New and continuing matters
1.1
This chapter provides assessments of the human rights compatibility of:
-
bills introduced into the parliament between 30 August and 15 September
2016 (consideration of nine bills from this period has been
deferred);[1]
-
bills restored to the notice paper following the commencement of
the 45th parliament (consideration of one bill has been deferred);
-
legislative instruments received between 15 April and 18 August
2016 (consideration of six legislative instruments from this period has been
deferred);[2]
and
-
bills and legislative instruments previously deferred.
1.2
The chapter also includes reports on matters previously raised, in
relation to which the committee seeks further information following
consideration of a response from the legislation proponent.
Instruments not raising human rights concerns
1.3
The committee has examined the legislative instruments received in the
relevant period, as listed in the Journals of the Senate.[3]
Instruments raising human rights concerns are identified in this chapter.
1.4
The committee has concluded that the remaining instruments do not raise
human rights concerns, either because they do not engage human rights, they
contain only justifiable (or marginal) limitations on human rights or because
they promote human rights and do not require additional comment.
Response required
1.5
The committee seeks a response or further information from the relevant minister
or legislation proponent with respect to the following bills and instruments.
Budget Savings (Omnibus) Bill 2016
Purpose
|
The bill introduces a range
of budget-related savings measures
|
Portfolio
|
Treasury
|
Introduced
|
House of Representatives,
31 August 2016
|
Rights
|
Social security; adequate
standard of living; freedom of movement (see Appendix 2)
|
Background
1.6
The Budget Savings (Omnibus) Bill 2016 (the bill) contained a number of
re‑introduced measures which have previously been examined by the
committee. The following schedules to the bill have previously been found to be
compatible with human rights:
-
Schedule 1—Minimum repayment income for HELP debts;[4]
-
Schedule 2—Indexation of higher education support amounts;[5]
-
Schedule 3—Removal of HECS-HELP benefit;[6]
-
Schedule 6—Pause on indexation of private health insurance
thresholds;[7]
-
Schedule 11—Student start-up scholarships;[8]
-
Schedule 12—Interest charge;[9]
-
Schedule 14—Parental leave payments;[10]
-
Schedule 22—Rates of R&D tax offset;[11]
and
-
Schedule 24—Single appeal path under the Military Rehabilitation
and Compensation Act.[12]
1.7
The bill also introduced a number of new measures, many of which are
compatible with Australia's international human rights obligations:
-
Schedule 4—Job commitment bonus;
-
Schedule 5—Reduction of funding to ARENA;
-
Schedule 7—Abolishing the National Health Performance
Authority;
-
Schedule 8—Aged Care;
-
Schedule 9—Dental Services;[13]
-
Schedule 15—Fringe benefits;
-
Schedule 17—Indexation of family tax benefit and parental leave
thresholds;
-
Schedule 21–Closing carbon tax compensation to new welfare
recipient;[14]
and
-
Schedule 23—Single touch payroll reporting.
1.8
The bill passed both Houses of Parliament with amendments on 15 September
2016, and received Royal Assent on 16 September 2016.[15]
Due to the quick passage of the bill, this report is the first opportunity for
the committee to report on the human rights implications in relation to the
bill.
1.9
Measures raising human rights concerns are discussed below.
Nature of the right to social security and associated obligations
Retrogressive measures
1.10
The human rights assessment of the bill appropriately focuses on
individual measures that raise human rights concerns, and the committee's comments
below are likewise directed to specific measures. However, each measure raises
the same type of human rights concern, that is, Australia's obligation to
refrain from unjustifiable retrogressive measures in the attainment of the
right to social security.
1.11
Article 2(1) of the International Covenant on Economic, Social and
Cultural Rights (ICESCR) sets out states' obligations in relation to economic
and social rights (ESR) such as the right to social security. The right to
social security recognises the importance of adequate social benefits in
reducing the effects of poverty and plays an important role in realising many
other ESR.
1.12
Australia's obligations include an obligation of progressive realisation
of ESR to the maximum of Australia's available resources.[16]
In other words, Australia has an obligation to work to achieve full realisation
of ESR, but this may occur progressively according to the resources available
to achieve that outcome.
1.13
Australia has a corresponding duty to refrain from unjustifiably implementing
retrogressive measures. A retrogressive measure is one which reduces, or
represents a backward step in, the level of attainment of ESR. In relation to
the right to social security, this means that the state cannot unjustifiably
take steps that negatively affect the enjoyment of this right.[17]
1.14
The concept of 'progressive realisation' according to the 'maximum
available resources' means that each state is on its own path with respect to
the full realisation of ESR. That is, the nature of the obligation is not
relative to the level of attainment of ESR in other countries. Retrogressive
measures, or backward steps, are therefore to be assessed against Australia's
current level of protection of ESR.
1.15
Retrogressive measures are a form of limitation on ESR. They are
permissible providing that they are justified; and the applicable criteria are
the same as those used to assess whether other forms of limitations on human
rights are justified. That is, a measure that is retrogressive or that limits
human rights must address a legitimate objective, be rationally connected to
that objective and be a proportionate way to achieve that objective.
Accordingly, in the analysis below, the use of the term 'limitation' should be
understood as also encompassing retrogressive measures.
Assessment of the right to social security in relation to the bill
1.16
The statement of compatibility for the bill recognises that the right to
social security is engaged by a number of the measures discussed below.
However, it provides no substantive explanation of why it is to be concluded that
the measures are compatible with the right to social security. The statement of
compatibility therefore does not meet the standards outlined in the committee's
Guidance Note 1.[18]
1.17
The committee's specific requests for information from the minister
reflect the inadequacy of the human rights assessment provided in the statement
of compatibility, or the absence of such an assessment. Further information is
needed from the minister to complete an assessment of whether or not each
measure is compatible with the right.
Schedule 10—Newly arrived residents waiting period
1.18
Schedule 10 removed the exemption from the 104-week 'newly arrived
resident's waiting period' (waiting period) for new migrants who are family
members of Australian citizens or long-term permanent residents. The waiting
period requires new migrants to provide for their own financial support during
their initial settlement period in Australia by specifying that the person is
ineligible to receive social security payments for 104 weeks, unless an exemption
applies.
1.19
The effect of these amendments is that only permanent humanitarian
entrants continue to be exempt from all waiting periods.
Compatibility of the measure with the right to social security and right to
an adequate standard of living
1.20
The imposition of waiting periods before access to social security benefits engages the right to social
security and an adequate standing of living because it reduces access to social
security and may impact on a person's ability to afford the necessities to
maintain an adequate standard of living. As the removal of the exemption from
the waiting period further reduces access to social security, the measure is a
limitation of the right to social security for the purposes of international
human rights law.
1.21
However, aside from noting that the measure engages the right to social
security, the short statement of compatibility provides no substantive
assessment of whether the removal of the waiting period exemption for certain
new migrants is justifiable for the purposes of international human rights law.[19]
Committee comment
1.22
As recognised by the statement of compatibility to the bill, waiting
periods engage the right to social security. The preceding analysis explains
why the amendments constitute a limitation on the right to social security.
1.23
The committee seeks the advice of the Treasurer as to:
-
whether the removal of exemptions for the newly arrived
resident's waiting period is aimed at achieving a legitimate objective;
-
whether there is a rational connection between the limitation and
that objective; and
-
whether the limitation is a reasonable and proportionate measure
for the achievement of that objective.
Schedule 13—Debt recovery
1.24
This schedule enables Departure Prohibition Orders (DPOs) to prevent
social welfare payment recipients who have outstanding debts and have failed to
enter into a repayment arrangement from leaving the country. This measure was
previously contained within Schedule 1 to the Social Services Legislation
Amendment (Enhanced Welfare Payment Integrity) Bill 2016, which the committee
first examined in its Thirty-sixth Report of
the 44th Parliament.
1.25
The committee requested a response from
the Minister for Social Services by 1
April 2016 in relation to the compatibility of the measure with the right to freedom
of movement. The minister's response to the committee's inquiries was received
on 2 May 2016. The response is
discussed in Chapter 2 and is reproduced in full at Appendix 3.
Committee comment
1.26
The committee refers to its comments in relation to the Social
Services Legislation Amendment (Enhanced Welfare Payment Integrity) Bill 2016
in Chapter 2 to this report.
Schedule 16—Carer allowance
1.27
Prior to the passage of this bill, carer's allowance could be backdated
up to 12 weeks before the date of claim where a person is either caring for a
child with a disability or caring for an adult with a disability where the
disability is due to acute onset.
1.28
Schedule 16 of the bill amended the Social Security Administration
Act 1999 to remove these backdating provisions, with the effect that the
earliest date of effect for a grant of carer allowance is the date that the
claim was lodged or the date of first contact with the Department of Human
Services.[20]
Compatibility of the measure with the right to social security
1.29
The measure removed provisions for the backdating of social security
payments beyond the date of lodgement of a claim or the date of first contact,
which has the effect of reducing the amount of carer allowance to which a new
claimant may be entitled. The measure therefore engages and limits the right to
social security.
1.30
However, aside from noting that the measure engages the right to social
security, the statement of compatibility for the bill provides no substantive
assessment of whether the removal of the backdating provisions is justifiable
as a matter of human rights law.[21]
Committee comment
1.31
As recognised by the statement of compatibility to the bill, the
removal of the backdating provisions for carer allowance payments beyond the
date of lodgement of a claim or the date of first contact engages the right to
social security. The preceding analysis explains why the amendments constitute
a limitation on the right to social security.
1.32
The committee seeks the advice of the Treasurer as to:
-
whether the removal of the backdating provisions is aimed at
achieving a legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective (including the availability of
other forms of financial support).
Schedule 18—Pension means testing for aged care residents
1.33
Schedule 18 of the bill amended the Social Security Act 1991 and
the Veterans' Entitlement Act 1986 to remove provisions that:
-
allow aged care residents to have any rental income from their
former principal residence exempted from their assessable income for the
pension income test; and
-
provide an exemption from the pension asset test in respect of a
former principal residence where the property is rented and aged care
accommodation costs are paid on a periodic basis.
1.34
These amendments do not apply to existing age care residents. New
entrants to aged care will have their former primary residence assessed under
the assets tests after two years of living in aged care, unless the home is
occupied by a protected person.[22]
1.35
The changes mean that some new entrants to aged care may no longer
qualify for the pension or may have their pension reduced.
Compatibility of the measure with the right to social security
1.36
As the measure has the effect of excluding some new entrants to aged
care from eligibility for the pension, the measure engages and limits the right
to social security.
1.37
The statement of compatibility acknowledges that the measure engages the
right to social security and appears to identify the objectives of the measure
as ensuring that the social security system:
-
is sustainable, by reducing pension outlays;
-
is targeted to those in need, by reducing pension support to
those who have the financial capacity to be more self-reliant;
-
encourages self-provision, by progressively withdrawing pension
payments as an individual's level of income and assets increases to ensure that
people with additional private income and assets are better off than those
relying solely on the pension; and
-
is fair, by ensuring individuals with similar levels of income
and assets receive similar levels of assistance through the pension.[23]
1.38
While these may be considered legitimate objectives for the purposes of
international human rights law, the statement of compatibility does not fully assess
whether the changes to means testing for the pension are justifiable as a
matter of human rights law,[24]
including whether the changes are rationally connected to and a proportionate
means of achieving these objectives.
1.39
Some useful information is provided about the monetary impact of the
measures including potential impacts on the funding of aged care. However, further
analysis of how the changes may affect a person's ability to fund an adequate
level of aged care was needed (for example, whether the loss or reduction of
the pension could limit access to an aged care facility for some individuals).
Such information is relevant to assessing both the effectiveness of the measure
in achieving its stated objectives (rational connection) and its
proportionality. It may also have implications for other human rights such as
the right to health and the right to an adequate standard of living.
Committee comment
1.40
As recognised by the statement of compatibility to the bill, the
changes to means testing for the pension in respect of new aged care residents
engages and limits the right to social security.
1.41
The committee seeks the advice of the Treasurer as to:
-
whether the differential treatment of new entrants to aged
care is rationally connected to and a proportionate means of achieving the
objective; and
-
whether the limitation will affect a person's ability to
access an aged care facility.
Schedule 19—Employment income (nil rate periods)
1.42
Schedule 19 of the bill removed two income test exemptions for parents
in 'employment nil rate periods'.
1.43
A person whose social security pension or benefit is not payable because
of ordinary income (made up entirely or partly of employment income) may
qualify for an 'employment income nil rate period'. During this period the
person is still considered to be receiving a social security pension or benefit
for the purposes of qualifying for certain other benefits, including retaining
a health care card, certain supplementary benefits and remaining exempt from
income tests for certain family payments. An 'employment nil rate period' can
last for up to 12 weeks. After this period, unless the person's income has
reduced sufficiently to qualify them for at least a part rate of social
security pension or benefit, their pension or benefit is cancelled.[25]
1.44
The two exemptions that were removed are the:
-
Family Tax Benefit Part A (FTB Part A) income test; and
-
Parental income test that applies to dependent children receiving
youth allowance and ABSTUDY living allowance.
1.45
As a result, households with an income above the relevant income-free
threshold may have their FTB Part A, or dependent child's youth allowance or
AUSTUDY payments, reduced for periods where a parent is receiving sufficient
employment income to trigger an employment income nil rate period.
Compatibility of the measure with the right to social security
1.46
The effect of removing the exemptions from income testing for parents in
employment nil rate periods is to reduce the social security entitlement of
those persons. The measure therefore engages and limits the right to social
security.
1.47
However, while the statement of compatibility recognises that the
measure engages the right to social security, and provides some information
that could be relevant to identifying its legitimate objective, it effectively
provides no substantive assessment of whether the removal of the exemptions is
justifiable as a matter of human rights law.[26]
Committee comment
1.48
As recognised by the statement of compatibility to the bill, the
removal of two income test exemptions engages the right to social security. The
preceding analysis explains why the amendments constitute a limitation.
1.49
The committee seeks the advice of the Treasurer as to:
-
whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
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.
Schedule 20—Psychiatric confinement
1.50
Schedule 20 provided that an individual who is undergoing psychiatric
confinement because they have been charged with a serious offence will not be
able to access social security payments for the period of the confinement.
1.51
This measure was previously contained in the Social Services Legislation
Amendment Bill 2015, which the committee examined in its Twenty-second
Report of the 44th Parliament and Twenty‑fifth Report
of the 44th Parliament; and which lapsed at the prorogation of
the Parliament on 17 April 2016.
1.52
In its concluding remarks on that bill, the committee noted that the
measure may be incompatible with the right to social security; and recommended
that the bill be amended to set out the specific circumstances in which a
person will be considered to be undertaking integration back into the community
and, as such, be eligible for social security.
1.53
The bill was amended to remove Schedule 20.
Committee comment
1.54
The committee notes that the bill was amended to remove Schedule 20
and refers to its previous comments on the Social Services Legislation
Amendment Bill 2015 in its Twenty-second Report of the 44th
Parliament and Twenty‑fifth Report of the 44th
Parliament.
Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016
Purpose
|
The bill would establish a
scheme to permit the continuing detention of 'high risk terrorist offenders'
at the conclusion of their custodial sentence
|
Portfolio
|
Attorney-General
|
Introduced
|
Senate, 15 September 2016
|
Rights
|
Liberty; freedom from
arbitrary detention; right to humane treatment in detention; prohibition on
retrospective criminal laws (see Appendix 2)
|
Continuing detention of persons currently imprisoned
1.55
The bill proposes to allow the Attorney-General (or a legal
representative) to apply to the Supreme Court of a state or territory for an
order providing for the continued detention of individuals who are imprisoned
for particular offences under the Criminal Code Act 1995 (Criminal
Code).[27]
The Attorney-General may also apply for an interim detention order pending the
hearing of the application for a continuing detention order.[28]
The effect of these orders is that a person may be detained in prison after the
end of their custodial sentence.[29]
1.56
The particular offences in respect of which a person may be subject to
continuing detention will include:
-
international terrorist activities using explosive or lethal
devices;[30]
-
treason;[31]
and
-
a 'serious offence' under Part 5.3,[32] or an offence under Part
5.5,[33]
of the Criminal Code.
1.57
Individuals who have committed crimes under these sections of the
Criminal Code are referred to in the bill as 'terrorist offenders'.
1.58
The court is empowered to make a continuing detention order where:
-
an application has been made by the Attorney-General or their legal
representative for the continuing detention of a 'terrorist offender';
-
after having regard to certain matters,[34]
the court is satisfied to a high degree of probability, on the basis of
admissible evidence, that the offender poses an unacceptable risk of committing
a serious Part 5.3 offence if the offender is released into the community;
and
-
the court is satisfied that there is no other less restrictive measure
that would be effective in preventing the unacceptable risk.[35]
1.59
The Attorney-General bears the onus of proof in relation to the above
criteria.[36]
The standard of proof to be applied is the civil standard of the balance of
probabilities.[37]
1.60
While each detention order is limited to a period of up to three years, further
applications may be made and there is no limit on the number of applications.[38]
This means that a person's detention in prison could be continued for an
extended period of time.
1.61
This bill provides that a person detained under a continuing detention order
must not be held in the same area or unit of the prison as those prisoners who
are serving criminal sentences, unless it is necessary for certain matters set
out in proposed section 105A.4(2).[39]
Compatibility of the measure with the right to be free from arbitrary
detention
1.62
The measure allows ongoing preventative detention of individuals
who will have completed their custodial sentence. At the outset, it is observed
that the use of preventative detention, that is, detention of individuals that
does not arise from criminal conviction but is imposed on the basis of future
risk of offending, is a serious measure for a state to take.
1.63
While the measure engages and limits a range of human rights, the
focus of this assessment is on the right to liberty, which includes the right
to be free from arbitrary detention. Forms of detention that do not arise from
a criminal conviction are permissible under international law, for example, the
institutionalised care of persons suffering from mental illness. However, the
use of such detention must be carefully controlled: it must reasonable,
necessary and proportionate in all the circumstances to avoid being arbitrary,
and thereby unlawful under article 9 of the International Covenant on Civil and
Political Rights (ICCPR).
1.64
Specifically, post-sentence preventative detention of persons who
have been convicted of a criminal offence may be permissible under
international human rights law in carefully circumscribed circumstances.[40]
The UN Human Rights Committee has stated that:
to avoid arbitrariness, the additional
detention must be justified by compelling reasons arising from the gravity of
the crimes committed and the likelihood of the detainee's committing similar
crimes in the future. States should only use such detention as a last resort
and regular periodic reviews by an independent body must be assured to decide
whether continued detention is justified. State parties must exercise caution
and provide appropriate guarantees in evaluating future dangers. The conditions
in such detention must be distinct from the conditions for convicted prisoners
serving a punitive sentence and must be aimed at the detainee's rehabilitation
and reintegration into society.[41]
1.65
The question therefore is whether the proposed preventative
detention regime is necessary and proportionate, and not arbitrary within the
meaning of article 9, bearing in mind the specific guidance in relation to
post-sentence preventative detention.
1.66
For the purposes of this analysis, it can be accepted that the
proposed continuing detention order regime pursues the legitimate objective of
'protecting the community from the risk of terrorist attacks',[42]
and the measure is rationally connected to this stated objective in the sense
that the individual subject to an interim or continuing detention order will be
incapacitated while imprisoned. However, questions arise as to whether the
regime contains sufficient safeguards to ensure that preventative detention is
necessary and proportionate to this objective.
1.67
The proposed continuing detention order regime shares significant
features with the current continuing detention regimes that exist in New South
Wales (NSW),[43]
and Queensland.[44]
These state regimes apply in respect of sex offenders and/or 'high risk violent
offenders' and have the following elements:
-
the Attorney-General or the state may apply to the Supreme Court
for a continuing detention order for particular classes of offenders;[45]
-
the application must be accompanied by relevant evidence;[46]
-
the effect of the continuing detention order is that an offender
is detained in prison after having served their custodial sentence in relation
to the offence;[47]
-
the court may make a continuing detention order if it is
satisfied to a 'high degree of probability' that the offender poses an
'unacceptable risk' of committing particular offences;[48]
-
in determining whether to make the continuing detention order,
the court must have regard to a list of factors;[49]
-
the court must consider whether a non-custodial supervision order
would be adequate to address the risk;[50]
-
the term of continuing detention orders can be made for extended
periods of time;[51]
and
-
the availability of periodic review mechanisms.[52]
1.68
These continuing detention schemes were the subject of individual
complaints to the UN Human Rights Committee (UNHRC) in Fardon v Australia,[53]and Tillman v Australia.[54]
In Fardon v Australia, the author of the complaint had been convicted of
sex offences in 1989 and sentenced to 14 years imprisonment in Queensland. At
the end of his sentence, the complainant was the subject of continuing
detention from June 2003 to December 2006. In Tillman v Australia the complainant
was convicted of sex offences in 1998 and sentenced to 10 years imprisonment in
NSW. At the end of his sentence, the complainant was the subject of a series of
interim detention orders, and finally a continuing detention order of one year
(effectively for a period from May 2007 until July 2008).
1.69
The UNHRC found that the continued detention in both cases was arbitrary
in violation of article 9 of the ICCPR. In summary, the UNHRC identified the
following as relevant to reaching these determinations:
-
as the complainants remained incarcerated under the same prison
regime the continued detention effectively amounted to a fresh term of
imprisonment or new sentence. This was not permissible if a person has not been
convicted of a new offence; and is contrary to the prohibition against
retrospective criminal laws (article 15 of the ICCPR), particularly as in both
instances the enabling legislation was enacted after the complainants were
first convicted;
-
the procedures for subjecting the complainants to continuing
detention were civil in character, despite an effective penal sentence being
imposed. The procedures therefore fell short of the minimum guarantees in
criminal proceedings prescribed in article 14 of the ICCPR;
-
the continued detention of offenders on the basis of future
feared or predicted dangerousness was 'inherently problematic'. The application
process for continuing detention orders required the court to 'make a finding
of fact on the suspected future behaviour of a past offender which may or may
not materialise.' The complainants' predicted future offending was based on
past conduct, for which they had already served their sentences; and
-
the state should have demonstrated that the complainant could not
have been rehabilitated by means other than detention which were less rights
restrictive.
1.70
The UNHRC's findings and the Australian government's formal response in
relation to the similar schemes were not referred to in the statement of
compatibility.
1.71
A number of the concerns about the NSW and Queensland schemes are
relevant to an assessment of the current continuing detention proposal,
including:
-
individuals currently incarcerated may be subject to continuing
detention contrary to the prohibition on retrospective criminal law;
-
the civil standard of proof applies to proceedings (that is, the
standard of the balance of probabilities rather than the criminal standard of
beyond reasonable doubt);[55]
and
-
the difficulties arising from the court being asked to make a
finding of fact in relation to the risk of future behaviour.
1.72
There are however two points of difference to the NSW and Queensland
schemes.
1.73
First, the bill provides that a person detained under a continuing
detention order must not be held in the same area or unit of the prison as
those prisoners who are serving criminal sentences, except in certain
circumstances. This safeguard appears to respond to one of the bases upon which
the state-level regimes were incompatible with article 9, namely, that the
applicants were incarcerated within the same prison regime, and therefore their
preventative detention in effect constituted a fresh term of imprisonment after
they had served their sentence. However, it is noted the bill nonetheless does
provide that persons subject to continuing detention orders are to be detained
in prison and that there is a series of circumstances in which they may be
detained in the same area or unit as those prisoners serving criminal sentences.
1.74
Second, the bill requires that a court may only make a continuing
detention order if satisfied that there is 'no other less restrictive measure
that would be effective in preventing the unacceptable risk'.[56]
Accordingly, the bill appears to incorporate some aspects of the test of
proportionality under international human rights law.[57]
1.75
This aspect of the bill appears to be a safeguard against the use of a
continuing detention order in circumstances where an alternative to detention
is available. However, it is not apparent from the bill how it is envisaged
that this safeguard would operate in practice including whether and how the
court would be able to provide for or assess less restrictive alternatives.
Under the NSW and Queensland regimes, if satisfied that a prisoner is a serious
danger to the community (in Queensland) or is a high risk sex offender or high
risk violent offender (in NSW), it is open to a court to make either a
continuing detention order or a supervision order.[58]
By contrast, the bill does not empower the court to make an order other than a
continuing detention order, although the bill does contain an annotation that a
control order is an example of a less restrictive measure.
1.76
Further, it should be noted that the proposed legislative test requires
consideration of whether the continuing detention order is the least rights
restrictive only at the particular point of time at which it is being
contemplated by the court, at or towards the end of the sentence. It is likely
that interventions might be possible earlier in respect of a particular
offender, such as effective de-radicalisation and rehabilitation programs.
Including a requirement to consider this type of intervention, both prior to
and after making any continuing detention order, would support an assessment of
the proposed regime as proportionate, particularly that post-sentence detention
is provided as a measure of last resort and is aimed at the detainee's
rehabilitation and reintegration into society.
1.77
Finally, in the proposed scheme the assessment of 'unacceptable risk' is
crucial in determining whether the court is empowered to make a continuing
detention order. As the risk being assessed relates to future conduct there are
inherent uncertainties in what the court is being asked to determine, akin to
the concerns in Fardon v Australia and Tillman v Australia. The
bill provides for the court to obtain expert evidence in reaching a
determination in relation to risk, though given the nature of the task inherent
uncertainties with risk assessments remain.[59]
Other jurisdictions have sought to minimise these uncertainties by recommending
that a 'Risk Management Monitor' be established to undertake a range of
functions including developing best practices for risk assessments; developing
guidelines and standards; validating new assessment tools; providing for
procedures by which experts become accredited for assessing risk; providing
education and training in the assessment of risk; and developing risk
management plans.[60]
Such a body is intended to act as a safeguard in relation to the quality of
risk assessments.
Committee comment
1.78
The proposed continuing detention regime engages and limits the right
to liberty, as identified by the statement of compatibility.
1.79
The UNHRC has previously found that substantially similar existing
preventative detention regimes in Queensland and NSW were incompatible with the
right to be free from arbitrary detention and lacked sufficient safeguards.
1.80
The committee notes that the bill contains certain safeguards which
may support an assessment that the regime of continuing detention orders is
necessary, reasonable and proportionate; however, the analysis above raises
questions regarding the adequacy of these safeguards, particularly in light of
the UNHRC's determinations in relation to the state-level regimes.
1.81
The committee therefore seeks the advice of the Attorney-General as
to the extent to which the proposed scheme addresses the specific concerns
raised by the UNHRC as set out at [1.69] in respect of existing post-sentencing
preventative detention regimes.
1.82
The committee further seeks the advice of the Attorney-General as to how
the court's consideration of less restrictive measures pursuant to proposed
section 105A.7 is intended to operate in practice, including:
-
what types of less restrictive measures may be considered by
the court;
-
what options might be available to the court to assess or make
orders in relation to the provision of less restrictive alternatives; and
-
whether the Attorney-General will consider whether there are
less restrictive alternatives in deciding whether to make an application for a
continuing detention order.
1.83
The committee also seeks the advice of the Attorney-General as to the
feasibility of the following recommendations:
-
to address concerns regarding the application of the civil
standard of proof to proceedings, that the bill be amended to provide for a
criminal standard of proof (as currently is the case under the Dangerous
Sexual Offenders Act 2006 (WA), section 40);
-
to assist in addressing concerns regarding assessments of
future 'unacceptable risk', that a Risk Management Monitor be established including
the functions outlined at [1.77];
-
to assist in addressing concerns regarding the application of
retrospective criminal laws (article 15 of the ICCPR), that the bill be amended
to only apply to new offenders; and
-
that the bill be amended to ensure the availability of
rehabilitation programs to offenders that may be subject to the continuing
detention order regime.
Fair Work Amendment (Respect for Emergency Services Volunteers) Bill 2016
Purpose
|
The bill amends the Fair
Work Act 2009 in relation to enterprise agreements or workplace
determinations that cover emergency management bodies
|
Portfolio
|
Employment
|
Introduced
|
House of Representatives, 31
August 2016
|
Rights
|
Freedom of association;
collectively bargain; just and favourable conditions of work (see Appendix
2)
|
Prohibition of terms affecting emergency services
volunteers in enterprise agreements
1.84
The Fair Work Amendment (Respect for Emergency Services Volunteers) Bill
2016 (the bill) would amend the Fair Work Act 2009 (Fair Work Act) to
provide that an enterprise agreement covering 'designated emergency management
bodies' must not include terms that adversely affect a body that manages
emergency services volunteers (volunteer body). 'Designated emergency
management bodies' include fire-fighting bodies, State Emergency Services,
bodies prescribed by the regulations, and bodies established for a public
purpose by or under a Commonwealth, state or territory law.
1.85
Enterprise agreements covering designated emergency management bodies
would be prohibited from including an 'objectionable emergency
management term'. These prohibited terms are defined as terms that have, or
would be likely to have, the effect of:
-
restricting or limiting a volunteer body's ability to engage or
deploy volunteers; provide support or equipment to those volunteers; manage its
relationship with, or work with, any recognised emergency management body in
relation to those volunteers; or otherwise manage its operations in relation to
those volunteers;
-
requiring a volunteer body to consult, or reach agreement with,
any other person or body before taking any action for the purposes of engaging
or deploying its volunteers; providing support or equipment to those
volunteers; managing its relationship with, or working with, any recognised
emergency management body in relation to those volunteers; or otherwise
managing its operations in relation to those volunteers;
-
restricting or limiting a volunteer body's ability to recognise,
value, respect or promote the contribution of its volunteers to the well-being
and safety of the community; or
-
requiring or permitting a volunteer body to act other than in
accordance with a law of a state or territory, so far as the law confers or
imposes on the body a power, function, or duty that affects or could affect its
volunteers.[61]
1.86
The amendments made by the bill would also have the effect of
invalidating terms in existing enterprise agreements that would have the above
effects.
Compatibility of the measure with the right to freedom of association and just
and favourable conditions of work
1.87
The right to freedom of association includes the right to collectively
bargain without unreasonable and disproportionate interference from the state.
The right to just and favourable conditions of work includes the right to safe
working conditions, and the right to join trade unions. These rights are
protected by the International Covenant on Civil and Political Rights (ICCPR)
and the International Covenant on Economic, Social and Cultural Rights
(ICESCR).[62]
1.88
The interpretation of these rights is informed by International Labour Organization
(ILO) treaties, including the ILO Convention of 1948 concerning Freedom of
Association and Protection of the Right to Organize (ILO Convention No. 87)
and the ILO Convention of 1949 concerning the Right to Organise and Collective
Bargaining (ILO Convention No. 98), which protects the right of employees to
collectively bargain for terms and conditions of employment.[63]
1.89
Prohibiting the inclusion of particular terms in an enterprise agreement
engages and limits the right to just and favourable conditions of work and the
right to collectively bargain. The principle of 'autonomy of bargaining' in the
negotiation of collective agreements is an 'essential element' of Article 4 of
ILO Convention No. 98 which envisages that parties will be free to reach
their own settlement of a collective agreement.[64]
Where matters are excluded from the scope of bargaining, the outcomes that may
be reached between the parties are restricted.
1.90
Measures limiting human rights are generally permissible providing
certain criteria are satisfied. To be capable of justifying a limit on human
rights, the measure must address a legitimate objective, be rationally
connected to that objective and be a proportionate way to achieve that
objective. Additionally, limitations on the right to freedom of association
will only be 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'.[65]
1.91
The ILO's Freedom of Association Committee (FOA Committee) has stated
that 'measures taken unilaterally by the authorities to restrict the scope of
negotiable issues are often incompatible with Convention No. 98'.[66]
However, the FOA Committee has noted that there are circumstances in which it
might be legitimate for a government to limit the outcomes of a bargaining
process, stating that:
any limitation on collective bargaining on the part of the
authorities should be preceded by consultations with the workers' and employers'
organizations in an effort to obtain their agreement.[67]
1.92
The current bill proposes to expand the range of terms that may be
'unlawful terms' in the Fair Work Act.[68]
However, the proposed definition of 'objectionable emergency management term'
is very broad, and may restrict the scope of negotiation and ultimately
bargaining outcomes for numerous matters in enterprise agreements, including
matters relating to staffing levels or occupational health and safety.
1.93
The statement of compatibility to the bill questions whether the bill
engages rights at work, stating that:
the extent to which the Bill engages such rights, and either
promotes or limits these rights, is dependent on the nature of the particular
term that is an objectionable emergency management term. Any limits to these
rights would be an indirect effect of the operation of the Bill, that would be
reasonable, necessary and proportionate to the legitimate objective of
protecting the role of emergency services volunteers, and the broader community
that the volunteers serve.[69]
1.94
However, the statement of compatibility does not explain the connection
between protecting the role of emergency services volunteers and the broad
proposed definition of 'objectionable emergency management term'.
1.95
Likewise, in relation to the right to collectively bargain, the
statement of compatibility states that the measure will 'enhance the integrity
of collectively bargained terms and conditions of employment contained in the
enterprise agreement', however it does not explain the connection between this
objective and the broad proposed definition of 'objectionable emergency
management term'.
1.96
The statement of compatibility recognises that the bill engages
collective bargaining rights and the right to freedom of association, but does
not provide a substantive assessment as to whether the restriction on the
freedom to collectively bargain is justifiable for the purposes of
international human rights law.[70]
Committee comment
1.97
The committee notes that the preceding legal analysis identifies the prohibition
of terms in enterprise agreements as engaging and limiting the right to freedom
of association, the right to collectively bargain, and the right to just and
favourable conditions of work; and raises questions as to its compatibility
with these rights. In order to finalise its assessment of this bill, the
committee seeks the advice of the Minister for Employment as to:
-
whether the measure is aimed at achieving a legitimate objective
for the purposes of human rights law;
-
whether the measure is rationally connected to the achievement of
that objective;
-
whether the limitation is a reasonable and proportionate measure to
achieve the stated objective; and
-
whether consultation has occurred with the relevant workers' and
employers' organisations in relation to the measure.
Plebiscite (Same-Sex Marriage) Bill 2016
Purpose
|
The bill seeks to establish
the legislative framework for, and authorise federal spending on, a
compulsory vote in a national plebiscite to ask Australians whether the law
should be changed to allow same-sex couples to marry
|
Portfolio
|
Attorney-General
|
Introduced
|
House of Representatives,
14 September 2016
|
Rights
|
Right to equality and
non-discrimination (see Appendix 2)
|
Public funding of the campaigns regarding the plebiscite proposal
1.98
The Plebiscite (Same-Sex Marriage) Bill 2016 (the bill) sets up a
framework for a national plebiscite to ask registered voters whether the law
should be changed to allow for same-sex marriage.
1.99
As part of this framework, section 11A of the bill provides for up to
$15 million in public funding to be made equally available to two
committees established to conduct public campaigns either not in favour of the
proposal or in favour of the proposal.
Compatibility of the measure with the right to equality and
non-discrimination
1.100
Under the right to equality and non-discrimination in article 26 of the
International Covenant on Civil and Political Rights, States are required to
prohibit any discrimination and guarantee to all people equal and effective
protection against discrimination on any ground. Article 26 lists a number of
grounds as examples as to when discrimination is prohibited, which includes sex
and 'any other status'. While sexual orientation is not specifically listed as
a protected ground, the treaty otherwise prohibits discrimination on 'any
ground', and the United Nations Human Rights Committee has specifically
recognised that the treaty includes an obligation to prevent discrimination on
the basis of sexual orientation.[71]
On this basis, by restricting marriage to being between a man and a woman the
existing law[72]
appears to directly discriminate against same-sex couples on the basis of
sexual orientation.[73]
However, while the plebiscite relates to possible amendments to the Marriage
Act 1961 and the framework proposed by the bill engages the right to equality
and non‑discrimination, the statement of compatibility makes no reference
to it.
1.101
Australia's obligations under international human rights law in relation
to the right to equality and non-discrimination are threefold:
-
to respect—which requires the government not to interfere with or
limit the right to equality and non-discrimination;
-
to protect—which requires the government to take measures to
prevent others from interfering with the right to equality and non‑discrimination;
and
-
to fulfil—which requires the government to take positive measures
to fully realise the right to equality and non-discrimination.
1.102
In relation to a number of other grounds of discrimination the federal
Parliament has adopted a significantly different approach to that taken in this
bill. In particular, federal legislation directly prohibits discrimination on
the basis of race, sex, disability and age.[74]
In contrast, this bill establishes, and provides substantial public funding to,
a 'Committee for the No Case' whose sole function is to publicly campaign
against changing the law to promote the right to equality and non‑discrimination
for same-sex couples. Were the campaign conducted by the 'Committee for the No
Case' to lead to vilification against persons on the basis of their sexual orientation,
this would not further respect for the principles of equality and
non-discrimination.
Committee comment
1.103
The committee notes that public funding of the No Case engages the
right to equality and non-discrimination. The committee further notes that, in
addition to concern about whether a campaign could lead to vilification against
persons on the basis of their sexual orientation, funding of the Yes Case also
raises concerns about whether a campaign could lead to vilification against
persons on the basis of their religious belief.
1.104
The statement of compatibility has not identified or addressed the
engagement of the right to equality and non-discrimination. Noting the concerns
raised, the committee seeks the advice of the Attorney-General as to whether
the measure is compatible with the right to equality and non-discrimination and
whether any guidelines in relation to the expenditure of funding or other
safeguards will apply.
Obligations on broadcasters
1.105
The bill imposes a requirement on broadcasters that for a month before
the plebiscite vote they must give a reasonable opportunity to a representative
of an organisation that is not in favour, or is in favour, of the plebiscite
proposal to broadcast 'plebiscite matter' during that period.[75]
This applies to commercial television and radio broadcasters, community
broadcasters, subscription television and persons providing broadcasting
services under a class licence. It also applies to the Special Broadcasting
Service (SBS) if, during the plebiscite period, SBS broadcasts plebiscite
matter in favour or not in favour of the plebiscite.
1.106
'Plebiscite matter' is broadly defined to include matter commenting on
the plebiscite itself, and also includes any matter commenting on same-sex
marriage (not necessarily connected to the plebiscite).[76]
Compatibility of the measure with the right to freedom of expression and
the right to equality and non-discrimination
1.107
The statement of compatibility states that the bill would promote the
right to freedom of expression by ensuring that broadcasters cannot selectively
broadcast only one side of the debate. It also states that it would promote the
right to participate in public affairs by ensuring that the free press and
other media are able to comment on public issues and inform public opinion.[77]
The statement of compatibility goes on to say:
While this requirement may affect the editorial independence
of broadcasters, the requirement would be time limited. The impact on
broadcasters would be balanced with the promotion of the rights to freedom of
expression by to [sic] participate in public affairs. The requirement to give
reasonable opportunities is consistent with the approach taken to federal
elections and referendums in the Broadcasting Services Act 1992.[78]
1.108
The statement of compatibility makes no reference to the right to
equality and non-discrimination.
1.109
Under the Broadcasting Services Act 1992 (Broadcasting Act),
broadcasters are currently required to give reasonable opportunities for the
broadcasting of election matter to all political parties contesting the
election during the election period. However, this is limited to political
parties that were represented in either House of Parliament immediately before
the election.[79]
It is also confined to 'election matters' which relates to soliciting votes for
a candidate, supporting a political party or commenting on policies of the
party or matters being put to the electors.
1.110
In contrast, the bill would require broadcasters to give an opportunity
to representatives of any organisation opposed to or in favour of the
plebiscite. It would also apply to the broadcasting of material relating not
only to the plebiscite, but also to same-sex marriage more broadly (not
restricted to the question of whether the law should be amended).
1.111
The right to freedom of expression requires States to ensure that public
broadcasting services operate in an independent manner and should guarantee
their editorial freedom.[80]
While enabling both sides of a debate in a national plebiscite to air their
views may be a legitimate objective in promoting freedom of expression and the
right to participate in public affairs, it is a limitation on editorial
freedom. Such a limitation must be proportionate to the legitimate aim sought
to be achieved. This requires effective safeguards or controls over the
measures.
1.112
The only safeguard cited in the statement of compatibility is that the
requirement relating to the plebiscite is time limited. However, the
corresponding requirement in the Broadcasting Act restricts broadcasting opportunities
to existing political parties already represented in the Parliament. This
provides a safeguard towards helping to ensure that broadcasters are not
required to broadcast the advertisements of organisations unlikely to be
elected. The current provisions in the bill provide no equivalent safeguard. In
addition, the proposed definition of 'plebiscite matter' is not equivalent to
that in relation to 'election matters' because it is not restricted to the
question of whether the law should be amended, but includes any matter
commenting on same-sex marriage more broadly.
1.113
Additionally, as noted above, Australia's international human rights law
obligation is to respect, promote and fulfil the right to equality and non‑discrimination.
Requiring broadcasters to give a reasonable opportunity to the representative
of any organisation opposed to the plebiscite proposal to discuss same-sex
marriage generally could lead to vilification of persons on the basis of their
sexual orientation, which would not further respect for the principles of
equality and non-discrimination.
Committee comment
1.114
The committee notes that requiring broadcasters to give a reasonable
opportunity to the representatives of any organisation in relation to
'plebiscite matters' engages the right to equality and non-discrimination. The
statement of compatibility has not identified or addressed the engagement of this
right.
1.115
The committee further notes that, in addition to concerns about
whether the proposed access to broadcasting could lead to vilification against
persons on the basis of their sexual orientation, it also raises concerns about
whether a campaign could lead to vilification against persons on the basis of
their religious belief.
1.116
Noting these concerns, the committee seeks the advice of the Attorney‑General
as to whether the measure is compatible with the right to equality and
non-discrimination and whether any guidelines or other safeguards will apply.
1.117
The preceding legal analysis also raises concerns regarding
limitations on the editorial freedom of broadcasters and whether appropriate
safeguards are in place. The committee therefore seeks the advice of the
Attorney-General as to whether the limitation is a reasonable and proportionate
measure for the achievement of its stated objective, and in particular, whether
there are sufficient safeguards in place with respect to the right to freedom
of expression.
Australian Crime Commission Amendment (National Policing Information)
Regulation 2016 [F2016L00712]
Purpose
|
The regulation supports the
merger of CrimTrac and the Australian Crime Commission
|
Portfolio
|
Attorney-General
|
Authorising Legislation
|
Australian
Crime Commission Act 2002
|
Last day to disallow
|
21 November 2016
|
Rights
|
Privacy (see Appendix
2)
|
Collection and use of 'national policing information'
1.118
Subsection 4(1) of the Australian Crime Commission Act 2002 (ACC
Act) defines 'national policing information' as
information that is collected by the Australian Federal Police, the police
force of a state or a body prescribed by the regulations and which is
of a kind prescribed by the regulations.
1.119
The Australian Crime Commission Amendment (National Policing Information)
Regulation 2016 (the regulation) prescribes a list of 310 bodies that collect
'national policing information', and provides that the kind of information
prescribed is information that is held by or used to administer twenty listed
systems. The prescription of these bodies and systems is intended to allow the
Australian Crime Commission (ACC) to carry out CrimTrac's former functions
following the merger of the two agencies. The regulation attempts to capture
all information that is now collected and disseminated by the ACC through the
former CrimTrac systems, to enable the ACC to carry out its new 'national
policing information function'.
Compatibility of the measure with the right to privacy
1.120
The right to privacy includes the right to respect for private and
confidential information and may be subject to permissible limitations in a
range of circumstances. As national policing information is likely to include
private, confidential and personal information, the collection, use and
disclosure of such information by the ACC engages and limits the right to
privacy.
1.121
The statement of compatibility for the regulation acknowledges that the
right to privacy is engaged and concludes that the regulation 'creates
permissible limitations on the right to privacy'.
1.122
However, while the statement of compatibility describes the purpose of
the regulation, it provides very little assessment of its impact on the right
to privacy. The statement of compatibility therefore does not meet the
standards outlined in the committee's Guidance Note 1, which require
that, where a limitation on a right is proposed, the statement of compatibility
provide a reasoned and evidence-based assessment of how the measure pursues a
legitimate objective, is rationally connected to that objective, and is
proportionate.
1.123
In this respect, the goal of allowing the ACC to continue CrimTrac's
functions following the merger of the two agencies may be a legitimate
objective for the purposes of international human rights law. However, while it
is clear that the information prescribed as 'national policing information'
replicates information that was previously held by CrimTrac, some explanation
of why the ACC requires access to each class of prescribed information is
required to properly assess whether the regulation is compatible with the right
to privacy. This is because, unless the ACC requires access to each class of
prescribed information, the collection of that information may not be
rationally connected to, or the least rights restrictive way of achieving, the
stated objective of the measure.
1.124
Further, the information prescribed by the regulation includes
information from a very broad range of organisations, such as local, state and
federal government departments and agencies; church organisations; health and
aged care organisations; educational institutions; and listed companies such as
Qantas and PricewaterhouseCoopers. So too the information to be held in the
prescribed systems will encompass a wide range of personal information,
including names; birthdates; photographic identification; and DNA, fingerprints
and other biometric information. As a scheme that is overly broad is unlikely
to be compatible with the right to privacy, a proportionate limit on the right
to privacy in this case requires the scheme to prescribe only that information
which is necessary to achieve the stated objective of the measure.
1.125
Finally, because the ACC is not subject to the Privacy Act 1988 (Privacy
Act), the collection and use of the prescribed information by the ACC is not, as
it was formerly when administered by CrimTrac, subject to the Privacy Act, the
protections for personal information contained in the Australian Privacy
Principles or oversight by the Australian Information Commissioner. However,
the statement of compatibility does not explain why it is necessary that the
collection and use of the prescribed information is no longer subject to these
protections, and provides no information on what other safeguards will apply to
the collection and use of national policing information by the ACC (including
whether any such safeguards are comparable to those contained in the Privacy
Act and Australian Privacy Principles).
Committee comment
1.126
The committee notes that the collection and use of 'national policing
information' engages and limits the right to privacy. The statement of
compatibility has not sufficiently justified this limitation.
1.127
The committee observes that the preceding legal analysis raises
questions as to whether all of the information prescribed is necessary to achieve
the objective of the regulation; and whether there are effective safeguards in
place to protect the privacy of individuals whose personal information may be
classed as 'national policing information'.
1.128
The committee therefore seeks the advice of the Attorney-General as
to whether the limitation is a reasonable and proportionate measure for the
achievement of its stated objective, and in particular, whether there are
sufficient safeguards in place to protect the right to privacy (including
safeguards that are comparable to those contained in the Privacy Act 1988).
Biosecurity (Human Health) Regulation 2016 [F2016L00719]
Purpose
|
The regulation sets out the
requirements for human biosecurity measures to be taken under the Biosecurity
Act 2015
|
Portfolio
|
Health
|
Authorising legislation
|
Biosecurity Act 2015
|
Last day to disallow:
|
21 November 2016
|
Rights
|
Privacy (see Appendix
2)
|
Requirements for taking, storing and using body samples
1.129
Section 10 of the Biosecurity (Human Health) Regulation 2016 (the
regulation) sets requirements for taking, storing, transporting, labelling and
using body samples obtained from an individual who has undergone a specified
kind of examination to determine the presence of a human disease as a
requirement of a human biosecurity control order.[81] A human biosecurity control
order may require an individual to undergo medical examination and have body
samples taken even without consent in certain circumstances.[82]
Compatibility of the measures with the right to privacy
1.130
The right to privacy includes the right to respect for private
information and the right to personal autonomy and physical and psychological
integrity, and may be subject to permissible limitations in a range of
circumstances.
1.131
Requirements for taking, storing, transporting, labelling and using body
samples engage and limit the right to privacy.[83]
Bodily samples taken and retained for testing purposes contain very personal
information. International jurisprudence has noted that genetic information
contains 'much sensitive information about an individual' and, given the nature
and amount of personal information contained in cellular samples, 'their
retention...must be regarded as interfering with the right to respect for the
private lives of the individuals concerned'.[84]
Further, as the taking of such samples may occur without consent under this
regime, this will interfere with a person's personal autonomy and physical
integrity as an aspect of the right to privacy.
1.132
The right to privacy may be subject to reasonable limits. However, the
right to privacy is not addressed in the statement of compatibility. The
committee's usual expectation where a measure limits a human right is that the
accompanying statement of compatibility provide a reasoned and evidence-based
explanation of how the measure supports a legitimate objective, is rationally
connected to that objective and is a proportionate way to achieve that
objective.
1.133
Determining the presence of human diseases entering Australia is likely
to be an important mechanism for protecting public health. As such, the
measures are likely to be considered to be pursuing a legitimate objective for
the purposes of international human rights law.
1.134
The measures also appear to be rationally connected to that objective,
in that the prescription of human biosecurity measures (such as taking body
samples) to test for human diseases is likely to be effective in reducing the
risk of human diseases entering Australia.
1.135
However, it is unclear whether the requirements for taking, storing and
using body samples obtained from an individual set out in this regulation, are
proportionate to achieving that objective. Under the regulation, there does not
appear to be sufficient safeguards required to be put in place to protect the
privacy of individuals whose body samples are taken.
1.136
The regulation provides that the body samples must 'be taken in a manner
consistent with appropriate medical standards';[85] and 'stored, transported,
labelled and used in a manner consistent with appropriate professional
standards that are relevant to managing the risks to human health of listed
human diseases'.[86]
However, neither the regulation nor the explanatory statement defines which
medical and professional standards apply. Accordingly, it is unclear whether
this standard provides adequate safeguards including in relation to medical
procedures that may be intrusive.
1.137
Further, the regulation does not include any requirements relating to
how body samples are to be taken, the procedure for managing test results, and
how long samples or records of the testing will be retained.
1.138
The regulation does not include requirements that the body samples be
done in the least personally intrusive manner or that the records be destroyed
after a certain period of time.
1.139
The regulation is silent as to whether such samples will be retained. It
is unclear whether there is other existing legislation that would govern the
retention and destruction of samples taken in accordance with the regulation.
These factors would be relevant to considering whether the measure is a
proportionate limit on the right to privacy.
Committee comment
1.140
The committee notes that the taking, storing, transporting, labelling
and using of body samples engages and limits the right to privacy. The
statement of compatibility has not addressed this limitation.
1.141
The committee observes that the preceding legal analysis raises
questions as to whether there are effective safeguards in place to protect the
privacy of individuals who are subject to body sampling in accordance with the
regulation. This includes safeguards in relation to the taking, storing,
transporting, labelling and using body samples under the regulation.
1.142
The committee therefore seeks the advice of the Attorney-General as
to whether the limitation is a reasonable and proportionate measure for the
achievement of its stated objective, and in particular, whether there are
sufficient safeguards in place to protect the right to privacy.
Census and Statistics Regulation 2016 [F2016L00706]
Purpose
|
The regulation prescribes
the statistical information to be collected for the census
|
Portfolio
|
Treasury
|
Authorising legislation
|
Census and Statistics
Act 1905
|
Last day to disallow
|
21 November 2016
|
Rights
|
Privacy (see Appendix
2)
|
Statistical information to be collected from persons for the census
1.143
Sections 9–12 of the Census and Statistics Regulation 2016 (the
regulation) set what 'statistical information' is to be collected from persons
for the census. This includes a person's name, address, sex, age, marital status,
relationship to the other persons at the residence, level of educational
attainment, employment, income, rent or loan repayments, citizenship, religion,
ancestry, languages spoken at home and country of birth. Failing to provide
this statistical information may result in an offence.[87]
Compatibility of the regulation with the right to privacy
1.144
The right to privacy encompasses respect for informational privacy,
including the right to respect for private information and private life,
particularly the storing, use and sharing of such information.
1.145
However, this right may be subject to permissible limitations in a range
of circumstances.
1.146
The compulsory collection, use and retention of personal information by
government through an official census engages and limits the right to privacy.[88]
The statistical information that is to be collected, used and retained under the
regulation reveals very significant information about an individual and their
personal life, including matters such as country of birth, ancestry, marital
status, living arrangements and income. This information provides a very
detailed picture of an individual's life.
1.147
Additionally, the information collected may be used on its own or with
other information to identify, contact or locate a person.
1.148
The Census and Statistics Act 1905 (the Act) provides for
penalties of up to $180 per day for failure to comply with a direction to
provide the prescribed statistical information.[89]
1.149
While the right to privacy may be subject to reasonable limits, the statement
of compatibility provides no assessment of whether the limitation arising from
sections 9–12 of the regulation is a permissible limit on the right to privacy.
The committee's usual expectation is that, where a measure limits a human right,
the accompanying statement of compatibility provide a reasoned and
evidence-based explanation of how the measure supports a legitimate objective,
is rationally connected to that objective and is a proportionate way to achieve
that objective.
1.150
In relation to the apparent objective of the measures, the regulation is
likely to be considered as pursuing a legitimate objective for the purposes of
international human rights law. Collecting detailed information on the
population and the socio‑economic status of households in Australia is an
important mechanism for governments to make informed decisions on resource
distribution, including the implementation of housing, healthcare, education
and infrastructure programs. Further, the availability of accurate statistical
data is a particularly important tool for governments to fulfil a range of
human rights obligations, including in relation to economic, social and
cultural rights and rights to equality and non-discrimination.
1.151
The measures also appear to be rationally connected to their objective,
in that the categories of information collected by the census, such as a
person's age, income and educational attainment, may provide a valuable
evidence base for policy development and government decision making.
1.152
However, it is unclear whether the measures are a proportionate means of
achieving their apparent objective. To be proportionate limitations of the
right to privacy, the measures must be accompanied by appropriate safeguards
and be sufficiently circumscribed with respect to the collection, use,
retention and disclosure of personal information. A measure that lacks these
elements may not be the least rights restrictive way of achieving the objective
of the measure, in which case it would be incompatible with the right to
privacy.
1.153
The regulation itself makes no provision for how the statistical
information collected under it may be used, retained, stored and disclosed. The
regulation is also silent as to how long the information, including identifying
information such as names and address, will be retained.
1.154
The Act does make provision in relation to when statistical information
may or may not be disclosed. For example, it permits the minister, with the
written approval of the Australian Statistician, to make legislative
instruments providing for the disclosure of information provided in the census.[90]
The Act also provides that information of a personal or domestic nature
relating to a person shall not be disclosed in a manner that is likely to
enable the identification of that person,[91]
and makes provision for the non-disclosure of census information to agencies or
to a court or a tribunal.[92]
1.155
However, the Act provides no further specific limitations on how the
statistical information collected under the regulation will be used and retained,
including for what period of time. The statement of compatibility does not
explain whether other legislative privacy protections apply in these
circumstances.[93]
Accordingly, there is a significant question as to whether the provisions in
the Act and the regulation provide sufficient safeguards in relation to the
right to privacy.
1.156
The Australian Bureau of Statistics (ABS), which is responsible for
administrating the census, has a stated policy that it:
[W]ill conduct regular audits of the protection mechanisms,
and the use and the need for ongoing retention of Census names and addresses.
For the 2016 Census, the ABS will destroy names and addresses when there is no
longer any community benefit to their retention or four years after collection
(i.e. August 2020), whichever is earliest.[94]
1.157
It is noted that all names and addresses collected in the 2011, 2006 and
all previous censuses were destroyed approximately 18 months after the conduct
of the censuses.[95]
1.158
The potentially prolonged linking and retention of names and addresses
with other statistical information raises concerns about whether this
represents the least rights restrictive approach. Noting the sensitive
information that is required to be disclosed through the census, such linking
may increase the risk of misuse of information and adverse impacts on an
individual.
1.159
The retention of names and addresses collected in the 2016 census as a
matter of ABS policy may point to the need to have more specific standards in
the Act or regulation about how statistical data may be used, stored and
retained. Under international human rights law, permissible limits on human
rights must be prescribed by law. This means that a measure limiting a right must
be set out in legislation (or be permitted under an established rule of the
common law). It must also be accessible and precise enough so that people know
the circumstances under which government agencies may restrict their rights.[96]
1.160
Further, where a measure limits a human right, discretionary or
administrative safeguards alone are likely to be insufficient for the purpose
of a permissible limitation. The law needs to indicate with sufficient clarity
the scope of any discretion conferred on government agencies and the manner of
its exercise.[97]
This recognises that administrative and discretionary safeguards are less
stringent than the protection of safeguards that are placed on a statutory
footing.
Committee comment
1.161
The committee notes that the compulsory collection, use and retention
of personal information through an official census engages and limits the right
to privacy. The statement of compatibility has not identified or addressed this
limitation.
1.162
The committee observes that the preceding legal analysis raises
questions as to whether there are effective safeguards in place to protect the
privacy of individuals who provide personal statistical information in
accordance with the regulation. This includes safeguards in relation to the
collection, use, storage, disclosure and retention of personal information
under the regulation.
1.163
The committee therefore seeks the advice of the Treasurer as to
whether the limitation is a reasonable and proportionate measure for the
achievement of its apparent objective, and in particular, whether there are
sufficient safeguards in place to protect the right to privacy.
Federal Financial Relations (National Partnership payments) Determination
No. 104—8 (March 2016)—(July 2016)
Purpose
|
Specifies the amounts to be
paid to the states and territories to support the delivery of specified
outputs or projects, facilitate reforms by the states or reward the states
for nationally significant reforms
|
Portfolio
|
Treasury
|
Authorising legislation
|
Federal Financial
Relations Act 2009
|
Last day to disallow
|
Exempt
|
Right/s
|
Health; social security;
adequate standard of living; children; education (see Appendix 2)
|
Background
1.164
The committee previously examined a number of related National
Partnership payments determinations made under the Federal Financial
Relations Act 2009 and requested and received further information from the
Treasurer as to whether they were compatible with Australia's human rights
obligations.[98]
1.165
This report considers a number of new Federal Financial Relations
(National Partnership payments) Determinations (the determinations).[99]
Payments to the states and territories for the provision of health,
education, employment, housing and disability services
1.166
The Intergovernmental Agreement on Federal Financial
Relations (the IGA) is an agreement providing for a
range of payments from the Commonwealth government to the states and territories.
These include National Partnership payments (NPPs), which are financial contributions to support the delivery of specified projects,
facilitate reforms or provide incentives to jurisdictions that deliver on
nationally significant reforms. These NPPs are set out in National Partnership agreements made under the
IGA, which specify mutually agreed objectives, outcomes, outputs and
performance benchmarks.
1.167
The Federal Financial Relations
Act 2009 provides
for the minister,
by legislative instrument, to determine the total amounts payable in respect
of each NPP in line with the parameters established by the relevant
National Partnership agreements. Schedule
1 to the determinations sets out the amount payable under the NPPs, contingent
upon the attainment of specified benchmarks or outcomes relating to such things
as healthcare, employment, disability, education, community services and
affordable housing.
Compatibility of the measure with multiple rights
1.168
Setting benchmarks for achieving certain standards, which may
consequently result in fluctuations in funding allocations, has the capacity to
both promote rights and, in some cases, limit rights. As such, the determinations
could engage a number of rights, including:
-
the right to health;
-
the right to social security;
-
the right to an adequate standard of living including housing;
-
the rights of children; and
-
the right to education.
1.169
Under international human rights law, Australia has obligations to
respect, protect and fulfil human rights. This includes specific obligations to progressively realise economic, social
and cultural (ESC) rights using the maximum of resources
available, and a corresponding duty to refrain from taking retrogressive
measures, or backwards steps, in relation to the realisation of these rights.
1.170
Because realisation of these rights
is reliant on government allocation of expenditure, a reduction in funding for
services such as health and education may be considered a retrogressive measure
in the attainment of ESC rights.[100]
Any backward step in the level of attainment of such rights therefore needs to
be justified for the purposes of international human rights law.
1.171
In relation to their human rights compatibility, the explanatory
statements for the determinations state:[101]
It is difficult to
assess the human rights compatibility of either the determination or the making
of National Partnership payments as the amounts paid to each state vary
each month, since individual States meet varying milestones and benchmarks
under different National Partnerships. However, in general, National
Partnerships will promote multiple human rights by facilitating the provision
of additional funding to the States to support service delivery in a range of
areas. As such, neither this determination nor the making of National
Partnership payments could be said to have a detrimental impact on any human
rights.[102]
1.172
While the committee has previously acknowledged that month to month
variations in funding may make it difficult to undertake a full human rights
analysis for each NPP,[103]
their contingent nature means that states or territories which do not meet
agreed-upon benchmarks or outcomes in one month may receive less funding than
in other months. This in turn could be expected to reduce the funding allocated
to deliver services such as healthcare, affordable housing and education,[104]
which may be regarded as a retrogressive measure in the realisation of ESC
rights.
1.173
In terms of the requirement to justify retrogressive measures for the
purposes of international human rights law, NPPs may be regarded as pursuing
the legitimate objective of providing tied funding in accordance with mutually-agreed
performance benchmarks and outcomes. However, the explanatory statements to the
determinations do not provide any particular or general assessment of the
extent to which fluctuations in funding, with reference to the achievement or
failure to achieve specific benchmarks or outcomes, may promote human rights
(where funding is increased) or be regarded as retrogressive (where funding is
reduced).
Committee comment
1.174
The committee notes that
the setting of benchmarks for achieving certain standards that give rise to
fluctuations in funding allocations engages and may promote or limit human
rights.
1.175
The committee notes that the preceding legal analysis raises
questions as to whether the setting of benchmarks and the consequential allocation
of funding through determinations is compatible with Australia's obligations of
progressive realisation with respect to ESC rights. Accordingly, the committee
requests the Treasurer's advice as to:
-
whether the setting of benchmarks for the provision of funds
under the NPPs is compatible with human rights (for example, how the benchmarks
may or may not support the progressive realisation of human rights such as the
rights to health and education);
-
whether there are any retrogressive trends over time
indicating reductions in payments which may impact on human rights (such as,
health, education or housing); and
-
whether any retrogressive measures or trends:
-
pursue a legitimate objective;
-
are rationally connected to their stated objective; and
-
are a reasonable and proportionate measure for the achievement
of that objective.
Social Security (Administration) (Vulnerable Welfare Payment Recipient)
Amendment Principles 2016 [F2016L00770]
Purpose
|
This instrument amends the
Social Security (Administration) (Vulnerable Welfare Payment Recipient)
Principles 2013 to insert additional decision-making principles that are
relevant to making a determination that a person is a 'vulnerable welfare
payment recipient' for the purposes of the Social Security
(Administration) Act 1999
|
Portfolio
|
Social Services
|
Authorising Legislation
|
Social Security
(Administration) Act 1999
|
Last day to disallow
|
21 November 2016
|
Rights
|
Equality
and non-discrimination; social security, adequate standard of living; private
life (see Appendix 2)
|
Background
1.176
The Social Security (Administration) Act 1999 provides the
legislative basis for the income management regime in place for certain welfare
recipients in the Northern Territory and other prescribed locations.[105]
Income management limits the amount of income support paid to recipients as
unconditional cash transfers and imposes restrictions on how the remaining
'quarantined' funds can be spent. A person's income support can be subject to
automatic deductions to meet 'priority needs', such as food, housing and
healthcare. The remainder of the restricted funds can only be accessed using a
'BasicsCard', which can only be used in certain stores and cannot be used to
purchase 'excluded goods' or 'excluded services'.[106]
1.177
A person on welfare benefits can voluntarily sign up for income
management, or be made subject to compulsory income management. Certain young
people who are determined to be 'vulnerable welfare payment recipients' may be
automatically subject to compulsory income management.
1.178
The committee examined the income management regime in its 2013
and 2016 Reviews of the Stronger Futures measures.[107]
In its 2016 review, the committee noted that the income management measures
engage and limit the right to equality and non-discrimination, the right to
social security and the right to privacy and family.[108]
Time limits on 'vulnerable welfare recipient' determinations
1.179
Through the 'vulnerable measure' of income management, 50 per cent of a
person's income support and family payments can be restricted, as described at
paragraph [1.176], if a person is considered vulnerable to financial hardship,
at risk of economic abuse, or at risk of homelessness. For vulnerable young
people, the Secretary of the Department of Social Services (the secretary) must
make a determination that a young person is a 'vulnerable welfare payment
recipient' if they are in receipt of certain payments,[109]
unless an exception applies.[110]
1.180
A determination that a young person is a 'vulnerable welfare payment recipient'
is an automatic trigger to place that person on income management, meaning that
a young person who is the subject of this determination will be subject to
compulsory income management without an assessment of their individual
suitability for the program.
1.181
The Social Security (Administration) (Vulnerable Welfare Payment
Recipient) Principles 2013 (the 2013 Principles) govern how an assessment that
a person is a vulnerable welfare payment recipient must be made by the
secretary.
1.182
The Social Security (Administration) (Vulnerable Welfare Payment
Recipient) Amendment Principles 2016 (the new instrument) amends the 2013
principles to place a 12-month limit on certain determinations made by the
secretary that result in vulnerable young people being automatically subject to
income management.
Compatibility of the measure with human rights
1.183
Subjecting a person to compulsory income management for any length of
time engages and limits the following rights:
-
the right to equality and non-discrimination;
-
the right to social security; and
-
the right to privacy and family.
1.184
Each of these rights is discussed in detail in the context of the income
management regime in the committee's 2016 Review of Stronger Futures
measures (2016 Review).[111]
1.185
In the 2016 Review, the committee accepted that the income management
regime pursues a legitimate objective for the purposes of international human
rights law, but questioned whether the measures were rationally connected to
achieving the stated objective and were proportionate.[112]
The committee's report noted:
While the income management regime may be of some benefit to
those who voluntarily enter the program, it has limited effectiveness for the
vast majority of people who are compelled to be part of it.[113]
1.186
As noted above at [1.179], young people who receive certain payments are
subject to automatic compulsory income management. Unlike the process for
making other vulnerable welfare payment recipient determinations under the 2013
Principles,[114]
the secretary is not required to make an individual assessment of whether
income management is appropriate for a young person who receives these
payments. As the committee noted in its 2016 review, this is relevant to
assessing the proportionality of the income management measure:
In assessing whether a measure is proportionate some of the
relevant factors to consider include whether the measure provides sufficient
flexibility to treat different cases differently or whether it imposes a
blanket policy without regard to the merits of an individual case, whether
affected groups are particularly vulnerable, and whether there are other less
restrictive ways to achieve the same aim...
1.187
The compulsory income management regime does not operate in a flexible
manner. Evidence indicates that the blanket application of the regime
disproportionately affects Indigenous Australians and the exemption process is
not conducive to allowing Indigenous Australians to apply for an exemption and
to succeed in that application. This indicates that the income management
regime may be a disproportionate measure and therefore incompatible with
Australia's international human rights law obligations.[115]
1.188
The new instrument places a 12-month limit on certain determinations
made by the secretary that result in vulnerable young people being automatically
subject to income management.
1.189
The statement of compatibility for the new instrument recognises that it
engages and limits the rights to social security and privacy, but concludes:
The Amendment Principles are compatible with human rights...The
Amendment Principles have been drafted to ensure that any limitation of freedom
of expenditure and human rights is reasonable, necessary and proportionate to
achieving the legitimate objective of reducing immediate hardship and
deprivation, encouraging socially responsible behaviour, and reducing the
likelihood that welfare payment recipients will be subject to harassment and
abuse in relation to their welfare payments.[116]
1.190
The statement of compatibility does not address how the instrument
engages and limits the right to equality and non-discrimination.
1.191
Restricting the time that a 'vulnerable welfare recipient determination'
can operate will allow a young person's suitability for income management to be
individually assessed after the 12-month period has expired.[117]
This is preferable to an open-ended determination with no time limit or
individual assessment. This will mean that the young person can no longer be
subject to automatic compulsory income management after 12 months, and they
must either volunteer for income management or be assessed by a social worker
if their payments are to continue being subject to income management under the
'vulnerable' measure.
1.192
The new instrument is therefore an improvement to continuing automatic
compulsory income management as it allows flexibility to treat different cases
differently and provides for consideration of a young person's individual
suitability for the program. However, the reasons why a 12-month period of
automatic compulsory income management is more appropriate than a shorter
period, or why a period of automatic compulsory income management prior to
individual assessment is necessary at all, are not explained in the statement
of compatibility.
1.193
Additionally, young people who are automatically subject to income management
because they have been recently released from jail or psychiatric confinement
will continue to be subject to open-ended determinations. This means that these
young people may continue to be subject to automatic compulsory income
management for an indefinite period, without an assessment of whether income
management is appropriate for their individual circumstances.
Committee comment
1.194
The committee notes that subjecting a person to compulsory income
management for any length of time engages and limits the right to equality and
non-discrimination, the right to social security and the right to privacy and
family.
1.195
The imposition of the limit on automatic compulsory income management
for 'vulnerable welfare payment recipients' is clearly preferable to the
preceding open-ended arrangements. Notwithstanding this, the preceding legal
analysis raises questions as to whether the 12-month limit on the automatic
imposition of compulsory income management is sufficient to ensure that
compulsory income management is a proportionate limitation of these rights.
1.196
The committee therefore seeks the advice of the Minister for Social
Services as to:
-
whether the limitation is a reasonable and proportionate measure
for the achievement of its stated objective;
-
why a shorter period of operation for a determination, or the
removal of the automatic trigger for vulnerable income management for young
people, is not more appropriate; and
-
why the 12-month limit on a determination does not apply to young
people who have recently been released from jail or psychiatric confinement.
Advice only
1.197
The committee draws the following bills and instruments to the attention
of the relevant minister or legislation proponent on an advice only basis. The
committee does not require a response to these comments.
Foreign Acquisitions Amendment (Agricultural Land) Bill 2010
Purpose
|
The bill proposes to amend the
Foreign Acquisitions and Takeovers Act 1975 in relation to foreign
acquisitions of agricultural land
|
Sponsor
|
Senators Xenophon and Milne
|
Introduced
|
Senate, 31 August 2016
|
Rights
|
Fair trial and fair hearing
(protection against self-incrimination); prohibition against arbitrary
detention (see Appendix 2)
|
Background
1.198
The bill was first introduced into the Senate on 24 November 2010, and was
restored to the Notice Paper by Senator Xenophon following the commencement of
the 45th Parliament.
No statement of compatibility
1.199
As noted above, the bill was first introduced in 2010, at which time
there was no requirement for bills to be accompanied by a statement of
compatibility with human rights. However, this has been a requirement since
January 2012, when the Human Rights (Parliamentary Scrutiny) Act 2011
(the Act) commenced.[118]
1.200
To fulfil its function under the Act of assessing legislation for
compatibility with human rights, the committee relies on statements of
compatibility as providing the legislation proponent's analysis of the
compatibility of the bill or instrument with Australia's international human
rights obligations.
1.201
The committee's expectations in relation to the preparation of
statements of compatibility are set out in its Guidance Note 1.
Committee comment
1.202
The committee draws to the attention of legislation proponents
the requirement for the preparation of statements of compatibility under the Human
Rights (Parliamentary Scrutiny) Act 2011, and the committee's expectations
in relation to the preparation of such statements as set out in Guidance
Note 1.
1.203
If the bill proceeds to further stages of debate, the committee may
request further information from the legislation proponent.
Australian Citizenship (Declared Terrorist Organisation—Islamic State) Declaration
2016 [F2016L00665]
Purpose
|
The instrument declares
Islamic State as a declared terrorist organisation for the purposes of
section 35AA of the Australian Citizenship Act 2007
|
|
Portfolio
|
Immigration and Border
Protection
|
Authorising Legislation
|
Australian Citizenship
Act 2007
|
Last day to disallow
|
21 November 2016
|
Rights
|
Freedom of movement;
private life; protection of the family; take part in public affairs; liberty;
obligations of non‑refoulement; equality and non-discrimination; fair
hearing and criminal process rights; prohibition against retrospective
criminal laws; prohibition against double punishment; rights of children (see
Appendix 2)
|
Background
1.204
Measures providing for the automatic loss of a dual citizen's Australian
citizenship were introduced through the Australian Citizenship Amendment
(Allegiance to Australia) Bill 2015 (the bill). The bill passed both Houses of
Parliament on 3 December 2015 and received Royal Assent on 11 December
2015 and now forms part of the Australian Citizenship Act 2007 (Citizenship
Act).
1.205
The committee considered and reported on the bill in August 2015 and
March 2016.[119]
That detailed human rights assessment raised specific concerns in relation to section
33AA of the bill (now section 33A of the Citizenship Act). Section 33A provides
that a dual Australian citizen will automatically cease to be an Australian
citizen if they engage in specified conduct with a specified intention.[120]
1.206
The previous human rights assessment of section 33A noted that measures
for the automatic loss of citizenship engage and limit a range of human rights,
including the right to freedom of movement; right to a private life; the right
to protection of the family; right to take part in public affairs; right to
liberty; obligations of non-refoulement; right to equality and
non-discrimination; right to a fair hearing and criminal process rights;
prohibition against retrospective criminal laws; prohibition against double
punishment; and rights of children.[121] The committee concluded
that insufficient evidence had been provided by the minister to demonstrate
that section 33A is compatible with these rights; and that the measure appears
to be incompatible with a number of these rights.[122]
1.207
For example, in relation to the right to a fair hearing, the process for
judicial review of a person's loss of citizenship is insufficient for a number
of reasons. Neither the bill nor the provisions of the Citizenship Act provide
for such review, rather, the Federal Court of Australia and High Court of
Australia's original jurisdiction is the only avenue available for judicial
review. It is unclear whether the onus of proof in such an application would
rest with the respondent or with the plaintiff (that is, with the person whose
citizenship has purportedly been lost). If the latter, the plaintiff may be
placed in the difficult position of having to prove that they had not engaged
in the conduct which led to the automatic loss of their citizenship. The
inherent difficulty in proving a negative for a plaintiff may seriously limit
that person's right to a fair hearing.
1.208
Second, the proceedings would be civil rather than criminal in nature
under Australian domestic law, operating on the civil standard of proof rather
than the criminal standard of beyond reasonable doubt, as well as lacking the
protections of a criminal proceeding. However, the conduct at issue would be
criminal conduct.
1.209
Third, the effect of the operation of sections 33AA and 35(1) of the
bill is that a person is considered to have lost their citizenship through
conduct. However, the evidence in relation to that alleged conduct may be in
fact contested, which means that an individual may be treated as a non-citizen
before having the opportunity to challenge or respond to allegations of
specified conduct. Accordingly, the committee concluded that the measure is
incompatible with the right to a fair hearing under international human rights
law.[123]
Declaration of a terrorist organisation
1.210
The Australian Citizenship (Declared Terrorist Organisation—Islamic
State) Declaration 2016 [F2016L00665] (the declaration) declares Islamic State
as a terrorist organisation for the purpose of section 35AA and section 33AA of
the Citizenship Act. As noted above, section 33AA provides that a dual
Australian citizen will automatically cease to be an Australian citizen if they
engage in specified conduct with a specified intention. The requisite intention
for the purposes of section 33AA is if the conduct is done with the intention
of advancing a political, religious or ideological cause, and coercing or
influencing a government or intimidating the public or a section of the public.
1.211
However, the declaration of a terrorist organisation by the declaration
has the effect that the element of intention does not need to be proven in
relation to a person. Instead, if at the time the person engaged in the
relevant conduct the person was a member of a declared terrorist organisation
(or acting on instruction of, or in cooperation with, a declared terrorist
organisation), the person is taken to have engaged in the conduct with the
requisite intention without further need of proof of intention.
Compatibility of the measure with human rights
1.212
By declaring an organisation to be a terrorist organisation under
section 35AA of the Citizenship Act, a person acting on instruction of, or
in cooperation with, the organisation or a member of the organisation is taken
to have engaged in the conduct with the requisite intention without the
requirement of further proof of intention. This expands the class of persons to
which the automatic cessation of citizenship may apply under section 33AA of
the Citizenship Act.
1.213
Accordingly, the declaration engages and limits the range of human
rights set out above at [1.206].
1.214
The statement of compatibility recognises that the declaration engages a
number of, though not all, these rights, but states that the declaration is
compatible with human rights because those limitations placed on human rights
are reasonable, necessary and proportionate in light of the declaration's
object and purpose, to protect the Australian community and Australia's
national security. The statement of compatibility addresses some of these
rights; however, it does not fully address the concerns previously raised in
the original assessment of the bill.
Committee comment
1.215
The committee notes that the original human rights assessment of the
automatic loss of citizenship by conduct now legislated for in section 33AA of
the Citizenship Act, including the requisite element of intention, was likely
to be incompatible with multiple human rights.
1.216
The effect of the instrument is to expand the class of persons to
which these provisions may apply. The instrument therefore raises the same
significant human rights concerns detailed in the original human rights
assessment of the bill which introduced the automatic loss of citizenship by
conduct. The statement of compatibility does not address a number of these
concerns, and the committee therefore draws to the attention of the minister
the requirements for the preparation of statements set out in the committee's Guidance
Note 1.
1.217
Noting the significant human rights concerns raised by the automatic
loss of citizenship by conduct, identified in the previous human rights
assessment of the measure, and the expansion of the class of persons to which
this automatic loss of citizenship applies under the declaration, the committee
draws the human rights implications of the declaration to the attention of the
Parliament.
Migration Act 1958 - Class of Persons Defined as Fast Track Applicants
2016/049 [F2016L00679]
Purpose
|
The instrument revokes
IMMI 16/007 [F2016L00455] and expands the class of asylum seekers who are
'fast track applicants' in respect of protection visas
|
Portfolio
|
Immigration and Border
Protection
|
Authorising Legislation
|
Migration Act 1958
|
Last day to disallow
|
Exempt from disallowance
|
Right(s)
|
Non-refoulement; fair
hearing; obligation to consider the best interests of the child (see Appendix
2)
|
Background
1.218
Fast-track assessment processes for certain visa classes were introduced
by the Migration and Maritime Powers Legislation Amendment (Resolving the
Asylum Legacy Caseload) Bill 2014 (the bill), which was reported on by the
committee in October 2014 and March 2016 and which passed both Houses of
Parliament on 5 December 2014.[124] These reports provided a
human rights assessment of fast-track processes in relation to asylum seekers
who arrived irregularly in Australia on or after 13 August 2012, to whom the
bill applied, while noting that the process could be expanded to other groups
of asylum seekers.
1.219
The human rights assessment of the bill noted that the fast-track
assessment process engages and limits a range of human rights, and contains
insufficient safeguards to sufficiently protect the right to a fair hearing and
the obligation to consider the best interests of the child.[125]
This is because under the fast-track assessment process asylum seekers no
longer have access to the Refugee Review Tribunal (RRT), but instead have
access to review of their refugee claims via a new body, the Immigration Assessment
Authority (IAA). IAA review is conducted 'on the papers' and is a limited form
of review - for example, there is no requirement to give the asylum seeker
information which was before the primary decision maker or for the asylum
seeker to comment or make representations on the material before the IAA. These
features, which affect the procedural fairness of the fast-track process, raise
concerns in relation to the right to a fair hearing and the obligation to
consider the best interests of the child.[126]
1.220
The human rights assessment of the bill also found that the limited
review under processes within the fast-track assessment process fell short of
the requirement for independent, effective and impartial review of
non-refoulement decisions and, accordingly, did not adequately protect the
obligation of non‑refoulement, which is absolute and can never be subject
to any limitation.[127]
Expansion of the fast-track assessment process
1.221
The Migration Act 1958 - Class of Persons Defined as Fast Track
Applicants 2016/049 [F2016L00679] (the instrument) expands the group of asylum
seekers to which the fast-track assessment process for a protection visa
applies. This process now applies to children born in Australia after 1 January
2014 whose parents are subject to the fast-track assessment process for a
protection visa, which means that these children will only have access to the
limited form of review provided through the IAA.
Compatibility of the measure with human rights
1.222
The application of the fast-track assessment process to children born in
Australia after 1 January 2014 engages and limits a range of human rights,
including:
-
the right to a fair hearing;
-
the obligation to consider the best interests of the child; and
-
the obligation of non-refoulement.[128]
1.223
As with the original human rights assessment of the bill (described
above at [1.218] to [1.220]), the limited merits review and other procedural
guarantees that apply to this group of children under the fast-track assessment
process does not adequately protect the right to a fair hearing and the
obligation to consider the best interests of the child, and falls short of the
minimum requirements of independent, effective and impartial review of
non-refoulement decisions.[129]
1.224
However, the statement of compatibility to the instrument does not
address the significant human rights concerns identified in the original human
rights assessment of the fast-track assessment process. The statement of
compatibility therefore does not meet the standards outlined in the committee's
Guidance Note 1.
Committee comment
1.225
The committee notes that the expansion of the fast-track assessment
process to include children born in Australia after 1 January 2014 whose
parents are subject to the fast-track assessment process for a protection visa
engages and limits the human rights of these children.
1.226
The committee also notes that the original human rights assessment of
the fast-track assessment process indicated that it may be incompatible with
the right to a fair hearing and the obligation to consider the best interests
of the child. That assessment also indicated that the limited form of review
conducted by the IAA is likely to be incompatible with Australia's obligation to
ensure independent, effective and impartial review (including merits review) of
non-refoulement decisions, which is absolute and may not be subject to any limitations.
1.227
Noting the concerns about the fast-track assessment process
identified in the human rights assessment of the bill, the committee considers
that the statement of compatibility for the instrument should have addressed
these matters in its assessment of the expansion of the fast-track assessment
process to a new group of children; and therefore draws to the attention of the
minister the requirements for the preparation of statements of compatibility
set out in the committee's Guidance Note 1.
1.228
Noting the significant human rights concerns raised by the fast-track
assessment process in relation to the right to a fair hearing, the obligation
to consider the best interests of the child and the obligation of
non-refoulement, and the expansion of that process to a new group of children
by the instrument, the committee draws the human rights implications of the
instrument to the attention of the Parliament.
Social Security (Administration) (Trial - Declinable Transactions)
Amendment Determination (No. 2) 2016 [F2016L01248]
Purpose
|
Amends the Social Security
(Administration) (Trial – Declinable Transactions) Determination 2016 to add
terminal identification codes as items in the table at Schedule 4, as well as
an additional schedule
|
Portfolio
|
Social Services
|
Authorising legislation
|
Social Security
(Administration) Act 1999
|
Last day to disallow:
|
15 sitting days after
tabling
|
Rights
|
Social security; private life;
equality and non-discrimination (see Appendix 2)
|
Background
1.229
The Social Security (Administration) (Trial - Declinable Transactions)
Amendment Determination (No. 2) 2016 [F2016L01248] (the determination)
implements measures that were previously considered by the committee in
relation to the Social Security Legislation Amendment (Debit Card Trial) Bill
2015 (Debit Card Bill).[130]
The Debit Card Bill passed both houses on 14 October 2015 and received Royal
Assent on 12 November 2015. It amended the Social
Security (Administration) Act 1999 to provide for a trial of cashless
welfare arrangements in prescribed locations. Persons on working age welfare
payments in the prescribed locations would have 80 percent of their income
support restricted, so that the restricted portion could not be used to
purchase alcoholic beverages or to conduct gambling. The trial arrangements are
currently operating in two trial locations of Ceduna and East Kimberley.
1.230
The committee undertook an evaluation of the human rights compatibility
of income management as part of its 2016 Review of Stronger Futures measures.[131]
As the human rights issues raised by the Debit Card Bill were similar to those
of income management, the committee finalised its consideration of the Debit
Card bill when it published its final report on the Stronger Futures measures. In
its review, the committee noted that the income management measures engage and
limit the right to equality and non-discrimination, the right to social
security and the right to privacy and family.[132]
Restrictions on how social security payments are spent
1.231
The debit card trial tests the concept of 'cashless welfare' by
quarantining payments to certain welfare recipients in a 'welfare restricted
bank account', which is accessed by a debit card and does not allow cash
withdrawals.
1.232
The restricted portion of a person's payment, generally 80 percent, may
not be used to purchase alcohol or for gambling. To achieve this, the Secretary
of the Department of Social Services determines, in a legislative instrument,
businesses in respect of which a transaction from a welfare restricted bank
account may be declined by a financial institution.
1.233
The determination expands the existing list of businesses in relation to
which debit card trial transactions may be declined. Currently, the prescribed
businesses include hotels; drinking places; betting and gambling places or
businesses; businesses which provide products that are representative of cash,
such as money orders; and businesses involved in alcohol manufacture or retail.
The determination adds further specific hotels and restaurants as well as a
supermarket to the list of businesses that may decline a transaction involving
a welfare restricted bank account. The determination also lists the purchase of
money orders through Australia Post as a 'declinable transaction'.
Compatibility of the measure with human rights
1.234
The statement of compatibility to the determination acknowledges that
the right to a private life, the right to an adequate standard of living, and
the right to equality and non-discrimination are engaged by the determination.
The statement of compatibility concludes:
A trial of cashless welfare arrangements will advance the
protection of human rights by ensuring that income support payments are spent
in the best interests of welfare payment recipients and their dependents. To
the extent that they may limit human rights, those limitations are reasonable,
necessary and proportionate to achieving the legitimate objectives of reducing
immediate hardship and deprivation, reducing violence and harm, encouraging
socially responsible behaviour, and reducing the likelihood that welfare
payment recipients will be subject to harassment and abuse in relation to their
welfare payments.[133]
1.235
Measures limiting human rights may be permissible providing certain
criteria are satisfied. To be capable of justifying a limit on human rights,
the measure must address a legitimate objective, be rationally connected to
that objective, and be a proportionate way to achieve that objective.
1.236
The committee has previously accepted that the objective of the income
management regime and the debit card trial is a legitimate objective for the
purposes of international human rights law.[134]
When considering the Debit Card Bill, the previous human rights assessment
noted the similarities between the debit card trial with income management. The
human rights assessment reiterated concerns as to whether income management has
been demonstrated to be rationally connected (that is, effective in achieving)
its stated objective.[135]
However, the human rights analysis noted advice from the minister that the
debit card trial is intended to be different from income management. In
considering the proportionality of the measures in the Debit Card Bill, the
previous human rights assessment also noted the following safeguards
incorporated into the trial, which are highlighted in the statement of
compatibility to the determination:
First, the roll-out of the Trial in trial areas has been
subject to an extensive consultation process.
The second safeguard is the power of community bodies to vary
the percentage of funds that a person has restricted, subject to that person's
agreement (as provided for under section 124PK of the Act). This will provide
an ongoing mechanism to ensure that there is flexibility to treat individual
cases differently.
A third safeguard lies in the Trial being subject to an
independent, comprehensive evaluation that will consider the impacts of
limiting the amount of welfare funds that may contribute to community-level
harm. The evaluation will use both quantitative and qualitative information to
explore perceived and measurable social changes in trial communities.
Finally, subsection 124PF(1) of the Act specifies that the
Trial will commence on 1 February 2016 and end on 30 June 2018. The policy
intention is that the Trial will only run for 12 months in each trial area. The
clause acts as an appropriate and effective safeguard as Parliament must amend
the legislation to continue the Trial beyond 2018.[136]
1.237
While these safeguards improve the proportionality of the measure, there
are still human rights concerns in relation to the compulsory quarantining of a
person's welfare payments and the restriction of a person's agency and ability
to spend their welfare payments at businesses including supermarkets.
Committee comment
1.238
The effect of the determination is to expand the range of transactions
from welfare restricted bank accounts which may be declined. The committee
observes that the preceding legal analysis shows that the determination raises
the same human rights concerns detailed in the original human rights assessment
of the bill which introduced the debit card trial arrangements.
1.239
Noting the human rights concerns raised by the debit card trial
and income management, identified in the previous human rights assessment of
the measure, and in the 2016 Review of Stronger Futures measures, and
the expansion of the list of businesses which may decline an affected welfare
recipient's transactions, the committee draws the human rights implications of
the determination to the attention of the Parliament.
Reintroduced or related measures
previously assessed
1.240
The committee refers to its previous comments on the following measures
which have been reintroduced. The committee does not require a response to
these comments.
Building and Construction Industry (Improving Productivity) Bill 2013
Building and Construction Industry (Consequential and Transitional
Provisions) Bill 2013
Purpose
|
The bills propose to
re-establish the Australian Building and Construction Commission (ABCC) and
reintroduce building industry specific laws
|
Portfolio
|
Employment
|
Introduced
|
House of Representatives,
31 August 2016
|
Rights
|
Freedom of association; form
and join trade unions; freedom of assembly; freedom of expression; privacy
(see Appendix 2)
|
Background
1.241
The committee previously examined the bills in its Second Report of
the 44th Parliament, Tenth Report of the 44th
Parliament, Fourteenth Report of the 44th Parliament and Thirty-fourth
Report of the 44th Parliament (23 February 2016).[137]
1.242
The bills were reintroduced to the Senate on 31 August 2016, following
the commencement of the 45th Parliament.
1.243
The previous human rights assessment of the bills concluded that the
proposed prohibition on picketing and restrictions on industrial action was
incompatible with the right to freedom of association and the right to form and
join trade unions. It also concluded that the prohibition on picketing was likely
to be incompatible with the right to freedom of assembly and the right to
freedom of expression.
1.244
That human rights assessment also concluded that the proposed disclosure
of information provisions in sections 61(7) and 105 of the Building and
Construction Industry (Improving Productivity) Bill 2013 were incompatible with
the right to privacy.[138]
Committee comment
1.245
The committee notes that the previous human rights assessment of
the bills concluded that the proposed prohibition on picketing and restrictions
on industrial action, as well as proposed disclosure of information provisions,
were incompatible with the right to freedom of association and the right to
form and join trade unions, the right to freedom of assembly, the right to
freedom of expression and the right to privacy.
1.246
Noting the concerns raised in the previous human rights
assessment of the bills, the committee draws the human rights implications of
the bills to the attention of the Parliament.
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016
Purpose
|
The bill proposes to amend
a number of Acts to make changes to counter-terrorism legislation including
in relation to the control order regime, preventative detention order regime,
and special intelligence operations
|
Portfolio
|
Attorney-General
|
Introduced
|
Senate, 15 September 2016
|
Rights
|
Equality and
non-discrimination; liberty; freedom of movement; fair trial and the
presumption of innocence; fair hearing; privacy; freedom of expression;
freedom of association; protection of the family; prohibition on torture and
cruel, inhuman or degrading treatment; work; social security; adequate
standard of living; children's rights (see Appendix 2)
|
Background
1.247
The committee previously examined the Counter-Terrorism Legislation
Amendment Bill (No. 1) 2015 (2015 bill) in its Thirty-second Report of the
44th Parliament and Thirty-sixth Report of the 44th
Parliament.[139]
1.248
The bill was reintroduced as the Counter-Terrorism Legislation Amendment
Bill (No. 1) 2016 (2016 bill) following the commencement of the 45th
Parliament, with a number of further changes implementing recommendations from
the Parliamentary Joint Committee on Intelligence and Security (PJCIS) and the
Independent National Security Legislation Monitor (INSLM).
1.249
The bill contains 18 schedules. The analysis below relates to seven of
those schedules focusing on the most serious human rights issues. Accordingly,
the committee has concluded that 11 of the schedules in the bill do not require
further examination.[140]
National security and human rights
1.250
In the human rights analysis of previous national security legislation
the committee noted its recognition of the importance of ensuring that national
security and law enforcement agencies have the necessary powers to protect the
security of all Australians.[141]
The committee also noted that while legislative responses to issues of national
security are generally likely to engage a range of human rights, human rights
principles should not be understood as inherently opposed to national security
objectives or outcomes. Rather, international human rights law allows for the
balancing of human rights considerations with responses to national security
concerns.
Schedule 2—Extending control orders to
14 and 15 year olds
1.251
The 2016 bill proposes to amend the control orders regime
under Division 104 of the Criminal
Code Act 1995 (Criminal Code) to allow for control orders to be imposed
on children aged 14 or 15 years of age. Currently, control orders may only
be imposed on adults and children aged 16 or 17 years of age. As noted above,
the committee considered this measure in its examination of the 2015 bill.
1.252
The committee has previously considered the control orders regime as
part of its consideration of the Counter-Terrorism Legislation Amendment
(Foreign Fighters) Bill 2014;[142]
and the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014.[143]
The 2016 bill's expansion of the control orders regime
to children aged 14 and 15 years of age raises the threshold question of
whether the existing control orders regime is compatible with human rights.
1.253
The control orders
regime grants the courts power to
impose a control
order on a person at the request
of the Australian Federal Police (AFP), with the Attorney‑General's consent.
The terms of a control
order may impose a number
of obligations, prohibitions and restrictions on the person
subject to the order.
These include:
-
requiring a person
to stay in a certain
place at certain
times;
-
preventing a person from going to certain
places;
-
preventing a person from talking to or associating with certain
people;
-
preventing a person from leaving Australia;
-
requiring a person
to wear a tracking
device;
-
prohibiting access or use of specified
types of telecommunications, including the internet and telephones;
-
preventing a person from possessing or using specified articles
or substances; and
-
preventing a person from
carrying out specified activities, including in relation to their work or
occupation.
1.254
The steps for the issue
of a control order are:
-
a senior AFP member must obtain the Attorney-General's
written consent to seek a control order on prescribed grounds;
-
once consent is granted, the AFP member
must seek an interim
control order from an
issuing court, which must be
satisfied on the balance of
probabilities:
-
that making the order would substantially assist in preventing a
terrorist act; or
-
that the person has provided training to, received training from or
participated in training with a listed terrorist organisation; or
-
that the person has engaged in a hostile activity in a foreign country;
or
- that the person has been convicted in Australia of an offence relating
to terrorism, a terrorist organisation or a terrorist act; or
-
that the person has been convicted in a foreign country for an
equivalent offence; or
-
that making the order would substantially assist in preventing the
provision of support for or the facilitation of a terrorist act; or
-
that the person has provided support for or otherwise facilitated the
engagement in a hostile activity in a foreign country; and
-
currently, the court must also be satisfied on the balance of
probabilities that each of the obligations, prohibitions and restrictions to be
imposed on the person by the order is reasonably necessary, and reasonably
appropriate and adapted, for the purpose of:
-
protecting the public from a terrorist act; or
-
preventing the provision of support for or the facilitation of a
terrorist act; or
-
preventing the provision of support for or the facilitation of the
engagement in a hostile activity in a foreign country;[144]
and
-
the AFP must subsequently seek the court's confirmation of the order, with a confirmed order able to last up to 12 months.
1.255
The changes in the 2016 bill would amend this legislative test, to
provide that in determining whether each of the obligations, prohibitions and
restrictions to be imposed on the person by the order is reasonably necessary,
and reasonably appropriate and adapted, the court must take into account:
- as a paramount consideration in all cases the objects of:
-
protecting the public from a terrorist act;
-
preventing the provision of support for or the facilitation of a
terrorist act;
-
preventing the provision of support for or the facilitation of the
engagement in a hostile activity in a foreign country;
-
as a primary consideration in the case where the person is 14 to 17
years of age—the best interests of the person; and
-
as an additional consideration in all cases—the impact of the
obligation, prohibition or restriction on the person’s circumstances (including
the person’s financial and personal circumstances).
Compatibility of the measure with human rights
1.256
The control orders regime, and the amendments to that regime proposed by
the bill, engage and limit a number of human rights, including:
-
right to equality and non-discrimination;
-
right to liberty;
-
right to freedom of movement;
-
right to a fair trial and the presumption of innocence;
-
right to privacy;
-
right to freedom of expression;
-
right to freedom of association;
-
right to the protection of the family;
-
prohibition on torture and cruel, inhuman or degrading treatment;
-
right to work; and
-
right to social security and an adequate standard of living.
1.257
The proposed expansion of the control orders regime to children aged 14
and 15 years of age also engages the obligation to consider the best interests
of the child and a range of rights set out in the Convention on the Rights
of the Child.
Threshold assessment of
control orders—legitimate objective
1.258
The statement of compatibility for the 2016 bill focuses primarily on
the proposed change to the age threshold for control orders rather than dealing
more broadly with the human rights implications of the control orders regime. The
control order regime was legislated prior to the establishment of the committee
so the scheme was not subject to a human rights compatibility assessment by the
Attorney-General in accordance with the terms of the Human Rights
(Parliamentary Scrutiny) Act 2011.[145]
Threshold assessment of control orders—rational
connection to a legitimate objective
1.259
A measure that limits human rights must be rationally connected to a
legitimate objective, that is, it must be likely to achieve this objective.
1.260
The committee has previously considered that the stated objective of the control orders regime,
that is, 'providing law enforcement agencies with the necessary
tools to respond
proactively to the evolving nature
of the threat presented
by those wishing to undertake terrorist acts in Australia', is a legitimate objective for
the purposes of international human rights law.[146]
1.261
However, as noted in the previous human rights assessment of the
measure, there is doubt as to whether control orders are rationally connected
to that objective as they may not necessarily be the most effective tool to
prevent terrorist acts noting the availability of regular criminal justice
processes.[147]
Threshold assessment of control orders—proportionality
1.262
The previous human rights assessment of the measure noted that in terms
of proportionality there may be questions as to whether control orders are the
least rights restrictive response to terrorist threats, and whether control
orders contain sufficient safeguards to appropriately protect Australia's human
rights obligations.[148]
1.263
For example, amendments introduced by the Counter-Terrorism Legislation
Amendment Bill (No. 1) 2014 allow control orders to be sought in circumstances
where there is not necessarily an imminent threat to personal safety.[149]
The protection from imminent threats has been a critical rationale relied on
for the introduction and use of control orders rather than ordinary criminal
processes. In the absence of an imminent threat it is difficult to justify as
proportionate the imposition of a significant limitation on personal liberty
without criminal charge or conviction.
1.264
In addition, the issuing criteria for a control order set out in section
104.4 of the Criminal Code requires that each proposed condition of a control
order must be reasonably necessary, and reasonably appropriate and adapted, to
the purpose of protecting the public from the threat of a terrorist act.
However, there is no requirement that the conditions be the least rights
restrictive measures to protect the public.
1.265
As noted in the previous human rights assessment of the measure a least
rights restrictive approach would not mean that public protection would become
a secondary consideration in the issuance of a control order. It would simply
require a decision-maker to take into account any possible less invasive means
of achieving public protection. In the absence of such requirements it is difficult
to characterise the control orders regime as the least rights restrictive
approach for protecting national security, and to assess the proposed measures
as a proportionate way to achieve their stated objective.
1.266
In light of these concerns and noting that the control orders regime has
not been subject to a foundational assessment of human rights, the committee previously
recommended that a statement of compatibility be prepared for the control orders
regime, that sets out in detail how the coercive powers provided for by control
orders impose only a necessary and proportionate limitation on human rights
having regard to the availability and efficacy of existing ordinary criminal
just processes (e.g. arrest, charge and remand).[150]
Committee comment
1.267
The control orders regime engages and limits a range of human rights.
As noted above, the control orders regime has not been subject to a
foundational assessment of human rights nor has a standalone statement of
compatibility been provided for the control orders regime.
1.268
The committee notes that it previously recommended that a statement
of compatibility be prepared for the control orders regime that sets out in
detail how the coercive powers provided for by control orders impose only a
necessary and proportionate limitation on human rights having regard to the
availability and efficacy of existing ordinary criminal just processes (e.g.
arrest, charge and remand).
1.269
Noting the concerns raised in the previous human rights
assessment relating to the control orders regime, the committee draws the human
rights implications of the bill to the attention of the Parliament.
Applying control orders to 14 and 15 year olds—legitimate objective
1.270
Turning to the specific amendments in Schedule 2, which would allow the
AFP to seek a control order for children aged 14 or 15 years of age, the
statement of compatibility explains the legitimate objective of these measures
as:
The vulnerability of young people to
violent extremism demands proportionate, targeted measures to divert them from
extremist behaviour. It is appropriate and important that all possible
measures are available to avoid a young person engaging with the formal
criminal justice system and to mitigate the threat posed by violent extremism.
Consequently, the ability to use control orders to influence a person’s
movements and associations, thereby reducing the risk of future terrorist
activity, addresses a substantial concern and the regime is aimed and targeted
at achieving a legitimate objective.[151]
1.271
It can be accepted that preventing the radicalisation of young people,
and preventing the engagement of radicalised children in violent acts is a
legitimate objective. However, the use of control orders against children
involves the imposition of limitations on basic freedoms, the breach of which
is subject to criminal sanctions. There are a wide range of other measures that
can be used in relation to children who are at risk of dangerous behaviours,
and who are risk of radicalisation. It is concerning that control orders are being
proposed in the statement of compatibility as a form of behaviour management or
supervision, which they are not. Indeed, the consequences that attend the
breach of control orders, that is, the criminal sanctions imposed on activities
that are otherwise legal, create their own risk that a child subject to a
control order will become engaged in the criminal justice system.
1.272
Moreover, to be capable of justifying a proposed limitation of human
rights, a legislation proponent must provide a reasoned and evidence-based
explanation as to how the measures address a pressing or substantial concern. This
statement does not explain in detail how the current criminal law does not
adequately provide for the protection against terrorist acts by 14 and 15 year
olds.
Applying control orders to 14 and 15 year olds—rational connection
1.273
In addition, as outlined above, it is not clear from the statement of
compatibility how the measures are effective to achieve either the objective of
protection against terrorist acts or the objective of avoiding having young
people engage with the formal criminal justice system.
Applying control orders to 14 and 15 year olds—proportionality and
safeguards
1.274
In terms of proportionality, the previous human rights assessment of the
measure noted that the 2015 bill makes a number of significant legislative
changes to control orders applying to children aged 14 to 17 years of age. The
previous assessment considered that many of these provisions provided
safeguards in the regime as it applied to children, compared to the control
orders regime that applied to adults, but could not conclude that these
safeguards were adequate to ensure that the controls orders regime would impose
only proportionate limitations on human rights.[152]
Applying control orders to 14 and 15 year olds—proportionality and best
interests of the child considerations
1.275
The previous human rights assessment of the 2015 bill contained detailed
consideration of whether the measure was consistent with Australia's
obligations to consider the best interests of the child as a primary
consideration.[153] The concerns raised in that assessment
included that neither the AFP nor the Attorney-General were required to
consider the best interests of the child in deciding to make an application for
a control order. Further, the court was not required to consider the child's
best interests when initially considering whether, on the balance of
probabilities, a control order was necessary in accordance with the legislative
criteria. Under the 2015 bill the court was explicitly required to focus on
whether the terms were necessary, appropriate and adapted for the purposes of
protecting the public from a range of potential acts related to terrorism. It
was only as part of this process that the court was required to take into
account the best interests of the child.
1.276
The previous human rights assessment of the 2015 bill noted that while
the court was required to take the best interests of the child into account,
the court was not required to be satisfied that the terms of the control order were
in the best interests of the child, nor that the control order terms were the
least rights restrictive terms that would protect the public. In taking the
child's interests into account, the court was not required to weigh those interests
up as a primary consideration.[154]
1.277
The 2016 bill revises this proposal in accordance with a recommendation
by the PJCIS,[155]
and instead provides that in determining whether each of the obligations,
prohibitions and restrictions to be imposed on the person by the order is
reasonably necessary, and reasonably appropriate and adapted, the court must
take into account:
- as a paramount consideration in all cases the objects of:
-
protecting the public from a terrorist act;
-
preventing the provision of support for or the facilitation of a
terrorist act;
-
preventing the provision of support for or the facilitation of the
engagement in a hostile activity in a foreign country;
- as a primary consideration in the case where the person is 14 to 17
years of age—the best interests of the person; and
-
as an additional consideration in all cases—the impact of the
obligation, prohibition or restriction on the person's circumstances (including
the person's financial and personal circumstances).
1.278
This new proposed formulation would allow the court greater scope to
also ensure that the terms of the control order are in the best interests of
the child. It makes clear that the court is to consider both the best interests
of the child as a primary consideration and the safety and security of the
community as a paramount consideration. As such, the revised formulation would
improve the proportionality of the measure.
1.279
However, there remains no requirement that making a control order be the
least rights restrictive way of protecting the public or preventing the
provision of the relevant types of support or facilitation. Further, there
remains no requirement that the best interests of the child be considered by
the AFP in making an application for a control order or the Attorney-General in
consenting to an application for a control order in respect to a child under 18
years of age. As such there are still serious concerns about whether the
application of a control order would be proportionate in the case of individual
children. If a measure is not proportionate, then it will not be a permissible
limit on human rights. That is, the proposed amendments may enable the
imposition of control orders in a manner incompatible with human rights.
Committee comment
1.280
The committee notes that proposed amendment to lower the age at which
a person may be subject to a control order to 14 years engages and limits
multiple human rights.
1.281
The committee observes that the previous human rights assessment of
the 2015 bill considered that the proposed amendment was inconsistent with the
obligation to consider the best interests of the child as a primary
consideration and may enable the imposition of control orders in a manner incompatible
with human rights.
1.282
Revised amendments address some of these concerns by providing that a
court must, in determining whether each of the proposed obligations,
prohibitions and restrictions under the control order are necessary and
appropriate, consider the best interests of the child as a primary
consideration and the safety and security of the community as a paramount
consideration.
1.283
However, the preceding legal analysis states that this revision does
not address all the concerns in relation to the human rights compatibility of
the proposed amendments. Noting the concerns raised above, the committee draws
the human rights implications of the bill to the attention of the Parliament.
Schedule 2—Young person's right to legal representation in control order
proceedings
1.284
New subsection 104.28(4) will require an issuing court to appoint a
lawyer for a young person aged 14 to 17 years in relation to control order
proceedings, where the young person does not have legal representation, except
in the limited circumstances.[156]
Compatibility of the measure with the right of the child to be heard in
judicial and administrative proceedings
1.285
Item 46 of Schedule 1 to the 2015 bill proposed to insert a new section
104.28AA in the Criminal Code to provide for an issuing court to appoint a
lawyer as an advocate to act on behalf of a child between the ages of 14 and 17
who has been made subject to an interim control order. The court-appointed
advocate would not have acted as the child's legal representative and, as such,
was not obliged to act on the instructions or wishes of the child.
1.286
The previous human rights assessment of the 2015 bill considered that
the introduction of court appointed advocates for children engaged and limited
the right of the child to be heard in judicial and administrative proceedings.
This was on the basis that the advocate was not required to take into account
the wishes of the child or act on their instructions during any court
proceedings, and was able to act independently and make recommendations as to a
specific course of action which may have been explicitly in opposition to the
wishes of the child.
1.287
The committee previously expressed in principle support for the
recommendations of the PJCIS that the bill be amended to expressly provide that
a young person has the right to legal representation in control order regimes
and that the bill be amended to remove the role of the court-appointed
advocate.
1.288
Consistent with the PJCIS recommendation, the 2016 bill removes the role
of court-appointed advocates and provides that a young person in proceedings
relating to a control order will have access to legal representation. As such,
proposed section 104.28(4) is compatible with the right of the child to be
heard in judicial and administrative proceedings and may promote that right.
Committee comment
1.289
The previous human rights assessment of the 2015 bill considered that
the introduction of court appointed advocates for children engaged and limited
the right of the child to be heard in judicial and administrative proceedings.
1.290
The committee previously expressed in principle support for the
recommendations of the PJCIS that the bill be amended to expressly provide that
young person has the right to legal representation in control order regimes and
that the bill be amended to remove the role of the court-appointed advocate.
1.291
The 2016 bill removes the role of court-appointed advocates and
provides that a young person in proceedings relating to a control order will
have access to legal representation. The committee considers that this
provision of legal representation is compatible with the right of the child to
be heard in judicial and administrative proceedings and may promote that right.
Schedule 5—Preventative detention orders
1.292
Currently, a preventative detention order (PDO) can be applied for if it
is suspected, on reasonable grounds, that a person will engage in a terrorist
act, possesses something in connection with preparing for or engaging in a
terrorist act, or has done an act in preparation for planning a terrorist act.[157]
The terrorist act must be one that is imminent and expected to occur, in any
event, at some time in the next 14 days.[158]
1.293
Schedule 5 of the bill seeks to change the current definition of a
terrorist act as being one that is imminent and expected to occur in the next
14 days, to one that 'is capable of being carried out, and could occur, within
the next 14 days'.
Compatibility of the measure with the right to liberty
1.294
As PDOs allow for the detention of a person for up to 48 hours, and the
amendments would broaden the basis on which a PDO can be made, the bill engages
and limits the right to liberty.
1.295
The previous human rights assessment of the bill considered substantially
similar amendments in the previous bill. The main change is that the amendments
under consideration in this bill remove reference to the term 'imminent'
terrorist act. The definition of what is the relevant terrorist act, however,
remains the same as that sought by the previous bill (namely that it be capable
of being carried out, and could occur, within the next 14 days). The EM explains
that this change is based on a recommendation from the PJCIS that the word
'imminent' be removed so as, in the words of the EM, 'to not stretch the
meaning of the term 'imminent' beyond its ordinary usage'.[159]
1.296
The statement of compatibility states that the change to the imminent
test engages but does 'not impact upon the right' to liberty.[160]
However, the proposed amendments do impact the right to liberty. The amendments
would lower the threshold for the imposition of preventative detention pursuant
to a PDO, so that instead of the basis for the PDO being an event 'expected to
occur' within the next 14 days, the event need only be 'capable of being
carried out' and be an event that 'could occur' within the next 14 days.
1.297
PDOs are administrative orders, made, in the first instance, by a senior
AFP member, which authorise an individual to be detained without charge, and
without a necessary intention to charge the subject with any offence. PDOs
raise human rights concerns as they permit a person's detention by the
executive without charge or arrest. The statement of compatibility states that
the right to freedom from arbitrary detention is safeguarded by the existing
provisions in the PDO regime.[161]
However, the PDO regime was legislated prior to the establishment of the
committee so the scheme has not previously been subject to a human rights
compatibility assessment in accordance with the terms of the Human Rights
(Parliamentary Scrutiny) Act 2011.[162]
Since the committee's establishment there have been a number of amendments to
the PDO regime and statements of compatibility have been prepared for those
individual amendments but not for the regime as a whole. It is imperative that
this regime be fully justified in order to understand whether the PDO regime
meets Australia's international human rights obligations not to subject
individuals to arbitrary detention.
1.298
The statement of compatibility states that PDOs are only used 'in the
most exceptional and extreme circumstances, where rapid preventative detention
is reasonably necessary for preventing a terrorist act occurring, even where
the timing of that terrorist act remains uncertain'.[163]
The current amendments are intended to capture situations 'to deal with
terrorist acts that are not planned to occur on a particular date, even where
the preparations for that terrorist act may be in the final stages or
complete'.[164]
The example given is where a terrorist is prepared and waiting for a signal or
instruction to carry out their act, but where the AFP is not able to identify when
that signal or instruction will be sent.[165]
1.299
However, as the previous human rights assessment noted, in such
situations it is unclear why that individual cannot be charged with the offence
of planning or preparing for a terrorist act.[166]
Terrorist laws are unique in Australia as they criminalise conduct that is so
early in the preparation of an offence that it would not ordinarily meet the
definition of an offence. As previously noted, as PDOs authorise an individual
to be detained without arrest or charge, for such a regime to be justified for
the purposes of international human rights law it must be in circumstances
where there is a real and imminent threat to life where there is no alternative
available under the criminal law to protect the community. It is not consistent
with human rights law that powers of this nature be exercised if there is not a
high risk of a terrorist attack.
1.300
The previous human rights assessment noted that as the amendments sought
in the previous bill could allow a PDO to be sought even where there is not an
imminent threat to life, it was not clear that the amendments were rationally
connected to the legitimate objective of protecting national security, nor did
the amendments impose a proportionate limitation on the right to liberty in the
pursuit of national security.
Committee comment
1.301
As noted above, the preventative detention order (PDO) regime has not
been subject to a foundational assessment of human rights nor has a standalone
statement of compatibility been provided for the PDO regime.
1.302
The committee notes that it previously recommended that a statement
of compatibility be prepared for the PDO regime, setting out in detail how the
necessarily coercive powers impose only a necessary and proportionate
limitation on human rights having regard to the availability and efficacy of
existing ordinary criminal processes (e.g. arrest and charge).
1.303
The committee notes that the previous human rights assessment of the
amendments to the imminence test for PDOs concluded that those amendments lower
the threshold of when an attack may be considered to be imminent and may be
incompatible with the right to liberty.
1.304
Noting the concerns raised above, the committee draws the human
rights implications of the bill to the attention of the Parliament.
Schedule 8, 9, 10—Monitoring of compliance with control orders etc.
1.305
Schedules 8, 9 and 10 introduce a number of measures in relation to the
ability of law enforcement agencies to monitor compliance with control orders.
Schedule 8 would establish a 'monitoring warrant' regime to apply to
individuals subject to a control order, and which would allow a law enforcement
officer to enter, by consent or by monitoring warrant, premises connected to a
person subject to a control order. A person subject to a control order may
also, by consent or monitoring warrant, be subject to a search of their person
including a frisk search. Schedule 9 would allow law enforcement agencies to
obtain warrants for the purposes of monitoring compliance with a control order,
specifically in relation to telecommunications interception. Schedule 10 would
allow law enforcement agencies to obtain warrants to monitor a person who is
subject to a control order to detect breaches of the order.
Compatibility of the measure with the right to privacy
1.306
The previous human rights assessment of the measures considered that the
power to search premises, intercept telecommunications and install surveillance
devices for the purposes of monitoring compliance with a control order in the
absence of any evidence (or suspicion) that the order is not being complied
with and/or any specific intelligence around planned terrorist activities
involved serious intrusions into a person's private life. Accordingly, these
measures engaged and limited the right to privacy.
1.307
While the statement of compatibility to the 2015 bill set out a
legitimate objective, and a rational connection between the limitation and the
legitimate objective, the committee retained concerns about the proportionality
of the measures. The committee concluded in its Thirty-sixth Report of the
44th Parliament that the measures may be incompatible with the
right to privacy.[167]
1.308
The previous analysis also noted that a number of recommendations made
by the PJCIS would provide important safeguards if implemented.[168]
These recommendations were that:
-
an issuing officer for a monitoring warrant have regard to
whether the exercise of their powers under the warrant constitutes the least
interference with the liberty or privacy of any person that is necessary in all
the circumstances;[169]
-
notification is required by the AFP to persons required to
produce information of their right to claim privilege against
self-incrimination and legal professional privilege;[170]
-
the AFP notify the Commonwealth Ombudsman within six months
following the exercise of monitoring powers, retain all relevant records in
relation to the use of monitoring warrants or the exercise of monitoring
powers, and notify the Commonwealth Ombudsman as soon as practicable of any
breaches of the monitoring powers requirements;[171]
-
the Commonwealth Ombudsman report to the Attorney-General
annually regarding the AFP's compliance with the requirements of the monitoring
powers regime;[172]
-
the Attorney-General be required to report annually to the
Parliament on the AFP's use of the monitoring powers regime, including the
number of monitoring warrants issued, the number of instances on which powers
incidental to the issue of a monitoring warrant were exercised, and particulars
of any breaches self-reported to the Commonwealth Ombudsman or any complaints
made or referred to the Commonwealth Ombudsman relating to the exercise of
monitoring powers;[173]
and
-
for a telecommunications interception control order warrant, the issuing
officer is to have regard to whether the interception of telecommunications
under the warrant constitutes the least interference with the liberty or
privacy of any person that is necessary in all the circumstances.[174]
1.309
These recommendations have largely been incorporated into the
reintroduced bill. However, while the final recommendation stipulates that the issuing
officer is to 'have regard to whether the interception... constitutes the least
interference with the liberty or privacy... that is necessary in all the
circumstances' (emphasis added), this final caveat was not included in the
2016 bill. This consideration of the necessity of the interception is an
important safeguard for the measure.
Committee comment
1.310
The committee notes that the previous human rights assessment of the
monitoring warrants concluded that they are incompatible with the right to
privacy (that is, the warrants were not a proportional limit on the right to
privacy).
1.311
The bill contains a number of safeguards in respect of the proposed monitoring
warrants, as recommended by the PJCIS. This will assist to address some but not
all of the concerns regarding the proportionality of the proposed warrants. The
committee recommends that in order to improve the compatibility of the measure,
proposed paragraph 46(5)(f) to the Telecommunications (Interception and
Access) Act 1979 be amended to include the specific requirement that the
issuing officer is to have regard to whether the interception of
telecommunications under the warrant constitutes the least interference with
the liberty or privacy of any person that is necessary in all the
circumstances.
1.312
Noting the concerns raised above, the committee draws the human
rights implications of the bill to the attention of the parliament.
Schedule 15—Protecting national security information in control order
proceedings
1.313
Schedule 15 of the 2015 bill proposed amendments to the National
Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act) to
allow a court to make orders restricting or preventing the disclosure of
information in control order proceedings. The NSI Act currently allows a court
to prevent the disclosure of information in federal criminal and civil
proceedings where it would be likely to prejudice national security (except
where this would seriously interfere with the administration of justice). The
new types of orders provided for in Schedule 15 would have restricted or
prevented the disclosure of information in control order proceedings such that:
-
the subject of the control order and their legal representative might
be provided with a redacted or summarised form of national security information
(although the court may consider all of the information contained in the
original source document);[175]
-
the subject of the control order and their legal representative might
not be provided with any information contained in the original source document
(although the court may consider all of that information);[176] or
-
the subject of the control order and their legal representative might
not be provided with evidence from a witness in the proceedings (although the
court may consider all of the information provided by the witness).[177]
Compatibility of the measure with the right to a fair hearing
1.314
The previous examination of the bill considered that the non-disclosure
of information to the subjects of control orders and their legal
representatives engaged and limited the right to a fair hearing and
particularly the principle of equality of arms.[178]
The previous examination also noted that the PJCIS had made the following
recommendations in relation to the Schedule 15 measures in the 2015 bill:
-
the minimum standard of information disclosure in a control order
proceeding be amended to allow the subject of the control order proceeding to be
provided with sufficient information about the allegations against him or her
to enable effective instructions to be given in relation to those allegations;
-
a system of special advocates be introduced to represent the
interests of persons subject to control order proceedings where the subject and
their legal representative have been excluded; and
-
the Attorney-General be required to annually report on the number
of orders granted by the court and the related control order proceedings.[179]
1.315
Subject to the special advocates regime being in place before other
amendments in Schedule 15 came into force, the previous examination considered
that amendments implementing these recommendations would address the concerns
as to the compatibility of the schedule with the right to a fair trial.[180]
1.316
Schedule 15 has been updated in the 2016 bill to implement the above
PJCIS recommendations. However, the amendments putting in place the special
advocates regime will commence up to 12 months after the other amendments in
the schedule.[181]
The EM states that the delayed commencement is to ensure that sufficient time
is provided to make appropriate regulations relating to the special advocate
scheme, and to ensure sufficient special advocates are available to participate
in the scheme. The EM also notes that the court may exercise inherent powers to
appoint a special advocate for a person subject to a control order proceeding
on an ad hoc basis.[182]
1.317
However, despite the ability to appoint special advocates on an ad hoc
basis, the delayed commencement of the special advocates regime may mean that
the court is empowered to make orders that may unjustifiably limit the right to
a fair hearing during the period before the special advocates regime commences.
Committee comment
1.318
The committee notes that the previous human rights assessment of
Schedule 15 considered that the measures engage and limit the right to a fair
trial and the right to a fair hearing.
1.319
The committee further notes that the previous human rights
assessment of Schedule 15 in the 2015 bill considered that the implementation
of the relevant PJCIS recommendations would address concerns in relation to the
human rights compatibility of the measures contained in Schedule 15. However,
this view was premised on the special advocates regime being established prior
to the commencement of the other measures in the schedule.
1.320
Schedule 15 has been updated in the 2016 bill to implement the
relevant PJCIS recommendations. However, noting that the 2016 bill currently
provides for a delay in commencement of the special advocates regime of up to
12 months after the commencement of the other amendments in Schedule 15, the
committee recommends that the bill be amended to provide for the commencement
of the special advocates regime prior to other amendments in Schedule 15
entering into effect.
Schedule 18—Special intelligence operations
1.321
Schedule 18 is a new schedule, amending the special intelligence
operations (SIO) regime in the Australian Security Intelligence Organisation
Act 1979 (ASIO Act) to implement recommendations made by the INSLM in his February
2016 Report on the impact on journalists of section 35P of the ASIO Act
(INSLM report).[183]
1.322
The current SIO regime includes two offences in relation to the
unauthorised disclosure of information relating to a SIO.[184]
The second offence is an aggravated offence intended to apply to deliberate
disclosures intended to endanger health and safety or the effectiveness of a
SIO. The offences currently apply to disclosures by any person, including:
-
participants in a SIO;
-
other persons to whom information about a SIO has been
communicated in an official capacity; and
-
persons who are the recipients of an unauthorised disclosure of
information, should they engage in any subsequent disclosure.
Compatibility of the measure with the right to freedom of expression
1.323
Section 35P of the ASIO Act and the special intelligence operations
regime were previously examined by the committee in its Sixteenth Report of
the 44th Parliament.[185]
The previous examination considered that the offence provisions in section 35P
engaged and disproportionately limited the right to freedom of expression. In
particular, the previous examination noted that, as the non-aggravated offence
applies to conduct which is done recklessly rather than intentionally, a
journalist or other person could be found guilty of an offence even though they
did not intentionally disclose information about a SIO.[186]
This raised concerns as to the potential 'chilling effect' of the offences on
the reporting on and scrutiny of ASIO activities. The previous examination also
considered that the defence provisions were very narrow and did not offer
adequate protection of the public interest in respect of public reporting.[187]
1.324
The amendments in new Schedule 18 amend section 35P to provide for two
types of offences; one applying to ASIO officers or affiliated persons
('entrusted persons') and one applying to other persons who are not connected
to or affiliated with ASIO, such as journalists and other members of the community.
Disclosures of information relating to a SIO by people who have not received
the information in their capacity as an 'entrusted person' will only be an
offence if the information would endanger any person or prejudice the conduct
of a SIO.[188]
The amendments also provide for a prior publication defence for people other
than entrusted persons.[189]
Committee comment
1.325
The committee notes that the previous human rights assessment of
section 35P of the ASIO Act considered that the offences of unauthorised
disclosure of information relating to a special intelligence operation engaged
and disproportionately limited the right to freedom of expression.
1.326
The committee further notes that Schedule 18 amends section 35P
to narrow the circumstances in which disclosure by someone who is not an
'entrusted person' will be an offence. The committee considers that these
amendments improve the proportionality of the section with human rights.
1.327
However, noting the significant human rights concerns raised by
section 35P of the ASIO Act and the broader special intelligence operation
regime, identified in the previous human rights assessment of the measure, the
committee draws the human rights implications of the schedule to the attention
of the parliament.
Criminal Code Amendment (Animal Protection) Bill 2015
Purpose
|
The bill proposes to amend
the Criminal Code Act 1995 to insert new offences in relation to failure
to report a visual recording of malicious cruelty to domestic animals, and interference
with the conduct of lawful animal enterprises
|
Sponsor
|
Senator Back
|
Introduced
|
Senate, 31 August 2016
|
Rights
|
Fair trial and fair hearing
(protection against self-incrimination); prohibition against arbitrary
detention (see Appendix 2)
|
Background
1.328
The committee previously considered the bill in its Twenty-fourth
Report of the 44th Parliament and Twenty-eighth Report of the
44th Parliament.[190]
The bill was reintroduced to the Senate on 31 August 2016, in identical form,
following the commencement of the 45th Parliament.
1.329
The committee's previous examination of the bill noted that the proposed
offence for the failure by a person recording what they believe to be malicious
cruelty to report it to relevant authorities engages and limits the right to
protection against self-incrimination, and gives rise to concerns about
proportionality.
1.330
The committee also commented on the proposed offence of interference
with the conduct of lawful animal enterprises, for which a person who causes
economic damage exceeding $10 000 will be liable to a prison term of up to
five years. The committee noted that the breadth of the offence provision, the
uncertainty in its application and the size of the penalty (which could result
in a term of imprisonment being imposed) could amount to arbitrary detention.
Committee comment
1.331
The committee notes that the previous human rights assessment of
the bill considered that the proposed new offences engage and limit the right
to protection from self-incrimination and the prohibition against arbitrary
detention.
1.332
The committee also notes its previous recommendation that the legislation
proponent seek the advice of the Attorney-General to ensure that the offence
provision is drafted consistently with the Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers.
1.333
Noting the concerns raised in the previous human rights
assessment of the bill, the committee draws the human rights implications of
the bill to the attention of the Parliament.
Fair Work Amendment (Penalty Rates Exemption for Small Businesses) Bill
2015
Purpose
|
The bill would amend the Fair
Work Act 2009 to remove the requirement that certain small businesses pay
penalty rates, unless the work is performed on a weekend; is in addition to
38 hours of work over a seven day period; is in addition to ten hours of work
in a 24 hour period; or is performed on a public holiday
|
Sponsor
|
Senators Leyonhjelm and Day
|
Introduced
|
Senate, 31 August 2016
|
Rights
|
Just and favourable conditions
of work; adequate standard of living; equality and non-discrimination (see Appendix
2)
|
Background
1.334
The committee previously considered the bill in its Twenty-seventh
report of the 44th Parliament and Thirtieth report of the
44th Parliament.[191]
The bill was reintroduced to the Senate in identical form following the
commencement of the 45th Parliament.
1.335
The committee's previous examination of the bill noted that the proposed
amendment to the Fair Work Act 2009 to exclude certain employers from
being required to pay penalty rates was likely to be incompatible with the
right to just and favourable conditions of work, the right to an adequate
standard of living and the right to equality and non-discrimination.
Committee comment
1.336
The committee notes that the previous human rights assessment of
the bill concluded that the bill was likely to be incompatible with the right
to just and favourable conditions of work, the right to an adequate standard of
living and the right to equality and non-discrimination.
1.337
Noting the analysis and concerns raised in the previous human
rights assessment of the bill, the committee draws the human rights
implications of the bill to the attention of the Parliament.
Fair Work Amendment (Registered Organisations)
Amendment Bill 2014
Purpose
|
The bill proposes to
establish a Registered Organisations Commission and provide it with
investigation and information‑gathering powers to monitor and regulate
registered organisations; amend the requirements for officers' disclosure of
material personal interests and change the grounds for disqualification and
ineligibility for office; and increase civil penalties and introduce criminal
offences for serious breaches of officers' duties as well as new offences
|
Portfolio
|
Employment
|
Introduced
|
House of Representatives,
31 August 2016
|
Rights
|
Presumption of innocence
(see Appendix 2)
|
Background
1.338
The committee previously examined the bill in its First Report of the
44th Parliament, Fifth Report of the 44th Parliament, Ninth
Report of the 44th Parliament, Twenty-second Report of the 44th
Parliament and Thirty-eighth Report of the 44th Parliament.[192]
1.339
The previous human rights assessment of the bill was able to conclude
that most of these provisions were compatible with human rights on the basis of
additional information provided by the minister.[193]
The minister's response to the committee's requests for information also
proposed to introduce amendments to the bill to narrow the breadth of the
proposed disclosure requirements.[194]
These subsequent amendments, along with additional information provided in the
statement of compatibility, allowed the committee to conclude that many of the
committee's remaining concerns had been addressed.[195]
1.340
The bill was introduced again following the commencement of the 45th
Parliament in identical form to the previous iteration of the bill.
1.341
The previous human rights assessment of the bill concluded that the
reverse burden offence contained in proposed section 337AC, which relates to
the concealing of documents relevant to an investigation, may be incompatible
with the presumption of innocence.[196]
Committee comment
1.342
The committee notes that the previous human rights assessment of
the bills concluded that the proposed reverse burden offence may be
incompatible with the presumption of innocence.
1.343
Accordingly, the committee draws the human rights implications of
the bill to the attention of the Parliament.
Migration Amendment (Character Cancellation
Consequential Provisions) Bill 2016
Purpose
|
The bill makes a range of
amendments to the Migration Amendment (Character and General Visa
Cancellation) Act 2014 including extending detention powers,
expanding powers to remove persons and other associated amendments
|
Portfolio
|
Immigration and Border
Protection
|
Introduced
|
House of Representatives, 1
September 2016
|
Rights
|
Liberty; non-refoulement;
right to an effective remedy (see Appendix 2)
|
Background
1.344
The Migration Amendment (Character and General Visa Cancellation) Bill
2014 (the 2014 bill) expanded visa cancellation powers, and was reported
on by the committee in March 2015 and March 2016.[197]
The 2014 bill passed both Houses of Parliament on 26 November 2014 and
received Royal Assent on 10 December 2014.
1.345
The human rights assessment of the 2014 bill noted that a consequence of
a visa being refused or cancelled on character grounds (including under the
expanded powers) is that the person is prohibited from applying for another
visa;[198]
and becomes an unlawful non-citizen subject to mandatory immigration detention
prior to their removal or deportation, which must occur as soon as reasonably
practicable.[199]
1.346
Pursuant to section 197C of the Migration Act, in exercising the power
to remove a person, it is irrelevant whether Australia has non-refoulement
obligations in respect of an unlawful non-citizen.
1.347
In cases where it is not possible to remove a person because, for
example, they may be subject to persecution if returned to their home country
or no country will accept them, that person may be subject to indefinite
detention.
1.348
Taking into account the preceding considerations, the human rights
analysis of the 2014 bill noted that the expanded visa cancellation powers
engage and limit multiple human rights, including:
-
non-refoulement obligations and the right to an effective remedy;
-
the right to liberty;
-
the right to freedom of movement;
-
the right to freedom of association;
-
the right to freedom of opinion and expression; and
-
the right to privacy.
1.349
The human rights assessment of the 2014 bill found that the expansion of
the visa cancellation powers in the context of the existing framework is likely
to be incompatible with a number of these rights.[200]
1.350
The Migration Amendment (Character Cancellation Consequential
Provisions) Bill 2016 (2016 bill) is said to be for the purpose of ensuring the
provisions in the 2014 bill are given their full effect.[201]
Detention of a person reasonably suspected of being subject to visa
cancelation
1.351
Section 192 of the Migration Act provides that an officer may detain a
non‑citizen where they know or reasonably suspect that a visa may have
been cancelled under particular powers of that Act. The bill amends this
section to make reference to the further visa cancellation powers introduced by
the 2014 bill and therefore provides additional grounds for detention.
Compatibility of the measure with the right to liberty
1.352
The human rights analysis of the 2014 bill noted that detention of a non‑citizen
or cancellation of their visa pending deportation will generally not constitute
arbitrary detention, as it is permissible to detain a person for a reasonable
time pending their deportation.
1.353
However, there may be cases where a person cannot be returned to their
home country on protection grounds (due to the obligation of non-refoulement or
where there is no other country willing to accept the person). Such circumstances
of continuing detention can give rise to instances of arbitrary detention.
1.354
Accordingly, the human rights assessment of the 2014 bill found that
detention in these circumstances is likely to be incompatible with Australia's
obligations under international human rights law. In particular, the assessment
found that it has not been demonstrated that the measure is a proportionate
means of achieving the objective of national security (that is, that the
measure is the least rights restrictive approach).
1.355
As with the human rights assessment of the 2014 bill, the expansion of immigration
detention powers proposed in the 2016 bill raises similar concerns.
Committee comment
1.356
The committee notes that the expansion of detention powers engages
and limits the right to liberty.
1.357
The committee observes that the human rights assessment of the 2014
bill found that related measures were likely to be incompatible with the right
to be free from arbitrary detention; and that similar concerns arise in
relation to the expansion of detention powers in the 2016 bill.
1.358
The committee therefore draws the human rights implications of the
2016 bill to the attention of the Parliament.
Removal powers where there has been a failure to make recommendations
1.359
Section 198 of the Migration Act requires an immigration officer to
remove an unlawful non-citizen in a number of circumstances as soon as
reasonably practicable.
1.360
The bill proposes to introduce new subsection 198(2B) to provide a power
to remove a non-citizen following the cancellation of their visa (including
when such a cancellation is made by a delegate as opposed to the minister
personally).
Compatibility of the measure with non-refoulement obligations and the right
to an effective remedy
1.361
Australia has non-refoulement obligations, which means that it must not
return any person to a country where there is a real risk that they would face
persecution, torture or other serious forms of harm, such as the death penalty;
arbitrary deprivation of life; or cruel, inhuman or degrading treatment or
punishment. This is an absolute right that can never be justifiably limited.
1.362
The human rights assessment of the 2014 bill noted that there is no
statutory protection ensuring that a non-citizen, to whom Australia owes non-refoulement
obligations, is not removed from Australia.[202]
1.363
The powers of removal proposed in new subsection 198(2B) also contain no
safeguards to ensure that a person is not removed from Australia in
circumstances where Australia owes non-refoulement obligations. As set out in
the human rights assessment of the 2014 bill, 'independent, effective and
impartial' review of decisions to remove or deport an individual are required
to comply with Australia’s non-refoulement obligations under the International
Covenant on Civil and Political Rights and the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment.[203]
Committee comment
1.364
The committee notes that the human rights assessment of the 2014 bill
found that the removal or deportation of non-citizens without effective
safeguards, including 'independent, effective and impartial' review of
non-refoulement decisions, is incompatible with the obligation of
non-refoulement.
1.365
Noting that the same human rights concerns apply to the proposed new
removal powers, the committee draws the human rights implications of the 2016
bill to the attention of the Parliament.
Migration Amendment (Family Violence and Other Measures) Bill 2016
Purpose
|
The bill seeks to amend the
Migration Act 1958 to introduce an assessable sponsorship framework
for family sponsored visas
|
Portfolio
|
Immigration and Border
Protection
|
Introduced
|
House of Representatives, 1
September 2016
|
Rights
|
Protection of the family;
family reunion; privacy; security of person; women's rights; rights of
children (see Appendix 2)
|
Approval of persons as sponsors
1.366
The bill proposes to amend the Migration Act 1958 (Migration Act)
to require a proposed sponsor for a family visa to be assessed and approved as
a sponsor before a visa application can be made. In essence, a person must
satisfy prescribed criteria to be approved as a sponsor (proposed section
104E). The criteria for a person to be approved as a sponsor are to be
prescribed in regulations in respect of different classes of visa and are not
set out in the bill.[204]
Compatibility of the measure with human rights
1.367
This measure engages multiple human rights including:
-
the right to the protection of the family including family
reunion;
-
the right to security of person;
-
women's rights;
-
the rights of children; and
-
the right to life.
1.368
It is noted that the purpose of the measure, in addition to
strengthening the integrity of the sponsored family visa program and placing
greater emphasis on the assessment of persons as family sponsors, is stated to
be to decrease family violence including violence against women and children.
Insofar as the measure pursues this third purpose, it is aimed at promoting the
right to security of person; the right to life; the rights of the child and the
rights of women.[205]
However, the substantive criteria for approval that may relate to the purpose
of decreasing family violence are not included in the bill, therefore it is not
possible to say at this stage how the measure promotes these rights.
1.369
By requiring a person to be approved by the Minister for Immigration and
Border Protection before they can sponsor a family member, the measure limits
the ability of a person to be a sponsor and the effect of this measure may be
that individuals are prevented from having their family members join them in
Australia. Accordingly, this measure engages and limits the right to protection
of the family, which includes family reunion.
1.370
Without knowing the criteria for approval as a sponsor it is difficult
to determine whether the measure amounts to a permissible limitation on the
right to the protection of the family. In order for the measure to be
compatible with this right, criteria for approval as a sponsor must be
proportionate to a legitimate objective. An assessment of these criteria (once
they are available) is therefore necessary.
Committee comment
1.371
The committee notes that the measure may promote a range of human
rights, but also limits the right to protection of the family.
1.372
The committee also notes that, as the criteria for a person to be
approved as a family visa sponsor is to be prescribed by regulation, an
assessment of these criteria will be necessary to determine whether the measure
is a proportionate limit on the right to protection of the family. The
committee will examine the criteria once they are prescribed by regulation.
Social Services Legislation Amendment (Family Payments Structural Reform
and Participation Measures) Bill 2016
Purpose
|
The bill proposes to amend
the A New Tax System (Family Assistance) Act 1999 to reduce the rate
of Family Tax Benefit Part B for single parent families with a youngest child
aged 13 to 16 years of age; to remove it entirely for couple families (other
than grandparents) with a youngest child aged 13 or over; and to phase out the Family Tax Benefit Part A and Part B
supplements
|
Portfolio
|
Social Services
|
Introduced
|
House of Representatives, 1
September 2016
|
Right(s)
|
Social security; adequate
standard of living (see Appendix 2)
|
Background
1.373
The committee previously examined the measures in its Thirtieth
Report of the 44th Parliament, Thirty-third Report of the 44th
Parliament and Thirty-seventh Report of the 44th Parliament.[206]
1.374
The bill was reintroduced following the commencement of the 45th
Parliament.
1.375
The previous human rights assessment of the measures concluded that the
reduced rate of Family Tax Benefit Part B and removal of Family Tax Benefit
supplements were likely to be compatible with international human rights law,
on the basis of additional information provided by the minister.
1.376
The statement of compatibility to the bill has included further
information as to the compatibility of the measures with international human
rights law, including the additional information previously provided by the
minister in correspondence with the committee.
Committee comment
1.377
The committee notes that the previous human rights assessment of the
bill concluded that the bill was likely to be compatible with the right to
social security and the right to an adequate standard of living on the basis of
further information provided by the minister.
1.378
The committee thanks the minister for including this additional information
in the statement of compatibility for the new bill.
Social Services Legislation Amendment (Youth Employment) Bill 2016
Purpose
|
The bill seeks to remove the
access of 22 to 24 year olds to Newstart Allowance and Sickness Allowance and
replace it with access to Youth Allowance; and provide for a four‑week
waiting period for certain persons aged under 25 years applying for Youth
Allowance (Other) or Special Benefit
|
Portfolio
|
Social Services
|
Introduced
|
House of Representatives, 1
September 2016
|
Right/s
|
Equality and
non-discrimination; social security; adequate standard of living (see Appendix
2)
|
Background
1.379
The committee has previously examined the measures contained in the bill
in its Ninth Report of the 44th Parliament, Twelfth Report
of the 44th Parliament, Fourteenth Report of the 44th
Parliament, Seventeenth Report of the 44th Parliament, Twenty-fourth
Report of the 44th Parliament, Twenty-eighth Report of the
44th Parliament, and Twenty-ninth Report of the 44th
Parliament.[207]
1.380
Following the commencement of the 45th Parliament, the bill was
reintroduced to the Senate on 1 September 2016, in identical form to the
previous iteration of the bill.
1.381
The previous human rights analysis noted that the proposed changes to
the threshold for Newstart eligibility engage the right to equality and
non-discrimination because, by reducing access to the amount of social security
entitlements for persons of a particular age (in this case, 22 to 24 year olds),
the measure directly discriminates against persons of this age group. The
committee previously concluded that this measure was compatible with human
rights based on further information provided by the minister.[208]
1.382
However, the statement of compatibility for the bill does not include
any of the previously provided information which allowed this measure to be
assessed as compatible with the right to equality and non-discrimination. Where
a measure that the committee has considered is reintroduced, previous
ministerial responses to the committee's requests for further information should
be used to inform the statement of compatibility for the reintroduced measure. This
additional information may assist the committee to determine whether or not the
reintroduced measures are compatible with human rights.
1.383
The previous human rights assessment of the measures in the bill also
raised concerns in relation to the introduction of a four‑week waiting
period for individuals under the age of 25. This measure engages and limits the
rights to social security and an adequate standard of living, as well as the
right to equality and non-discrimination.
Committee comment
1.384
The previous human rights assessment of the bill considered that
the measures engage and limit the right to equality and non‑discrimination;
right to social security; and right to an adequate standard of living.
1.385
The committee's expectation is that statements of compatibility
for reintroduced measures include any information provided by the minister in response
to the committee's previous requests for further information. Such further
information would assist the committee in undertaking a human rights assessment
of reintroduced measures.
1.386
Noting the concerns raised in the previous human rights
assessment of the bill, the committee draws the human rights implications of
the bill to the attention of the Parliament.
Bills not raising human rights concerns
1.387
Of the bills introduced into the parliament between 30 August and 15 September
2016, the following did not raise human rights concerns:[209]
-
Australian Crime Commission Amendment (Criminology Research) Bill
2016;
-
Broadcasting Legislation Amendment (Media Reform) Bill 2016;
-
Broadcasting Legislation Amendment (Television and Radio Licence
Fees) Bill 2016;
-
Competition and Consumer Amendment (Country of Origin) Bill 2016;
-
Corporations Amendment (Auditor Registration) Bill 2016;
-
Customs Tariff Amendment (Tobacco) Bill 2016;
-
Excise Tariff Amendment (Tobacco) Bill 2016;
-
Family Assistance Legislation Amendment (Jobs for Families Child
Care Package) Bill 2016;
-
Great Australian Bight Environment Protection Bill 2016;
-
Higher Education Support Legislation Amendment (2016 Measures
No.1) Bill 2016;
-
Industry Research and Development Amendment (Innovation and
Science Australia) Bill 2016;
-
International Tax Agreements Amendment Bill 2016;
-
Narcotic Drugs (Licence Charges) Bill 2016;
-
Narcotic Drugs Legislation Amendment Bill 2016;
-
National Cancer Screening Register (Consequential and
Transitional Provisions) Bill 2016;
-
National Cancer Screening Register Bill 2016;
-
National Disability Insurance Scheme Savings Fund Special Account
Bill 2016;
-
Offshore Petroleum and Greenhouse Gas Storage Amendment
(Petroleum Pools and Other Measures) Bill 2016;
-
Primary Industries Levies and Charges Collection Amendment Bill
2016;
-
Registration of Deaths Abroad Amendment Bill 2016;
-
Social Services Legislation Amendment (Budget Repair) Bill 2016;
-
Social Services Legislation Amendment (Simplifying Student
Payments) Bill 2016;
-
Statute Law Revision (Spring 2016) Bill 2016;
-
Statute Law Revision Bill 2016;
-
Statute Update Bill 2016;
-
Tax and Superannuation Laws Amendment (2016 Measures No. 2) Bill
2016;
-
Transport Security Amendment (Serious or Organised Crime) Bill
2016;
-
Treasury Laws Amendment (Enterprise Tax Plan) Bill 2016;
-
Treasury Laws Amendment (Income Tax Relief) Bill 2016; and
-
Water Legislation Amendment (Sustainable Diversion Limit
Adjustment) Bill 2016.
1.388
The following bills were introduced and passed between 2 and 4 May 2016
(before the dissolution of the parliament) and also do not raise human rights
concerns:
-
Supply Bill (No. 1) 2016-2017;
-
Supply Bill (No. 2) 2016-2017;
-
Supply (Parliamentary Departments) Bill (No. 1) 2016-2017; and
-
Tax and Superannuation Laws Amendment (Medicare Levy and Medicare
Levy Surcharge) Bill 2016.
1.389
The following private Senators' bills were restored to the notice paper
following the commencement of the 45th Parliament and have
previously been assessed as not raising human rights concerns:
-
Australian Broadcasting Corporation Amendment (Rural and Regional
Advocacy) Bill 2015;
-
Australian Centre for Social Cohesion Bill 2015;
-
Automotive Transformation Scheme (Securing the Automotive
Component Industry) Amendment Bill 2015;
-
Charter of Budget Honesty Amendment (Intergenerational Report)
Bill 2015;
-
Commonwealth Electoral Amendment (Donations Reform) Bill 2014;
-
Commonwealth Electoral Amendment (Political Donations and Other
Measures) Bill 2016;
-
Commonwealth Electoral Amendment (Reducing Barriers for Minor
Parties) Bill 2014;
-
Competition and Consumer Amendment (Australian Country of Origin
Food Labelling) Bill 2015;
-
Defence Legislation Amendment (Parliamentary Approval of Overseas
Service) Bill 2015;
-
End Cruel Cosmetics Bill 2014;
-
Environment Protection and Biodiversity Conservation Amendment
(Prohibition of Live Imports of Primates for Research) Bill 2015;
-
Fair Work Amendment (Gender Pay Gap) Bill 2015;
-
Fair Work Amendment (Protecting Australian Workers) Bill 2016;
-
Guardian for Unaccompanied Children Bill 2014;
-
Independent National Security Legislation Monitor (Improved
Oversight and Resourcing) Bill 2014;
-
Interactive Gambling Amendment (Sports Betting Reform) Bill 2015;
-
Landholders' Right to Refuse (Gas and Coal) Bill 2015;
-
Marriage Equality Amendment Bill 2013;
-
Migration Amendment (Free the Children) Bill 2016;
-
Mining Subsidies Legislation Amendment (Raising Revenue) Bill
2014;
-
Motor Vehicle Standards (Cheaper Transport) Bill 2014;
-
Parliamentary Joint Committee on Intelligence and Security
Amendment Bill 2015;
-
Private Health Insurance Amendment (GP Services) Bill 2014;
-
Recognition of Foreign Marriages Bill 2014;
-
Restoring Territory Rights (Assisted Suicide Legislation) Bill
2015;
-
Restoring Territory Rights (Dying with Dignity) Bill 2016; and
-
Veterans' Entitlement Amendment (Expanded Gold Card Access) Bill
2015.
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