation Amendment (Content
Services) Act 2007 also repealed most of the key provisions previously
contained in Part 9A of the TCPSS Act.
The Committee has
sought my advice that Schedule 7 of the BSA offers a comparable or equivalent
level of protection for children from the harm of telephone sex services to
that which was provided by Part 9A. This seems to be based on an assumption
that both Part 9A of the TCPSS Act and Schedule 7 of the BSA worked in parallel
to protect children from harm.
However, as I have
previously advised the Committee, Schedule 7 of the BSA continues to be the
primary regulatory instrument protecting children from accessing telephone sex
services or other age restricted materials. I also note that at the time
Schedule 7 of the BSA was introduced, Part 9A of the TCPSS Act was
substantially amended. Since that time, Part 9A had not contained provisions
specifically designed to protect children from harm, instead it only provided
certain limited consumer protections by:
-
regulating billing arrangements for telephone sex services; and
-
prohibiting telephone sex services from being bundled with other goods
and services.
Until its recent
repeal, section 158B of Part 9A prohibited a carriage service provider from
billing a customer in relation to the supply of a telephone sex service unless
the telephone sex service was supplied using a specific number range (that is,
the 1901 prefix, or another prefix determined by the Minister for
Communications or the Australian Communications and Media Authority (ACMA)).
However, the
former requirements in Part 9A around billing arrangements were clearly only
relevant to the extent that a consumer had access to, and had used a telephone
sex service. Fundamentally, Schedule 7 of the BSA has proven to be effective in
requiring industry to have a range of mechanisms to prevent children from
accessing telephone sex services in the first place. Therefore, I considered
the repeal of the billing arrangements for telephone sex services in Part 9A of
the TCPSS Act would clearly not in any way reduce the protection from harm
already afforded to children.
Secondly, until
its recent repeal, Section 158C of Part 9A limited how telephone sex services
were marketed and supplied, by preventing telephone sex services from being
tied to the supply of any other goods or services. The original Explanatory
Memorandum[52]
explained this was to:
"...prevent
suppliers getting customers to 'opt-in' to telephone sex services by
requiring them to 'opt-in' as a condition of purchasing certain
services, or by giving discounts or special offers if they do 'opt-in'."
There is no equivalent
or directly comparable provision contained in Schedule 7 of the BSA. However,
regardless of how telephone sex services are marketed now or into the future,
Schedule 7 provides assurances that appropriate age verification requirements
are in place to protect children from accessing these types of services in the
first instance.
In conclusion, the
recent repeal of Part 9A reflects rapid technological developments and consumer
usage trends whereby online services and mobile apps have become the preferred means
by which consumers access adult content. Further, during consultation on the
proposed repeal of Part 9A, the ACMA confirmed it had not received any
complaints in recent years about telephone sex services. Accordingly, the
Government considered Part 9A of the TCPSS Act was obsolete and notes the
repeal was supported by all stakeholders consulted, including the peak consumer
and industry representative bodies, namely the Australian Communications
Consumer Action Network and the Communications Alliance.[53]
Committee response
2.163
The committee thanks the Minister for Communications for his
response. On the basis of the further information provided, particularly
advice that Part 9A does not contain provisions specifically designed to
protect children from harm, but instead provides certain limited consumer
protections, the committee considers that the measure is compatible with the
rights of the child, and has concluded its examination of the bill.
Competition and Consumer (Industry Codes-Franchising)
Regulation 2014 [F2014L01472]
Portfolio:
Treasury
Authorising
legislation: Competition and Consumer Act 2010
Last day
to disallow: 2 March 2015
Purpose
2.164
The Competition and Consumer (Industry Codes—Franchising) Regulation
2014 (the Franchising Code) regulates the conduct of participants in
franchising relationships.
2.165
The Franchising Code replaces the Trade Practices (Industry
Codes—Franchising) Regulations 1998. It requires franchisors to disclose
certain information to franchisees, prescribes minimum standards in franchise
agreements, and provides dispute resolution processes.
2.166
The Franchising Code creates civil penalties of 300 units for the breach
of certain provisions in the Code.
2.167
Measures raising human rights concerns or issues are set out below.
Background
2.168
The committee first reported on the regulation in its Eighteenth
Report of the
44th Parliament, and requested further information from the
Minister for Small Business as to whether the bill was compatible with
Australia's international human rights obligations.[54]
Civil penalties provisions
2.169
The regulation creates civil penalties of 300 units for the breach of
certain provisions in the Franchising Code. As set out in the committee's
Guidance Note 2, civil penalty provisions may engage fair trial rights and
rights to a fair hearing. They may also engage criminal process rights such as
the presumption of innocence.
Right to a fair trial and fair
hearing rights
2.170
The right to a fair trial and fair hearing are protected by article 14
of the International Covenant on Civil and Political Rights (ICCPR). The right
applies to both criminal and civil proceedings, to cases before both courts and
tribunals and to military disciplinary hearings. The right is concerned with
procedural fairness, and encompasses notions of equality in proceedings, the
right to a public hearing and the requirement that hearings are conducted by an
independent and impartial body. Circumstances which engage the right to a fair
trial and fair hearing may also engage other rights in relation to legal
proceedings contained in article 14, such as the presumption of innocence and
minimum guarantees in criminal proceedings.
2.171
Many bills and existing statutes contain civil penalty provisions. These
are generally prohibitions on particular forms of conduct that give rise to
liability for a 'civil penalty' enforceable by a court. As these penalties are
pecuniary and do not include the possibility of imprisonment, they are said to
be 'civil' in nature and do not constitute criminal offences under Australian
law. Given their 'civil' character, applications for a civil penalty order are
dealt with in accordance with the rules and procedures that apply in relation
to civil matters; that is, proof is on the balance of probabilities.
2.172
However, civil penalty provisions may engage the criminal process rights
under articles 14 and 15 of the ICCPR where the penalty may be regarded as
'criminal' for the purposes of international human rights law. The term
'criminal' has an 'autonomous' meaning in human rights law. In other words, a
penalty or other sanction may be 'criminal' for the purposes of the ICCPR even
though it is considered to be 'civil' under Australian domestic law.
Compatibility of the measure with
the right to a fair trial and fair hearing rights
2.173
While the statement of compatibility stated that the new Franchising
Code did 'not engage any of the applicable rights or freedoms',[55]
the committee observed that civil penalty provisions prescribed in the
Franchising Code engaged the right to a fair trial and a fair hearing. Given
their 'civil' character, applications for a civil penalty order are dealt with
in accordance with the rules and procedures that apply in relation to civil matters.
2.174
However, the committed noted that 'civil' penalty provisions under
Australian domestic law may be considered 'criminal' under international human
rights law. A provision that is considered 'criminal' under international human
rights law will engage criminal process rights under articles 14 and 15 of the
International Covenant on Civil and Political Rights (ICCPR), such as the right
to be presumed innocent. The right to be presumed innocent requires, for
example, that the case against a person be demonstrated on the criminal
standard of proof, that is, be proven beyond reasonable doubt.
2.175
The committee's expectations in relation to assessing the human rights
compatibility of civil penalty provisions are set out in its Guidance Note 2.[56]
This notes that in a corporate context where the penalties are small it is
generally not necessary to provide an assessment of whether civil penalty
provisions are considered 'criminal' for the purposes of international human
rights law.
2.176
However, in this case, some of the penalties under the Franchising Code
apply to franchisees, who may be individuals or small businesses, and the
maximum civil penalty of 300 penalty units ($51000) therefore appears
significant. The committee therefore considered that, due to these factors, an
assessment was required as to whether the civil penalty provisions should be
considered 'criminal' for the purposes of international human rights law and,
if so, whether the provisions were compatible with criminal process rights
under article 14 and 15 of the ICCPR.
2.177
Accordingly, the committee sought the advice of the Minister for Small
Business as to whether the civil penalty provisions in the new Franchising Code
were compatible with the right to a fair trial and fair hearing.
Minister's response
Having regard to
the matters outlined below, I believe it is reasonable for the Committee to
conclude that the civil penalties regime set out in the Franchising Code is
not a 'criminal' penalty regime for the purposes of international human rights
law.
-
Penalties under the Franchising
Code do not apply to the public in general. Rather, they apply only in relation
to persons in a particular business relationship, in a specific
regulatory context, and are directed towards promoting openness and
transparency between the parties to that relationship. This is inconsistent
with characterising the penalties as criminal.
-
I note that the penalties are
moderate having regard to other civil penalties that are imposed under the Competition
and Consumer Act 2010 (CCA). The amount of the penalty is also mitigated by
the fact that the penalties are only imposed on persons in a particular
business relationship.
-
It is also important to appreciate
that 300 penalty units is the maximum penalty; the Court has full discretion to
determine the appropriate level of penalty having regard to all relevant
matters, including the nature and extent of the relevant conduct, any loss or
damaged suffered as a result of that conduct, the circumstances in which the
conduct took place, and whether the person has previously engaged in similar
conduct (see section 76(1) of the CCA).
I would also like
to draw the Committee's attention to the following matters, which may be
relevant to its deliberations.
-
The civil penalties imposed under
the Franchising Code slot into the existing pecuniary penalty regime
established by the CCA. This regime is long-standing and well litigated. It has not
previously been thought that the failure to apply the criminal standard of
proof in these type of proceedings has resulted in injustice. Indeed, the
courts have indicated on numerous occasions that the gravity of the allegations
being tested in the court will be taken into account, and that the graver the
allegation, the greater the strictness of proof that will be required (see, for
example, Australian Competition and Consumer Commission v IF Woo lam & Sons
Pry Ltd (2011) 196 FCR 212 at [8]).
-
The penalties imposed in respect
of clauses 6, 39 and 41 of the Code are imposed in respect of conduct engaged
in by persons in a particular relationship. The relevant provisions are
intended to encourage both parties to that relationship to act openly towards
each other. Given this, if it is accepted that it is unnecessary to apply the
criminal standard of proof to one party to that relationship (the franchisor),
it would be inappropriate to apply a different standard of proof to the other.
-
The civil penalties imposed under
the Code are but one of a number of enforcement provisions provided for in the
CCA, which include infringement notices (Part IVB, Division 2A) and public
warning notices (Part 1VB, Division 3). Given this, even if it is possible that
a civil penalty could be imposed on an individual, it is unlikely that this
would occur, save in exceptional circumstances.
Industry codes
prescribed under the provisions of the CCA are co-regulatory measures designed
to encourage best practice among an industry and improve transparency and
conduct in business to business relationships.
The introduction
of civil penalties for serious breaches of the Franchising Code is an important
development in ensuring that the franchising sector is effectively regulated.
The introduction of penalties followed extensive public consultation and
engagement with the franchising sector. There was significant industry
consensus that penalties were an appropriate mechanism for responding to
instances of inappropriate conduct in the sector.[57]
Committee response
2.178
The committee thanks the Minister for Small Business for his
response.
2.179
The committee notes the minister's belief that the civil penalties set out
in the Franchising Code should not be considered 'criminal' for the purposes of
international human rights law.
2.180
In particular, the committee notes the minister's advice that the
penalties under the Franchising Code do not apply to the public in general, but
apply in a specific regulatory context and are only imposed on persons in a
particular business relationship. A penalty is likely to be considered 'criminal'
for the purposes of international human rights law if its purpose is to punish
or deter; and it applies to the public in general (rather than being restricted
to people in a specific regulatory or disciplinary context.) The penalties are
therefore less likely to be considered 'criminal' for the purposes of
international human rights law.[58]
2.181
However, even if a penalty occurs in a regulatory context, it may still
be considered 'criminal' for the purposes of international human rights law if
the penalty carries a substantial pecuniary sanction. In relation to the
severity of the penalty, the committee notes the minister's advice that 300
penalty units is relatively moderate in its specific regulatory context when
compared to other civil penalties under the Competition and Consumer Act
2010. On this basis, the committee considers that the civil penalty
provisions under the Franchising Code are not 'criminal' for the purposes of
international human rights law. The criminal process rights contained in
articles 14 and 15 of the ICCPR are therefore not engaged or limited.
2.182
Based on the information provided, the committee considers that the
civil penalty provisions set out in the Franchising Code are not 'criminal' for
the purposes of international human rights law. Accordingly, the criminal
process rights contained in articles 14 and 15 of the ICCPR are not engaged or
limited. The committee notes that other aspects of article 14, which relate to
the right to a fair hearing in civil matters, are still engaged by the civil
penalty provisions.
2.183
The committee considers that the civil penalty provisions in the
Franchising Code are compatible with the right to a fair hearing.
Migration Amendment (Partner Visas)
Regulation 2014 [F2014L01747]
Portfolio:
Immigration and Border Protection
Authorising
legislation: Migration Act 1958
Last day to disallow: 26 March 2015
Purpose
2.184
The Migration Amendment (Partner Visas) Regulation 2014 (the regulation)
amends the Migration Regulations
1994 to increase visa application charges by 50 per cent for the subclasses
100 (Partner (Permanent)), 300 (Prospective Marriage (Temporary)) and 801
(Partner (Permanent)).
2.185
Measures raising human rights concerns or issues are set out below.
Background
2.186
The committee reported on the regulation in its Eighteenth Report of
the 44th Parliament, and requested further information from the
Minister for Immigration and Border Protection as to whether the bill was
compatible with Australia's international human rights obligations.[59]
Increase to visa application charges
2.187
The committee noted in its previous analysis that the regulation engages
the right to protection of the family.
2.188
The committee considered that the increases to visa application charges
(VACs) limit the right to protection of the family of Australian citizens and
residents who wish to live permanently in Australia with their partner.
Right to protection of the family
2.189
The right to respect for the family is protected by articles 17 and 23
of the International Covenant on Civil and Political Rights (ICCPR) and article
10 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR). Under these articles, the family is recognised as the natural and
fundamental group unit of society and, as such, being entitled to protection.
2.190
An important element of protection of the family, arising from the
prohibition under article 17
of the ICCPR against unlawful or arbitrary interference with family, is to
ensure family members are not involuntarily separated from one another. Laws
and measures which prevent family members from being together, impose long
periods of separation, or forcibly remove children from their parents, will
therefore limit this right.
Compatibility of the measure with the right to protection of
the family
2.191
The statement of compatibility for the bill states that no human rights
are engaged by the regulation.
2.192
The committee noted in its previous analysis that the fees for the
affected visa classes were, prior to the making of the regulation, already
considerable. Given this, the 50 per cent increase to the VACs could make it less
affordable and therefore more difficult for an Australian citizen or resident
to bring their partner to Australia. Accordingly, the committee considered that
the regulation may limit the right to the protection of the family.
2.193
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether the increases to certain VACs
are compatible with the right to protection of the family, and in particular
whether the limit imposed on human rights by the amendment is in pursuit of a
legitimate objective, has a rational connection between the limitation and that
objective, and is proportionate to achieving that objective.
Minister's response
This regulation
does not impact the ability of individuals to form a family. The right to
protection of the family in Articles 17 and 23 does not amount to a right to
enter or remain in Australia where there is no other right to do so. Requiring
a visa applicant to pay a higher application charge has no impact upon the
ability of the Australian citizen, permanent resident or eligible New Zealand
citizen sponsor from travelling, visiting or residing with their partner or
prospective partner in other countries. In order to demonstrate eligibility for
the visa, the applicant must show that the couple has been living together or
has not been living separately and apart on a permanent basis. This requirement
has been provides for in migration legislation since 1994. For offshore
applicants, this means that the relationship will have been established in a
country other than Australia and any separation of the couple in order to save
for the VAC would be voluntary.
The government
offers a wide range of visa options to potential applicants and it is open to
affected individuals to seek other visa options where they meet the specific
application requirements for the visa. Applicants who are affected by the VAC
increase have been encouraged to consider applying for a skilled visa, and
visitor visas are available for short term stays. As the committee points out,
it is legitimate for the Australian government to charge visa processing fees.
Given the availability of alternative visas pathways with lower associated
costs and that there is nothing preventing the couple from residing together in
the applicant's country of residence, I am of the view that this regulation
does not limit the right to protection of the family or any other applicable
rights or freedoms.[60]
Committee response
2.194
The committee thanks the Minister for Immigration and Border
Protection for his response. The committee notes the minister's view that
increasing the visa charges for partner visas does not limit the right to
protection of the family, on the basis that affected persons would have the
opportunity to travel to, visit and reside with their partner in other
countries, or to seek other visa options.
2.195
Assessments of the compatibility of legislation by the committee involve
the application of its analytical framework to, first, identify if a measure engages
a human right (that is, whether in the broadest sense the measure may interact
with a right); second, identify if a measure limits any right that is engaged;
and third, assess whether any limitation is legally justified (that is, pursues
a legitimate objective, is rationally connected to that objective and is
proportionate).
2.196
Since its inception, the committee's approach is to apply the above
analytical framework in undertaking a routine and technical examination of
legislation, which therefore necessarily does not encompass consideration of
its policy merits, or broader arguments which may be advanced in support of or
against a proposed measure.
2.197
With reference to this context, while the minister's response identifies
a number of alternatives for persons potentially affected by the increased visa
charge, the existence of such alternatives falls outside the scope of the
committee's examination of the regulation as guided by the routine application
of its analytical framework to the bill.
2.198
Turning to the committee's analysis of the increases to the VACs, the
committee considers that it is uncontentious as a matter of law that
significant increases to VACs for partners may limit the right to protection of
the family for Australian citizens and residents who wish to live permanently
in Australia with their partner. This is because such increases could represent
a 'financial barrier' to persons who wish to live with their partner in
Australia.
2.199
The committee's conclusion in this respect appears to be consistent with
guidance from the Attorney-General's Department on the preparation of
statements of compatibility, which states that the right to the protection of
the family may be engaged by policy or legislation that:
...provides for the
entry into or removal from Australia of persons under migration laws in
circumstances that may affect the unity of a family.[61]
2.200
As noted above, the statement of compatibility for the bill provided no
assessment of this limitation of the right to the protection of the family, and
the minister's response has maintained the view that the measure does not limit
the right.
2.201
The existence of alternative courses of action for persons affected by
the measure does not provide a justification for the limitation. The very
significant quantum of increase to the VACs for a partner visa from $4,575 to $6,865
could represent a substantial financial barrier to persons otherwise eligible
for the grant of a visa that would allow them to reside in Australia with their
partner. The committee also notes that the charges appear to be set at a level
that will enable the government to collect revenue and may not reflect only the
costs involved in reviewing and verifying the veracity of the visa application.
2.202
Some committee members noted the minister’s advice that applicants have
the ability to reside together in another country and, accordingly, consider
the measure is compatible with the right to protection of the family.
2.203
Other committee members considered that the regulation increasing the
visa application charges for partner visas limits the right to protection of
the family. As set out above, the Minister for Immigration and Border
Protection does not accept that the right is limited, and has provided no
justification for the limitation. Noting that the significant increase to VACs
has reduced the affordability of applying for a visa that would allow a person
to live with their partner in Australia, those committee members consider the
regulation is likely to be incompatible with the right to protection of the family.
Migration Amendment (Subclass 050 Visas)
Regulation 2014 [F2014L01460]
Portfolio:
Immigration and Border Protection
Authorising
legislation: Migration Act 1958
Last day to disallow:
2 March 2015
Purpose
2.204
The Migration Amendment (Subclass 050
Visas) Regulation 2014 (the regulation) amends the Migration Regulations 1994 to
provide the Minister for Immigration and Border Protection (the minister) with
a discretion to apply a 'no work' condition (condition 8101) on a Bridging Visa
E (BVE) granted by the minister. Previously, a 'no work' condition was mandatorily
imposed on some BVEs granted by the minister and could not be imposed on
others.
2.205
Measures raising human rights concerns or issues are set out below.
Background
2.206
The committee previously considered the bill in its Twenty-first
Report of the 44th Parliament, and requested further information
from the Minister for Immigration and Border Protection as to whether the
discretion to apply the 'no work' condition on the grant of a BVE was
compatible with the right to work, the right to an adequate standard of living,
and the obligation to consider the best interests of the child.[62]
Discretion to apply the 'no work' condition on the grant of a BVE
2.207
The discretion to apply a 'no work' condition on the grant of a BVE
engages the right to work and the right to an adequate standard of living as
well as the rights of the child. Australia's obligations under international
human rights treaties apply to all individuals lawfully in Australia and not
just to citizens.
Right to work
2.208
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).[63]
2.209
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.
2.210
Under article 2(1) of 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.
2.211
The right to work may be subject only to such limitations as are
determined by law and that are compatible with the nature of the right, and
solely for the purpose of promoting the general welfare in a democratic
society.
Compatibility of the measure with
the right to work
2.212
In its previous analysis the committee noted that the regulation in part
advances the right to work as compared with the situation prior to the making
of the regulation because some BVE visa holders will have the right to work in
Australia where previously they did not have that right.
2.213
Nevertheless, the committee noted that the right to work will not be
afforded to all BVE holders and that a BVE holder's right to work will be at
the discretion of the minister. Accordingly, the committee considered that the
regulation limits the right to work.
2.214
While the committee notes that the measure's stated objective of
protecting the integrity of the migration program may 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 (that is, as the least
rights restrictive alternative to achieve this result).
2.215
The decision to allow a BVE holder to work will be at the discretion of
the minister when granting the BVE. As the committee has previously noted,
administrative and discretionary processes are likely to be less stringent than
the protection of statutory processes.
2.216
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether the regulation imposes a
proportionate limitation on the right to work.
Right to an adequate standard of living
2.217
The right to an adequate standard of living requires that the state take
steps to ensure the availability, adequacy and accessibility of food, clothing,
water and housing for all people in Australia.
2.218
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
2.219
Working for wages is one of the primary means through which individuals
in Australia are able to obtain an adequate standard of living for themselves
and their family. The committee noted in its previous analysis that 'no work'
conditions on BVEs limit an individual's ability to ensure an adequate standard
of living through employment.
2.220
The statement of compatibility acknowledges that the regulation engages
the right to an adequate standard of living, but explains that BVE holders who
are not granted the right to work 'may nonetheless have access to financial
support' such as the Community Assistance Support (CAS) program and the Asylum
Seeker Assistance Scheme (ASAS) for eligible Protection visa applicants.
2.221
As noted at [2.214], the committee considered that it is unclear as to
whether the measure may be regarded as proportionate to its stated objective
(that is, as the least rights restrictive alternative to achieve this result).
2.222
The statement of compatibility sets out the forms of support that may be
available to BVE holders if they are unable to work, but notes that not all
individuals who are not permitted to work will be provided with support. It
states that this will 'generally' be because of non-cooperation with the
department in resolving the individual's visa status. However, there is no
statutory requirement that the minister only impose a 'no work' condition on an
individual who is not cooperating with the department. Accordingly, the
regulation may impose a limitation on the right to an adequate standard of
living which is not proportionate. A least rights restrictive approach would
appear to be to limit the power to cases where there is non‑cooperation
or other non-compliance.
2.223
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether the regulation imposes a
proportionate limitation on the right to an adequate standard of living.
Minister's response
I respectfully
advise the committee that the regulation applies only to Subclass 050 BVEs
granted by me personally under section 195A of the Migration Act. The
regulation does not apply to BVEs granted by me under other provisions of the
Migration Act, including where an individual makes a valid application for a
BVE.
Section 195A
provides me with a non-compellable, non-delegable power to grant visas to
persons who are in immigration detention under section 189 of the Migration
Act, if I think that it is in the public interest to do so. Section 189 relates
to the immigration detention of unlawful non-citizens.
As a result, the
regulation only applies to individuals who are:
- unlawful non-citizens; and
-
detained under section 189 of the Migration Act; and
-
granted a BVE by me using my personal, non-compellable power under
section 195A of the Migration Act.
Section 196(1) of
the Migration Act provides that:
'An unlawful
non-citizen detained under section 189 must be kept in immigration detention until:
(a) he or she
is removed from Australia under section 198 or 199; or
(aa) an
officer begins to deal with the non-citizen under subsection 198AD(3); or
(b) he or she
is deported under section 200; or
(c) he or she
is granted a visa.'
Granting a BVE under
section 195A is, therefore, a mechanism by which I can decide that an
individual will be released from immigration detention.
Section 195A of
the Migration Act provides that I may grant a person who is in immigration
detention a visa of a particular class, whether or not the person has applied
for the visa. When exercising my personal power under section 195A, I am not
bound by Subdivision AA (Applications for visas), Subdivision AC (Grant of
visas) or Subdivision AF (Bridging visas) of Division 3 of Part 2 of the
Migration Act, or by the Migration Regulations. As a result, I am not required
to consider whether or not an individual is able to meet the eligibility
requirements of the visa I grant. I do not have a duty to consider whether to
exercise this power, but must think that it is in the public interest to grant
the detainee a visa.
In practice,
where I grant a BVE under section 195A, it is to people who are otherwise
ineligible for the grant of a visa (for example, because the Migration Act
prevents them from making a valid visa application). Individuals who make a
valid application for a visa will have that application assessed under the
Migration Act and Migration Regulations, and visa conditions will be imposed
accordingly.
I consider that
the discretion to impose a 'no work' condition on certain BVE holders is
appropriately limited, and is a least rights restrictive approach. As outlined
above, the discretion to grant or withhold permission to work under this
regulation will only exist in the context of the exercise of my personal power
under section 195A of the Migration Act to grant a BVE to a non-citizen who has
become unlawful and been taken into immigration detention. Further, the fact
that the regulation only permits (rather than requires) me to impose the
condition does not mean that the 'no work' condition will be imposed on all
individuals to whom I grant a BVE under section 195A.
It is not
feasible or appropriate to codify the range of circumstances in which I may
exercise my power under section 195A of the Migration Act to grant a BVE to an
immigration detainee. It is, however, appropriate for permission to work to be
granted on a discretionary basis to individuals who are granted BVEs by me
using this power. This allows me to consider an individual's personal
circumstances against the integrity of the migration programme, which is a
proportionate limitation on the right to work and on the right to an adequate
standard of living. As outlined in the Statement of Compatibility for this Regulation,
this discretion also allows me to give permission to work in circumstances
where this was previously prevented by the Migration Regulations.[64]
Committee response
2.224
The committee thanks the Minister for Immigration and Border
Protection for his response. On the basis of the information provided, the
committee considers that the measure is compatible with the right to work and
the right to an adequate standard of living, and has concluded its examination
of this aspect of the instrument.
Obligation to consider the best
interests of the child
2.225
Under the Convention on the Rights of the Child (CRC), state parties are
required to ensure that, in all actions concerning children, the best interests
of the child are a primary consideration.[65]
2.226
This principle requires active measures to protect children's rights and
promote their survival, growth and wellbeing, as well as measures to support
and assist parents and others who have day-to-day responsibility for ensuring
recognition of children's rights. It requires legislative, administrative and
judicial bodies and institutions to systematically consider how children's
rights and interests are or will be affected directly or indirectly by their
decisions and actions.
Compatibility of the measure with
the obligation to consider the best interests of the child
2.227
The imposition of a 'no work' condition on the grant of a BVE holder may
inhibit a parent's ability to provide for their child. Accordingly, the
imposition of a 'no work' condition may not be in the best interests of the
child.
2.228
As noted at [2.214], the committee considered that it is unclear as to
whether the measure may be regarded as proportionate to its stated objective (that
is, as the least rights restrictive alternative to achieve this result).
2.229
The decision to allow a BVE holder to work will be at the discretion of
the minister when granting the BVE. As the committee has previously noted,
administrative and discretionary processes are likely to be less stringent than
the protection of statutory processes. In particular, given the absence of a
statutory requirement to consider the interests of a BVE holder's child when
deciding whether or not to impose a 'no work' condition, it is unclear whether
the regulation may be considered compatible with the obligation to consider the
best interests of the child.
2.230
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether the regulation imposes a
proportionate limitation on the obligations to consider the best interests of
the child.
Minister's response
As the committee
has pointed out, the Statement of Compatibility explained that I may consider
the best interests of the child (for example, the child of a non-citizen to
whom I grant a BVE under section 195A of the Migration Act) when deciding
whether or not to impose condition 8101 on a BVE granted by me under section
195A. Clearly, however, there will be circumstances in which it will not be
necessary to consider the best interests of the child, for example, where there
are no children involved.
It is my view
that the regulation does not in fact limit consideration of the best interests
of the child.[66]
Committee response
2.231
The committee thanks the Minister for Immigration and Border
Protection for his response, and has concluded its examination of this aspect
of the instrument.
The Hon Philip Ruddock MP
Chair
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