Chapter 1
New and continuing matters
1.1
This report provides the Parliamentary Joint Committee on Human Rights'
view on the compatibility with human rights of bills introduced into the
Parliament from 22 to 24 February 2016, legislative instruments received from
22 January to 4 February 2016, and legislation previously deferred by the
committee.
1.2
The report also includes the committee's consideration of responses
arising from previous reports.
1.3 The committee generally takes an exceptions based approach to its
examination of legislation. The committee therefore comments on legislation
where it considers the legislation raises human rights concerns, having regard
to the information provided by the legislation proponent in the explanatory
memorandum (EM) and statement of compatibility.
1.4
In such cases, the committee usually seeks further information from the
proponent of the legislation. In other cases, the committee may draw matters to
the attention of the relevant legislation proponent on an advice-only basis.
Such matters do not generally require a formal response from the legislation
proponent.
1.5
This chapter includes the committee's examination of new legislation,
and continuing matters in relation to which the committee has received a
response to matters raised in previous reports.
Bills not raising human rights concerns
1.6
The committee has examined the following bills and concluded that they
either do not raise human rights concerns; or they do not require additional comment
as they promote human rights or contain justifiable limitations on human rights
(and may include bills that contain both justifiable limitations on rights and
promotion of human rights):
-
Commonwealth Electoral Amendment Bill 2016; and
-
Public Governance, Performance and Accountability Amendment
(Procuring Australian Goods and Services) Bill 2016.
1.7
In relation to the Passenger Movement Charge Amendment (Norfolk Island)
Bill 2016 and the Territories Legislation Amendment Bill 2016, these bills
address concerns raised by the committee regarding the Norfolk Island
Amendment Act 2015 that may have a discriminatory effect by excluding
some categories of Australian permanent residents from access to social
security.[1]
The committee thanks the Minister for Major Projects, Territories and Local
Government for positively responding to the committee's advice, and notes that
these bills will allow New Zealand citizens who hold an Australian permanent
visa and reside on Norfolk Island access to social security payments,
consistent with the arrangements for other Australian permanent visa holders.
The committee therefore considers that these bills promote human rights.
Instruments not raising human rights concerns
1.8
The committee has examined the legislative instruments received in the
relevant period, as listed in the Journals of the Senate.[2]
Instruments raising human rights concerns are identified in this chapter.
1.9
The committee has concluded that the remaining instruments do not raise
human rights concerns, either because they do not engage human rights, they
contain only justifiable (or marginal) limitations on human rights or because
they promote human rights and do not require additional comment.
Previously considered measures
1.10
The committee refers to its previous comments in relation to the
Migration Amendment (Character Cancellation Consequential Provisions) Bill
2016, which includes measures previously considered by the committee.[3]
Deferred bills and instruments
1.11
The committee continues to defer its consideration of the following
legislation:
-
Autonomous Sanctions (Designated Persons and Entities and
Declared Persons – Iran) Amendment List 2016 (No. 1) [F2016L00047] (deferred
23 February 2016, pending a response from the Minister for Foreign Affairs
regarding instruments made under the Autonomous Sanctions Act 2011 and
the Charter of the United Nations Act 1945);[4]
-
Child Care Benefit (Vaccination Schedules) (Education)
Determination 2015 [F2015L02101] (deferred 23 February 2016, pending a
response from the Minister for Social Services regarding the Social Services
Legislation Amendment (No Jab, No Pay) Bill 2015);[5]
and
-
Migration Amendment (Protection and Other Measures) Regulation
2015 [F2015L00542] (deferred 23 June 2015).[6]
1.12
The committee continues to defer one bill and a number of instruments in
connection with the committee's current review of the Stronger Futures in
the Northern Territory Act 2012 and related legislation.[7]
Response required
1.13
The committee seeks a response or further information from the relevant minister
or legislation proponent with respect to the following bills and instruments.
Aviation Transport Security (Prohibited Cargo - Yemen) Instrument 2015
[F2015L02056]
Aviation Transport Security (Prohibited Cargo - Somalia) Instrument 2015
[F2015L02057]
Aviation Transport Security (Prohibited Cargo - Egypt) Instrument 2015
[F2015L02058]
Aviation Transport Security (Prohibited Cargo - Bangladesh) Instrument 2015
[F2015L02072]
Aviation Transport Security (Prohibited Cargo - Syria) Instrument 2015
[F2015L02073]
Portfolio:
Infrastructure and Transport
Authorising
legislation: Aviation Transport Security Act 2004
Last day to
disallow: 11 May 2016 (Senate)
Purpose
1.14
The above instruments prohibit aviation industry participants from
bringing cargo that has originated from, or that has transited through the
listed countries into Australian territory.
1.15
Measures raising human rights concerns or issues are set out below.
Prohibitions in relation to specified countries
1.16
The instruments relating to Yemen, Somalia and Syria provide a blanket
prohibition on bringing cargo into Australian territory that has originated
from, or has transited through, these countries. The instruments relating to
Egypt and Bangladesh provide a limited range of exceptions to the prohibition.
The committee notes that the instruments apply to 'aviation industry
participants'. However, by prohibiting all or most cargo from Yemen, Somalia,
Bangladesh, Egypt and Syria from being brought into Australia, the instruments
may have a disproportionate effect on people living in Australia who are
originally from these countries as they will be unable to have goods sent to
them from these countries.
1.17
The instruments therefore engage and limit the right to equality and non‑discrimination.
Right to equality and
non-discrimination
1.18
The right to equality and non-discrimination is protected by articles 2
and 26 of the International Covenant on Civil and Political Rights
(ICCPR).
1.19
This is a fundamental human right that is essential to the protection
and respect of all human rights. It provides that everyone is entitled to enjoy
their rights without discrimination of any kind, and that all people are equal
before the law and entitled without discrimination to the equal and
non-discriminatory protection of the law.
1.20
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or religion),[8]
which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.[9]
The UN Human Rights Committee has explained indirect discrimination as 'a rule
or measure that is neutral on its face or without intent to discriminate',
which exclusively or disproportionately affects people with a particular
personal attribute.[10]
Compatibility of the measure with
the right to equality and non-discrimination
1.21
The statement of compatibility for each of the instruments states that
the instruments do not engage any applicable rights or freedoms.
1.22
As outlined at paragraph [1.16] the committee considers that, by
effectively precluding some people in Australia from accessing goods from their
country of origin by air, the instruments engage and may limit the right to
equality and non‑discrimination as there may be a disproportionate impact
on people based on their ethnicity.
1.23
The committee's usual expectation where a measure may limit a human
right is that the accompanying statement of compatibility provide a reasoned
and evidence-based explanation of how the measure supports a legitimate
objective for the purposes of international human rights law. This conforms
with the committee's Guidance Note 1, and the Attorney-General's Department's
guidance on the preparation of statements of compatibility, which states that
the 'existence of a legitimate objective must be identified clearly with
supporting reasons and, generally, empirical data to demonstrate that [it is]
important'. To be capable of justifying a proposed limitation of human rights,
a legitimate objective must address a pressing or substantial concern and not
simply seek an outcome regarded as desirable or convenient. Additionally, a
limitation must be rationally connected to, and a proportionate way to achieve,
its legitimate objective in order to be justifiable in international human
rights law.
1.24
The committee's assessment of the prohibitions relating to cargo from
specific countries against articles 2 and 26 of the International Covenant on
Civil and Political Rights raises questions as to whether the instruments are
compatible with the right to equality and non-discrimination.
1.25
As set out above, the instruments engage and limit the right to
equality and non-discrimination. The statement of compatibility does not
justify that limitation for the purposes of international human rights law. The
committee therefore seeks the advice of the Minister for Infrastructure and
Regional Development as to:
-
the objective to which the proposed changes are addressed, and
why they address a pressing and substantial concern;
-
the rational connection between the limitation on rights and
that objective; and
-
reasons why the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Further response required
1.26
The committee seeks a further response from the relevant minister or
legislation proponent with respect to the following bills and instruments.
Environment Protection and Biodiversity Conservation Amendment (Standing)
Bill 2015
Portfolio: Environment
Introduced: House
of Representatives, 20 August 2015
Purpose
1.27
The Environment Protection and Biodiversity Conservation Amendment
(Standing) Bill 2015 (the bill) seeks to amend the Environment Protection
and Biodiversity Conservation Act 1999 (the Environment Act) to remove
section 487 of the Environment Act. Currently, section 487 expands the meaning
of 'person aggrieved' in the Administrative Decisions (Judicial Review) Act
1977.
1.28
Measures raising human rights concerns or issues are set out below.
Background
1.29
The committee first commented on the bill in its Twenty-seventh
Report of the 44th Parliament (previous report), and
requested further information from the Minister for the Environment as to
whether the bill was compatible with the right to health and a healthy
environment.[11]
Removal of extended standing to seek judicial review of decisions or
conduct under the Environment Act
1.30
Currently, section 487 of the Environment Act gives standing rights (the
right to bring an action before the courts) to individuals and organisations
who, at any time in the preceding two years, have engaged in a series of
activities for the protection or conservation of, or research into, the
Australian environment. This means that currently those individuals and
organisations can bring an action to seek judicial review of actions taken, or
not taken, under the Environment Act. The bill would remove the right of these
individuals and organisations to bring judicial review in relation to decisions
made (or failed to be made) under the Environment Act or conduct engaged under
that Act (or regulations).
1.31
The objectives of the Environment Act include protecting the environment
and ecosystems and promoting ecologically sustainable development, which
includes principles of inter-generational equity; that the present generation
should ensure the health, diversity and productivity of the environment for the
benefit of future generations.[12]
1.32
The committee considered in its previous report that the removal of the
existing right of a person who, or organisation which, is dedicated to
protecting the environment from applying for judicial review of decisions taken
(or not taken) or conduct engaged in under the Environment Act, could result in
a failure to properly enforce the protections under the Environment Act, and as
a result may engage and limit the right to health and a healthy environment.
Right to health and a healthy
environment
1.33
The right to health is guaranteed by article 12(1) of the International
Covenant on Economic, Social and Cultural Rights (ICESCR), and is fundamental
to the exercise of other human rights. The right to health is understood as the
right to enjoy the highest attainable standard of physical and mental health,
and to have access to adequate health care and live in conditions that promote
a healthy life (including, for example, safe and healthy working conditions;
access to safe drinking water; adequate sanitation; adequate supply of safe
food, nutrition and housing; healthy occupational and environmental conditions;
and access to health-related education and information).
Compatibility of the measure with
the right to health and a healthy environment
1.34
The statement of compatibility does not explore whether the right to
health and a healthy environment is engaged by this measure.
1.35
While the text of the ICESCR does not explicitly recognise a human right
to a healthy environment, the UN Committee on Economic, Social and Cultural
Rights has recognised that the enjoyment of a broad range of economic, social
and cultural rights depends on a healthy environment.[13]
The UN Committee has recognised that environmental degradation and resource
depletion can impede the full enjoyment of the right to health.[14]
1.36
The UN Committee has also drawn a direct connection between the
pollution of the environment and the resulting negative effects on the right to
health, explaining that the right to health is violated by 'the failure to
enact or enforce laws to prevent the pollution of water, air and soil by
extractive and manufacturing industries'.[15]
1.37
As such, the removal of a right of a person or bodies who are committed
to environmental protection from seeking to enforce the protections in the
Environment Act, may engage and limit the right to a healthy environment. This
was not addressed in the statement of compatibility.
1.38
The committee therefore sought the advice of the Minister for the
Environment as to whether the bill limits the right to a healthy environment
and, if so, the legitimate objective, rational connection and proportionality
of the measures.
Minister's response
1.28 The committee's assessment of the removal of
extended standing for judicial review of decisions or conduct under the Environment
Protection and Biodiversity Conservation Act 1999 against article 12 of the
International Covenant on Economic, Social and Cultural Rights (right to health
and a healthy environment) raises questions as to whether the measure limits
the right, and if so, whether that limitation is justifiable.
In my view, the removal of the extended standing provisions
does not engage the right to health in Article 12 of the International Covenant
of Economic, Social and Cultural Rights (ICESCR). This is because removing the
extended standing provisions does not change the extent of environment
protection established by the Environment Protection and Biodiversity
Conservation Act 1999 (EPBC Act) and people who have a legitimate interest
in environmental approval decisions made under the EPBC Act will still be able
to bring an action under the Administrative Decisions (Judicial Review) Act
1977 (ADJR Act), the Judiciary Act 1903 (Judiciary Act) or to the
High Court under s 75 of the Constitution.
As already noted in the Statement of Compatibility with human
rights in the explanatory memorandum, the definition of aggrieved persons in
the ADJR Act will remain unchanged. The ADJR Act defines an aggrieved person as
including a person whose interests are adversely affected by the decision,
failure to make a decision or conduct related to the making of decisions. A
person will have standing to seek judicial review under the Judiciary Act if
the person has a private right or can establish that he or she has a 'special
interest in the subject matter of an action' (being an interest over and above
that of the general public). For these reasons, a range of persons will
continue to have standing to seek judicial review of decisions made under the
EPBC Act.
While ICESCR does not define 'health' for the purposes of
Article 12, the Government notes the views of the UN Committee on Economic
Social and Cultural Rights (CESCR) expressed in General Comment No 14, The
Right to the Highest Attainable Standard of Health (2000), that the right
to health embraces a wide range of socio-economic factors that promote
conditions in which people can lead a healthy life. These are considered by the
CESCR to include the underlying determinants of health, such as access to safe
and potable water and adequate sanitation, an adequate supply of safe food,
nutrition and housing, healthy occupational and environmental conditions and
access to health-related education and information, including on sexual and
reproductive health.
While environmental conditions may be important in
guaranteeing the right to health and for a range of other purposes, the CESCR's
statements do not have the effect of re-characterising the right to health as a
right to health and a healthy environment. Furthermore, environmental conditions
are no more significant than other underlying determinants of health outlined
by the CESCR.
Australia has some of the most effective environmental laws
in the world. In the Government's view, the amendments to the EPBC Act do not
change the protection for matters of national environmental significance. The
EPBC Act requires that persons who propose to take an action that has, may have
or is likely to have a significant impact on a matter of national environment
significance seek approval before taking the action. The proposed amendments do
not change Australia's high environmental standards, or the process of
considering and, if appropriate, granting approvals under the EPBC Act. There
are also no changes to State and Territory environmental approval regimes which
operate in conjunction with the EPBC Act.
In my view, given that the Bill does not change the extent of
environment protection established by the EPBC Act and people who have a
legitimate interest in environmental approval decisions will still be able to
bring an action through other means, the right to health is not engaged by this
Bill, and consequently, not limited.
1.29 As set out above, the measure may engage and limit
the right to health and a healthy environment as the Bill removes extended
standing for judicial review of decisions or conduct under the Environment Act.
The statement of compatibility does not justify that possible limitation for
the purposes of international human rights law. The committee therefore seeks the
advice of the Minister for the Environment as to whether the Bill limits the
right to a healthy environment and, if so:
-
whether the proposed changes
are aimed at achieving a legitimate objective;
-
whether there is a rational
connection between the limitation and that objective; and
-
whether the limitation is a
reasonable and proportionate measure for the achievement of that objective.
I do not consider that the Bill limits the right to health,
as described above.
In my view, the changes are aimed at achieving a legitimate objective,
namely bringing the arrangements for standing to make a judicial review
application under the EPBC Act, into line with standard arrangements for
permitting judicial review challenges to the Commonwealth administrative
decisions as provided for under the ADJR Act and the Judiciary Act.
The intent of judicial review is to ensure that the law is
correctly applied. There is though an emerging risk of the extended standing
provisions being used to deliberately disrupt and delay key projects and infrastructure
developments. Such actions are not proportionate to the original purpose of the
extended standing provisions. The Bill seeks to mitigate this risk while still
allowing review of decisions through the ADJR Act and the Judiciary Act.
The repeal of section 487 of the EPBC Act applies in relation
to applications for judicial review made under the ADJR Act after the Bill is
enacted, regardless of when the decision to which the application relates was
made. Therefore the repeal of section 487 does not affect any existing
applications for judicial review.[16]
Committee response
1.39
The committee thanks the Minister for the Environment for his
response.
1.40
The committee agrees that there is no standalone right to a healthy
environment. The committee also agrees with the minister's statement that the
right to health embraces a wide range of socio-economic factors that promote
conditions in which people can lead a healthy life including access to safe and
potable water and adequate sanitation, an adequate supply of safe food,
nutrition and housing, healthy occupational and environmental conditions and
access to health-related education and information, including on sexual and
reproductive health.
1.41
In its initial analysis, the committee noted that the UN Committee had
drawn a link between pollution of the environment and the resulting negative
effects on the right to health, explaining that the right to health is violated
by 'the failure to enact or enforce laws to prevent the pollution of water, air
and soil by extractive and manufacturing industries.'[17]
1.42
The committee thanks the minister for the clarification that the bill
does not alter the substantive environmental standards set out in the Environment
Act. The committee agrees that judicial review is intended to ensure that the
law is correctly applied. For this reason, the committee considers that the
existing extended standing provisions may assist in the enforcement of
environmental laws which are necessary to protect public health.
1.43
The minister states that there is an emerging risk of the extended
standing provisions being used to deliberately disrupt and delay key project
and infrastructure development. The committee considers that this may be a
legitimate objective to justify the measure for the purposes of international human
rights law. However, no evidence is provided in the minister's response as to
the extent and nature of this emerging threat or its impact on development
projects where there is no legitimate environmental concern.
1.44
The committee therefore requests further advice from the Minister
for the Environment as to whether the measure imposes a justified limitation on
the right to health, including evidence as to the nature and extent of the
emerging risk of the extended standing provisions being used to disrupt and
delay key project and infrastructure development.
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