Chapter 2
Concluded matters
2.1
This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
2.2
Correspondence relating to these matters is included at Appendix 1.
Health Insurance Amendment (Safety Net) Bill 2015
Portfolio: Health
Introduced: House of Representatives, 21 October 2015
Purpose
2.3
The Health Insurance Amendment (Safety Net) Bill 2015 (the bill) seeks
to amend the Health Insurance Act 1973 to introduce a new Medicare
safety net, replacing three existing safety nets.
2.4
The new Medicare safety net will continue to cover up to 80 per cent of
out‑of-pocket medical costs once an annual threshold is met, however, it
will introduce a limit on the amount and type of out-of-pocket costs that can
be included in the calculation for the annual safety net threshold.
2.5
Measures raising human rights concerns or issues are set out below.
Background
2.6
The committee first commented on the bill in its Thirtieth Report of
the 44th Parliament, and requested further information from
the Minister for Health as to whether the determinations were compatible with
the right to social security and the right to health.[1]
Limitations on the amount of out-of-pocket health costs that can be claimed
2.7
There are currently three Medicare safety nets:
-
the Original Medicare Safety Net—which increases the Medicare
rebate payable for out-of-hospital Medicare services to 100 per cent of the scheduled
fee once an annual threshold of gap costs has been met;
-
the Greatest Permissible Gap (GPG)—which increases the Medicare
rebate for high cost out-of-hospital services so that the difference between
the Medicare Benefits Schedule (MBS) fee and the Medicare rebate is no more
than $78.40; and
-
the Extended Medicare Safety Net (EMSN)—which provides a rebate
for out‑of-pocket medical costs (for out-of-hospital care) so that
Medicare pays up to 80 per cent of further out-of-pocket costs once an annual
threshold has been met.
2.8
Together these three schemes reduce both the individual costs of high
cost out-of-hospital services for all Medicare recipients and provide increased
rebates to individuals and families who have high annual medical bills that
exceed certain thresholds.
2.9
The bill would replace these three safety nets with a new Medicare
safety net.
2.10
The proposed new Medicare safety net would have a lower annual threshold
for most people including concession card holders, singles and families.[2]
Those receiving FTB A will have to reach a slightly higher threshold than under
current arrangements.[3]
2.11
Currently, all out-of-pocket costs for out-of-hospital Medicare services
count towards the Medicare threshold and there are caps on benefits only for
certain items.
2.12
The bill would limit the out-of-pocket costs that can accumulate per
service to the threshold for all Medicare services and limit the amount of
safety net benefits that are payable per service for all Medicare services. This
will mean that some patients will incur out-of-pocket costs that are not
included in their costs for medical expenses for the purposes of accessing the
new Medicare safety net.
2.13
In addition, it would appear that the bill would remove the GPG which
would result in some people incurring larger out-of-pocket expenses for
individual high cost medical procedures.
2.14
The committee therefore considered in its previous analysis that the
changes to Medicare engage and may limit the right to social security and the
right to health.
Right to social security
2.15
The right to social security is protected by article 9 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR). This
right recognises the importance of adequate social benefits in reducing the
effects of poverty and plays an important role in realising many other
economic, social and cultural rights, particularly the right to an adequate
standard of living and the right to health.
2.16
Access to social security is required when a person has no other income
and has insufficient means to support themselves and their dependents.
Enjoyment of the right requires that sustainable social support schemes are:
-
available to people in need;
-
adequate to support an adequate standard of living and health
care;
-
accessible (providing universal coverage without discrimination
and qualifying and withdrawal conditions that are lawful, reasonable,
proportionate and transparent; and
-
affordable (where contributions are required).
2.17 Under article 2(1) of the ICESCR, Australia has certain obligations in
relation to the right to social security. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps that
might affect the right;
-
the obligation to ensure the right is made available in a
non-discriminatory way; and
-
the obligation to take reasonable measures within its available
resources to progressively secure broader enjoyment of the right.
2.18
Specific situations which are recognised as engaging a person's right to
social security, include health care and sickness; old age; unemployment and
workplace injury; family and child support; paid maternity leave; and
disability support.
2.19
Under article 4 of the ICESCR, economic, social and cultural rights may
be subject only to such limitations as are determined by law and compatible
with the nature of those rights, and solely for the purpose of promoting the
general welfare in a democratic society. Such limitations must be proportionate
to the achievement of a legitimate objective, and must be the least restrictive
alternative where several types of limitations are available.
Right to health
2.20
The right to health is guaranteed by article 12(1) of the 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).
2.21
Article 2(1) of the ICESCR imposes on Australia the obligations listed
above at paragraph [2.17] and article 4 of the ICESCR allows limitations on the
right to health in the manner set out above at paragraph [2.19].
Compatibility of the measure with
the right to social security and the right to health
2.22
The statement of compatibility for the bill acknowledges that the bill
engages these rights, and explains that the objective is 'to ensure that the
safety net arrangements for out-of-pocket costs for out-of-hospital Medicare
services are financially sustainable'.[4]
2.23
It also notes that the bill seeks to address issues raised by two
independent reviews which found that the existing safety net arrangements may
have led to some people experiencing higher out-of-pocket costs. This is
because there is evidence to suggest that the introduction of the EMSN led to
doctors increasing their fees.[5]
2.24
The committee considered that better targeting the safety net
arrangements and ensuring they are financially sustainable is a legitimate
objective for the purposes of international human rights law. The committee
considered that the measures are rationally connected, and likely to be
effective, to achieving this objective.
2.25
Under international human rights law, one of the considerations, in
determining whether a limitation on a right is proportionate, is considering
whether any affected groups are particularly vulnerable.
2.26
The statement of compatibility does not explain whether the bill will
result in many financially disadvantaged people being worse off as a result of
the changes. The committee considered that if this is the case, it is also
unclear what safeguards there are to ensure that financially
disadvantaged people are not effectively barred from accessing appropriate
out-of-hospital healthcare due to a reduction in the benefits payable to them.
2.27
The committee also noted that it would appear that the bill would remove
the GPG, which could result in some people incurring larger individual
out-of-pocket expenses for high cost medical services.
2.28
The committee therefore sought the advice of the Minister for Health as
to whether the limitation is a reasonable and proportionate measure for the
achievement of the objective, in particular, whether financially vulnerable
patients are likely to be unreasonably affected by the changes and, if so, what
safeguards are in place to protect financially vulnerable patients.
Minister's response
The Committee states that the
measures contained in the Bill 'engage and limit the right to social security
and the right to health' under international human rights law. Specifically,
the Committee seeks my advice 'as to whether the limitation is a reasonable and
proportionate measure for the achievement of the objective, in particular,
whether financially vulnerable patients are likely to be unreasonably affected
by the changes and, if so, what safeguards are in place to protect financially
vulnerable patients.' These issues are considered below.
Improved access for
concessional patients and non-concessional single patients
There have been two independent
reviews of the Extended Medicare Safety Net (EMSN). The Extended Medicare
Safety Net Review Report 2009 was a review of the whole EMSN. The Extended
Medicare Safety Net Review of Capping Arrangements Report 2011 evaluated
the introduction of caps on benefits payable through the EMSN. These reports
were prepared by the Centre for Health Economics Research and Evaluation at the
University of Technology, Sydney, following open tender processes.
The 2009 and 2011 reviews found
that most EMSN benefits have flowed to patients living in relatively higher
income areas. Analysis of current Medicare data confirms that this distribution
has persisted. This is a reflection of different patterns of service use, as
well as the tendency of doctors working in higher socio-economic areas to
charge high fees, particularly for people without concession cards. The 2009
review noted that the EMSN 'may be helping wealthier people to afford even more
high‑cost services'. The 2011 review found that after the capping of
safety net benefits for selected MBS items, the reduction in EMSN expenditure
was relatively greater in wealthier areas and major cities, compared to lower
socioeconomic and regional areas.
The existing safety nets also
provide relatively poor access for non‑concessional single people on low
incomes, particularly people below retirement age who do not have children. A
much smaller proportion of single people without concession cards qualify for
the EMSN than any other group. This is due to the ability of family members to
pool out‑of‑pocket costs to qualify for EMSN benefits. Singles, on
the other hand, can only count their own out-of-pocket costs towards the
threshold. If the Bill is not passed, a non-concessional single in 2016 would
need to accumulate $2,030 in out-of-pocket costs to access the EMSN.
The new Medicare safety net
introduces lower thresholds for most patient groups, including a new lower
threshold for singles. It places uniform caps on the amount of out-of-pocket
costs which can accumulate to the eligibility threshold and the total benefits
payable for all Medicare Benefits Schedule (MBS) services. The combined effect
of the lower thresholds and capping arrangements will be to create a relative
shift in safety net payments to concessional patients and single people without
concession cards.
Threshold changes
The 2016 thresholds for the new
Medicare safety net will be:
-
$400 for concessional families and
singles,
-
$700 for FTB (A) families and
singles who do not have a concession card, and
-
$1,000 for all other families.
If the Bill is not passed, the
2016 thresholds for the Extended Medicare safety will be:
-
$647.90 for concession cardholders
and FTB (A) families, and
-
$2,030 for all other families and
singles.
I expect the proportion of
benefits flowing to people charged more moderate fees to increase and
consequently a greater share of safety net benefits for those in lower
socioeconomic areas. The Department of Health estimates an additional 53,000
people will receive a safety net benefit under the new arrangements. The number
of eligible concession card holders is expected to increase by 80,500. The
number of non‑concession card holders is expected to decrease by 27,500,
however, there will be a net increase in non-concessional single people.
Capping arrangements
Although the EMSN was intended to
assist patients who have high out-of-pocket costs, it has had an inflationary
impact in some areas. While the Government pays 80 per cent of the increase in
fees, the patient still pays the remaining 20 per cent. In some cases, the
increase in fees has been so high that Medicare data indicate that patients now
face higher out‑of‑pocket costs than they would have if the safety
net had not existed. More generally, the 2009 review estimated that the EMSN
was directly responsible for a 2.9 per cent increase in provider fees per year
(excluding GPs and pathology). Clearly, this has implications for patients who
need services, but do not qualify for the EMSN, and the health system as a
whole.
Benefit cap
Caps were introduced on safety
net benefits for selected items in 2010. These caps placed an upper limit on
the Commonwealth contribution for the service. This led to some moderation in
the fees charged in some areas for these services. The introduction of safety
net benefit caps for all MBS items is therefore expected to have a moderating
effect on fee inflation.
At present, around 570 MBS items
have a maximum safety net benefit or 'cap' in order to limit the incentives for
providers to charge high fees for these items. However, the 2011 review into
capping arrangements concluded that numerous opportunities remain for providers
to shift billing practices in order to avoid caps.
Cataract surgery provides an
example of billing practice shifting around capped items. Caps were introduced
for cataract surgery in 2010. The 2011 review found that the fees charged
for uncapped MBS item 20142 (the initiation of management of anaesthesia for
lens surgery) increased by 400 per cent at the 90th percentile
provider fee, indicating the possibility of provider fee sharing between
ophthalmologists and anaesthetists to avoid the cap on cataract surgery.
When EMSN benefit caps were
expanded in 2012, a cap was placed on the item for the initiation of
anaesthesia in association with cataract surgery. Since then, some providers
have shifted fees to other items, including to a routine diagnostic test.
Although most doctors charge around $40 for the test, some patients have been
billed over $1,000. While safety net benefit caps could be introduced for the
diagnostic test item, currently there is the possibility that the high fee
would move to another uncapped item. The new Medicare safety net, by capping
benefits for all MBS items, would protect patients against this type of fee
inflation in the future.
Accumulation cap
The 2009 review also found that
one of the main incentives for fee inflation was the ability for people to
cross the threshold of the EMSN in a single high fee service. This is because
when a practitioner knows a patient is likely to qualify for the EMSN, they can
increase their fees with the knowledge the Government is paying the majority of
the cost.
For example, the maximum fee for
brain stem audiometry (a form of hearing test) - an item with an MBS Fee of
around $192 - increased to more than $3,995 in 2014. The patient qualified for
EMSN benefits in a single service and was rebated 80 per cent of all costs in
excess of the relevant threshold. The accumulation cap will in many cases
remove the incentive for providers to charge very high fees relative to the MBS
Fee.
The new thresholds already take
into account the effects of an accumulation cap. In addition, people who are
charged up to 150 per cent of the MBS Fee will not experience more
out-of-pocket costs before reaching the threshold.
The accumulation and safety net
benefit caps for all MBS items will address the chief structural flaws of the
EMSN. The threshold settings and capping arrangements will create a more
level-playing field for patients to qualify for assistance. The accumulation
cap weakens the link between the patient's ability to pay high fees and the
likelihood of reaching the threshold. In combination with the lower threshold
levels, the capping arrangements will facilitate access to the new Medicare
safety net for an additional 80,500 concessional patients.
Removal
of the Greatest Permissible Gap rule
At paragraph 1.89 of the Report,
the Committee raises the potential impact of the removal of the Greatest
Permissible Gap (GPG) rule on financially disadvantaged people, particularly
for 'one-off' services. The removal of the GPG will have no effect on most
services that are bulk billed. For those that are not bulk billed, the impact
of the removal of the GPG will be largely offset by the reduced thresholds of
the new Medicare safety net. The GPG does not apply to in-hospital services. A
worked example, prepared by my Department, to demonstrate the interaction of
the removal of the GPO rule and the new Medicare safety net for a high‑priced
MBS item is at Attachment A.[6]
A significant proportion of the
services to which the GPG rule is applied are bulk-billed, and many of these
are diagnostic imaging MBS items. There is a bulk-billing incentive for diagnostic
imaging services provided to concessional people and children under 16 years of
age. Diagnostic imaging providers receive 95 per cent of the MBS Fee if they
bulk-bill a patient in one of these categories. This is independent of the
operation of the GPG rule. This means that there is no change to the rebate
paid for these services when bulk-billed. The bulk-billing rate across all
diagnostic imaging services for patients in these groups is around 90 per cent.
The MBS items subject to the GPG
rule are for high priced services that are often embedded in a 'cycle of care',
e.g. Assisted Reproductive Technology services. The nature of many of these
high priced items means that at the time a patient receives such a service, he
or she will have, at the least, already seen their GP for a referral and a
specialist for an initial consultation. While there is a reduction in the
standard MBS benefit available, there is an increase in the amount of
out-of-pocket costs that accrue to the safety net thresholds, and the patient
reaches the safety net sooner. This will be of particular benefit to
concessional singles and families who under the new Medicare safety net have a
threshold of $400. Registered families are able to pool out-of-pocket costs to
reach the safety net threshold.
Once the patient has qualified
for the safety net, there is a cap on the amount of safety net benefits that
will be paid (as is currently the case with many high cost out-of-hospital
services), meaning that the net impact on the financial position of the patient
is usually unchanged.
For the reasons outlined above, I
believe these measures are not incompatible with Australia's human rights
obligations and that they are reasonable and proportionate to the achievement
of a legitimate objective.[7]
Committee response
2.29
The committee thanks the Minister for Health for her detailed and
thorough response.
2.30
The committee considers that the response demonstrates that the measures
are well targeted and therefore proportionate to achieving the stated objective.
In particular, the response sets out a number of safeguards in place to ensure
that vulnerable people will not be disadvantaged by the measures and
significant numbers of people will be better off as a result of the changes in
the bill.
2.31
Accordingly, the committee considers that the bill is compatible with
the right to social security and the right to health and has concluded its
examination of the bill.
Omnibus Repeal Day (Spring 2015) Bill 2015
Portfolio: Prime Minister
Introduced: House of Representatives, 12 November 2015
Purpose
2.32
The Omnibus Repeal Day (Spring 2015) Bill 2015 (the bill) seeks to make
a number of amendments to a variety of Acts. The bill seeks to repeal redundant
or spent provisions as well as make a number of amendments designed to reduce regulation.
2.33
Measures raising human rights concerns or issues are set out below.
Background
2.34
The Omnibus Repeal Day (Spring 2014) Bill 2014 (the 2014 bill) sought to
make a number of the amendments that are contained in this bill. The 2014 bill
is currently before the House of Representatives.
2.35
The committee previously commented on the 2014 bill in its Nineteenth
Report of the 44th Parliament,[8]
and considered the Parliamentary Secretary to the Prime Minister's response in its
Twenty-second Report of the 44th Parliament.[9]
2.36
The committee first commented on the bill in its Thirty-first Report
of the 44th Parliament, and requested further information from
the Assistant Minister for Productivity as to whether the bill was compatible
with the right to equality and non‑discrimination (rights of persons with
disabilities).[10]
Removal of consultation requirements when changing disability standards
2.37
Part 2 of Schedule 3 of the bill seeks to repeal a number of provisions
in various Acts relating to consultation requirements, including repealing
subsections 382(1) and (5) of the Telecommunication Act 1997 (Telecommunications
Act).
2.38
Currently under the Telecommunications Act, the Australian
Communications and Media Authority (ACMA) can make a 'disability standard' in
relation to equipment used in connection with a standard telephone service
where features of the equipment are designed to cater for the special needs of
persons with disabilities (for example, an induction loop designed to assist
with a hearing aid).[11]
Before making a disability standard, ACMA must try to ensure that interested
persons have an adequate opportunity (of at least 60 days) to make
representations about the proposed standard, and give due consideration to any
representations made.[12]
2.39
In its previous report the committee considered that repealing
consultation requirements under the Telecommunications Act relating to changes
to disability standards engages the right to equality and non-discrimination
and the rights of persons with disabilities.
Right to equality and non-discrimination (rights of persons with disabilities)
2.40
The rights to equality and non-discrimination are protected by articles
2, 16 and 26 of the International Covenant on Civil and Political Rights
(ICCPR).
2.41
These are fundamental human rights that are essential to the protection
and respect of all human rights. They provide that everyone is entitled to
enjoy their rights without discrimination of any kind, and that all people are
equal before the law and entitled without discrimination to the equal and
non-discriminatory protection of the law.
2.42
The ICCPR defines 'discrimination' as a distinction based on a personal attribute
(for example, race, sex or on the basis of disability),[13]
which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.[14]
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.[15]
2.43
The Convention on the Rights of Persons with Disabilities (CRPD) further
describes the content of these rights, describing the specific elements that
state parties are required to take into account to ensure the right to equality
before the law for people with disabilities, on an equal basis with others.
2.44
Article 4 of the CRPD requires that when legislation and policies are
being developed and implemented that relates to persons with disabilities,
state parties must closely consult with and actively involve persons with
disabilities through their representative organisations.
2.45
Article 9 of the CRPD requires state parties to take appropriate
measures to ensure persons with disabilities have access, on an equal basis
with others, to information and communications technologies and systems.
2.46
Article 21 of the CRPD requires state parties to take all appropriate
measures to ensure persons with disabilities can exercise the right to freedom
of expression and opinion, including the freedom to seek, receive and impart
information and ideas on an equal basis with others.
Compatibility of the measure with
the right to equality and non-discrimination (rights of persons with
disabilities)
2.47
The committee notes that the CRPD describes the specific elements that
state parties are required to take into account to ensure the right to equality
and non-discrimination. In particular, article 4(3) of the CRPD requires that
when legislation and policies are being developed and implemented that relate
to persons with disabilities, state parties must closely consult with and
actively involve persons with disabilities through their representative
organisations.
2.48
In addition, article 9 of the CRPD requires that state parties take
appropriate measures to ensure persons with disabilities have access, on an
equal basis with others, to information and communications technologies and
systems. The United Nations Committee on the Rights of Persons with
Disabilities has noted that access to information and communications technology
(including telephones) is a requirement of the obligation to adopt and monitor
national accessibility standards, and has noted that it 'is important that the
review and adoption of these laws and regulations are carried out in close
consultation with persons with disabilities and their representative
organizations (article 4, paragraph 3), as well as all other relevant
stakeholders'.[16]
The committee therefore emphasises that the obligation to
respect the right to equality and non-discrimination in relation to persons
with disabilities includes an obligation to closely consult when reviewing any
regulations that affect accessibility, such as national disability standards
administered by the Australian Communications and Media Authority (ACMA) under
the Telecommunications Act. As the bill seeks to repeal consultation
requirements under the Telecommunications Act, it is necessary to demonstrate
that existing legislation provides for as much, if not more, requirements to
consult when any changes are made to disability standards.
2.49
In its previous report, the committee considered that repealing
consultation requirements under the Telecommunications Act relating to changes
to disability standards limits the right to equality and non-discrimination and
the rights of persons with disabilities.
2.50
The statement of compatibility did not sufficiently justify that
limitation for the purposes of international human rights law. The committee
therefore sought the advice of the Assistant Minister for Productivity as to
the legitimate objective, rational connection, and proportionality of the
measure.
Assistant Minister's response
The proposed repeal of
subsections 382(1) and (5) of the Telecommunications Act 1997 (the TC
Act) forms part of a broader reform of statutory consultation requirements in
the Communications and the Arts portfolio. Statutory consultation requirements
have, over time, developed into a variety of inconsistent approaches with
respect to the time and method of consultation. The legitimate objective of
making consultation requirements consistent across portfolio legislation will
reduce the complexity and inflexibility of current arrangements, providing
stakeholders with certainty and consistency, and allowing rule-makers to
undertake targeted, appropriate and satisfactory consultation using
standardised consultation requirements already provided for in Section 17 of
the Legislative Instruments Act 2003 (the LI Act).
The consultation provisions in
section 382 of the TC Act do not strictly require that consultation be
undertaken before an instrument is made. Rather, the provisions require the Australian
Communications and Media Authority (ACMA) to 'so far as is practicable, try to ensure'
that an adequate opportunity is provided for representations to be made. The 60 day
period referred to in subsection 382(5), for persons to make representations,
applies in the context of the ACMA's obligations to try to consult so far as is
practicable.
Subsection 17(1) of the LI Act on
the other hand requires a rule-maker, before making a legislative instrument,
to be satisfied that he or she has undertaken consultation that is appropriate
and reasonably practicable. Accordingly, both section 382 of the TC Act and section
17 of the LI Act are framed in terms of 'practicable' consultation. The LI Act provides
for equivalent requirements for the ACMA to consult when any changes are made
to disability standards.
The legislated consultation
obligations in section 17 of the LI Act will ensure that persons with
disabilities continue to be consulted by the ACMA in the making of disability
standards, particularly as the ACMA ensures the effectiveness of any standard
providing for the needs of persons with disabilities. Therefore the repeal of
subsections 382(1) and (5) of the TC Act would not limit requirements for
consultations with persons with disabilities, and there is no limitation on the
right to equality and non‑discrimination in relation to persons with disabilities.
It is worth noting that Part 5 of
the LI Act sets out a tabling and disallowance regime which facilitates
parliamentary scrutiny of legislative instruments. The consultation undertaken
in relation to any legislative instrument is required to be detailed in the
associated explanatory statement and, accordingly, if Parliament were
dissatisfied with the level of consultation undertaken, the instrument may be
disallowed.
In the present context of
disability standards made by the ACMA, if the Parliament were dissatisfied with
the ACMA's response to the requirement for appropriate and reasonably practicable
consultation under section 17 of the LI Act, then Parliament could
disallow the instrument.
The proposed repeal of
subsections 382(1) and (5) of the TC Act therefore may engage but do not limit
the right to equality and non-discrimination and the rights of persons with disabilities,
due to the operation of comparable provisions in Section 17 of the LI Act.[17]
Committee response
2.51
The committee thanks the Assistant Minister for Productivity
for his response.
2.52
The committee acknowledges the assistant minister's advice that the
existing provisions of the Legislative Instruments Act 2003 (Legislative
Instruments Act) provides a statutory mechanism for people to comment on those
standards, and that the consultation provisions in section 17 of the Legislative
Instruments Act are 'comparable' to the consultation requirements under
section 382 of the Telecommunications Act. Further, the committee accepts
that, as the assistant minister notes, section 382 of the Telecommunications
Act and section 17 of the Legislative Instruments Act do not strictly require
that consultation be undertaken before an instrument is made.
2.53
However, as the committee noted in its initial consideration of this
matter, and in relation to the 2014 bill, the consultation requirements under
the Legislative Instruments Act are nevertheless not equivalent to the current
consultation requirements in the Telecommunications Act. In particular, there
are no equivalent process requirements to those contained in the
Telecommunications Act, which provides for at least 60 days for people to make
comments on a proposed standard. In addition, the Legislative Instruments Act
provides that consultation may not be undertaken if a rule-maker considers it
to be unnecessary or inappropriate; and the fact that consultation does not
occur cannot affect the validity or enforceability of an instrument. Therefore,
contrary to the assistant minister's advice, the repeal of the consultation
requirements in relation to disability standards would limit the right to
equality and non-discrimination, in particular, the obligation to consult under
the CRPD.
2.54
A limitation on a right can be justified if the measure seeks to achieve
a legitimate objective and the limitation is rationally connected to, and is a
proportionate way to achieve, its legitimate objective.
2.55
The committee notes the assistant minister's advice that the purpose of
the amendment is to take a consistent approach to the reform of statutory
consultation requirements, which will 'reduce the complexity and inflexibility
of current arrangements providing stakeholders with certainty and consistency',
and allow 'rule-makers to undertake targeted, appropriate and satisfactory
consultation using standardised consultation requirements'.[18]
The committee accepts that standardised requirements will assist rule-makers in
this regard.
2.56
However, the committee notes that to be capable of justifying a proposed
limitation on human rights, a legitimate objective must address a pressing or
substantial concern and not simply seek an outcome regarded as desirable or
convenient. The committee considers that the simplification of the law in order
to achieve the objective of consistency and standardisation may not be
considered to meet a pressing or substantial concern, such that it would
warrant limiting the obligation to closely consult with, and actively involve,
persons with disabilities when adopting and monitoring national accessibility
standards.
2.57
The committee notes further that while standardisation may be an appropriate
aim in the abstract, international human rights law recognises that laws and
policies may need to take into account the special needs of particular groups
in order to comply with the right to equality and non-discrimination. Treating
persons with a disability exactly the same as others in the community, without
taking into account their special needs, does not advance the right to equality
before the law under international human rights law.
2.58
Finally, the committee also notes the assistant minister's advice that
Parliament may, under Part V of the Legislative Instruments Act, disallow any
instruments made by ACMA, if it were dissatisfied with the level of
consultation undertaken.[19]
This is correct. However, it fails to appreciate the reduction in protection
offered to persons with disabilities under sections 382(1) and 382(5) of the
Telecommunications Act.
2.59 The committee therefore considers that the repeal of the consultation
requirements under the Telecommunications Act relating to disability standards
limits the right to equality and non-discrimination and the rights of persons
with disabilities. In light of the information provided by the Assistant
Minister for Productivity, the committee considers that this measure may be
incompatible with these rights.
Removal of requirement for independent reviews of Stronger Futures measures
2.60
In its previous report, the committee considered that removal of a
legislated requirement for independent review of the Stronger Futures measures
may affect the proportionality of any limitations on rights posed by the
Stronger Futures measures and impact on whether such measures can be considered
to justifiably limit human rights.
2.61
The committee noted further that it is currently conducting its Review
of Stronger Futures in the Northern Territory Act 2012 and related legislation
and will consider the effect of the removal of the review requirements as part
of that inquiry. That inquiry is due to be completed shortly.
Migration and Maritime Powers Amendment Bill (No. 1) 2015
Portfolio: Immigration
and Border Protection
Introduced: House
of Representatives, 16 September 2015
Purpose
2.62
The Migration and Maritime Powers Amendment Bill (No. 1) 2015 (the bill)
seeks to amend the Migration Act 1958 (the Migration Act) to:
-
provide that when an unlawful non-citizen is in the process of
being removed to another country and if, before they enter that country, the
person is returned to Australia, then that person has a lawful basis to return
to Australia without a visa;
-
provide that when that person is returned to Australia, bars on
the person making a valid visa application for certain visas will continue to
apply as if they had never left Australia;
-
make further amendments arising out of the enactment of the Migration
Amendment (Character and General Visa Cancellation) Act 2014;
-
confirm that a person who has previously been refused a
protection visa application that was made on their behalf cannot make a further
protection visa application; and
-
ensure that fast track applicants can apply to the Administrative
Appeals Tribunal for review of certain decisions.
2.63
The bill also seeks to amend the Maritime Powers Act 2013 to
amend the powers that are able to be exercised in the course of passage through
or above waters of another country in a manner consistent with the United
Nations Convention on the Law of the Sea.
2.64
Measures raising human rights concerns or issues are set out below.
Background
2.65
The committee first reported on the bill in its Thirtieth Report of
the 44th Parliament (previous report), and requested
further information from the Minister for Immigration and Border Protection as
to the compatibility of the bill with Australia's international human rights
obligations.[20]
Extending the statutory bar on protection visa claims in the event of an
unsuccessful removal from Australia.
2.66
The amendments in Schedule 1 of the bill provide that when an
unsuccessful attempt is made to remove a non-citizen from Australia, the
non-citizen can be returned to Australia without a visa and will be taken to
have been continuously in the migration zone.
2.67
The effect of this amendment is that the person would be ineligible to
make further applications for a protection visa because they would be
characterised as being continuously in the migration zone, such that the
refusal or cancellation of their visa continues to have effect despite their
attempted removal.
2.68
Nevertheless, the fact that the person has been refused entry by their
home country may be a relevant factor in assessing the legitimacy of their
protection claim. It may also be evidence that they are effectively stateless.
The inability of individuals in such circumstances to make a new protection
claim means that the person may be subject to indefinite immigration detention
(raising the right to liberty) or subject to further attempts at deportation
that may engage Australia's non-refoulement obligations.
2.69
These measures would also apply to children and so raise questions as to
the compatibility of the measures with the obligation to consider the best
interests of the child.
2.70
The committee's assessment of the compatibility of the measures for each
of these human rights is set out below.
Right to liberty
2.71
Article 9 of the International Covenant on Civil and Political Rights
(ICCPR) protects the right to liberty—the procedural guarantee not to be
arbitrarily and unlawfully deprived of liberty. This prohibition against
arbitrary detention requires that the state should not deprive a person of
their liberty except in accordance with law. The notion of 'arbitrariness'
includes elements of inappropriateness, injustice and lack of predictability.
2.72
Accordingly, any detention must not only be lawful, it must also be
reasonable, necessary and proportionate in all the circumstances. Detention
that may initially be necessary and reasonable may become arbitrary over time
if the circumstances no longer require the detention. In this respect, regular
review must be available to scrutinise whether the continued detention is
lawful and non‑arbitrary. The right to liberty applies to all forms of
deprivations of liberty, including immigration detention.
Compatibility of the measure with
the right to liberty
2.73
The statement of compatibility explains that the measures in Schedule 1
engage the right to liberty. The statement of compatibility further explains
that while the right to liberty is engaged, any limitation on the right is
otherwise justified.
2.74
The committee considers that ensuring the safety of Australians is a
legitimate objective for the purpose of international human rights law.
However, the statement of compatibility does not explicitly explain how the
measures are rationally connected to that objective, nor how they are
proportionate. In particular, it is unclear whether there are sufficient
safeguards to ensure that the detention of persons after their return to
Australia following an unsuccessful return to their home country will not lead
to cases of arbitrary detention.
2.75
The statement of compatibility notes that:
The Australian Government's
position is that the detention of individuals is neither unlawful nor arbitrary
per se under international law. Continuing detention may become arbitrary after
a certain period of time without proper justification. The determining factor,
however, is not the length of detention, but whether the grounds for the
detention are justifiable. In the context of Article 9, detention that is not
"arbitrary" must have a legitimate purpose within the framework of
the ICCPR in its entirety. Detention must be predictable in the sense of the
rule of law (it must not be capricious) and it must be reasonable (or
proportional) in relation to the purpose to be achieved.[21]
2.76
However, the UN Human Rights Committee (HRC) recently considered
Australia's mandatory detention regime in the context of refugees subject to
adverse security assessments. The HRC found the detention to be in violation of
the right to liberty in article 9 of the ICCPR because of the blanket and
mandatory nature of detention for those who have been refused a visa but who
are unable to be removed from Australia.[22]
2.77
In particular, the Australian system provides for no consideration of
whether detention is justified and necessary in each individual case—detention
is simply required as a matter of policy. It is this essential feature of the
mandatory detention regime that raises concerns as to its compatibility with the
right to liberty in article 9 of the ICCPR.
2.78
As set out above, extending the statutory bar on protection visa claims
in the event of an unsuccessful removal from Australia, in the context of
Australia's mandatory immigration detention policy, limits the right to
liberty. The statement of compatibility does not sufficiently justify that
limitation for the purposes of international human rights law. The committee
therefore sought the advice of the Minister for Immigration and Border
Protection as to 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, in particular, if
it is the least rights restrictive approach that could be taken in order to
achieve the stated objective.
Minister's response
Under existing law, a person who
has been removed to another country, and is then refused entry by the
destination country, does not need a visa to return to Australia. When this
happens, any bars imposed before they left that prevent them from making a
further visa application will continue to apply when they are returned to
Australia.
This is not the case, however, if
the person is turned around in transit. The legislative changes will ensure
that a consistent approach is taken for a person whose removal is aborted in
transit prior to reaching the destination country.
Under the changes, sections 42,
48 and 48A will operate consistently for the range of situations that might
prevent the department from completing a removal once it is underway.
-
The changes ensure that, for the
very small number of cases where a person is turned around in transit, the
person can return to Australia under the same visa conditions they had before
being removed and that those conditions will remain in force while alternative
removal arrangements are undertaken.
-
This will enable new removal
arrangements to be made without being delayed by further visa applications-
thereby facilitating the least restrictive approach to detention by removing
access to unintended mechanisms that could delay removal.
The application of the same
measures to persons that currently apply to a person returned from a
destination country to those returned from a transit country could not, in
itself, lead to arbitrary detention. Their detention in Australia is not
unlawful (by virtue of compliance with section 189 of the Migration Act), and
would not be arbitrary as it would be for the purpose of either removing the
person from Australia or granting them a visa.
To ensure a person in immigration
detention is held lawfully under section 189 of the Migration Act, as an
unlawful non-citizen (UNC), and to avoid the possibility of the person being
unlawfully or arbitrarily detained, my department undertakes regular reviews of
immigration detainees. These reviews include:
-
confirming an UNC's identity and
unlawful immigration status;
-
ensuring any outstanding matters
relating to the person's immigration status are resolved as soon as possible;
and
-
ensuring that voluntary requests
for removal from Australia are facilitated as soon as reasonably practicable,
as required under section 198 of the Migration Act.[23]
Committee response
2.79
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.80
In its initial analysis, the committee set out the basis of the HRC
decision against Australia concerning the continued detention of 46 refugees
subject to adverse ASIO security assessments. The HRC found that their
indefinite detention on security grounds amounted to arbitrary detention and to
cruel, inhuman or degrading treatment, contrary to articles 9(1), 9(4) and 7 of
the ICCPR. The HRC considered the detention of the refugees to be in violation
of the right to liberty in article 9 of the ICCPR because the government:
-
had not demonstrated on an individual basis that their continuous
indefinite detention was justified; or that other, less intrusive measures
could not have achieved the same security objectives;
-
had not informed them of the specific risk attributed to each of
them and of the efforts undertaken to find solutions to allow them to be
released from detention; and
-
had deprived them of legal safeguards to enable them to challenge
their indefinite detention, in particular, the absence of substantive review of
the detention, which could lead to their release from arbitrary detention.[24]
2.81
Accordingly, the HRC's assessment provides clear standards to be met for
detention to be compatible with article 9.
2.82
The minister's response sets out three examples of regular reviews
undertaken by his department which are said to ensure that that no person in
immigration detention is arbitrarily detained. These reviews, while important,
do not meet the standard set out by the HRC. None of the mechanisms are set out
in statute and no person in immigration detention has any legal entitlement to
require those reviews to occur, such as by seeking administrative or judicial
review. The mechanisms set out in the minister's response are entirely at the
discretion of the department and the minister personally.
2.83
As acknowledged in the statement of compatibility, the bill would widen
the scope of non-citizens who will be ineligible to apply for a visa and
subsequently liable for detention under the Migration Act. For the reasons set
out above, that detention is arbitrary. Accordingly, the bill engages and
limits the right not to be arbitrarily detained in breach of article 9 of the
ICCPR.
2.84
The committee's assessment of the proposed extension of the statutory
bar on protection visa claims in the event of an unsuccessful removal from
Australia, in the context of Australia's mandatory immigration detention
policy, is that it is incompatible with article 9 of the International
Covenant on Civil and Political Rights (right to liberty).
2.85
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to:
-
provide an individual assessment of the necessity of detention in
each individual case;
-
provide each individual subject to immigration detention a
statutory right of review of the necessity of that detention;[25]
and
-
in the case of individuals detained for a lengthy period of time,
provide a periodic statutory right of review of the necessity of continued
detention.
Non-refoulement obligations
2.86
Australia has non-refoulement obligations under the Refugee Convention
for refugees, and under both the ICCPR and the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) for people who
are found not to be refugees.[26] This means that Australia
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.[27]
2.87
Non-refoulement obligations are absolute and may not be subject to any
limitations.
2.88
Effective and impartial review by a court or tribunal of decisions to
deport or remove a person, including merits review in the Australian context,
is integral to complying with non-refoulement obligations.[28]
2.89
Australia gives effect to its non-refoulement obligations principally
through the Migration Act.
Compatibility of the measure with
the right to non-refoulement
2.90
The statement of compatibility notes that the amendments may lead to an
unlawful non-citizen being ineligible to make a further application for a
protection visa. However, the statement highlights the availability of the
minister's non‑compellable powers under the Migration Act to grant a
visa.[29]
2.91
The obligation of non-refoulement and the right to an effective remedy
require an opportunity for effective, independent and impartial review of the
decision to expel or remove.[30]
In this regard, the committee notes that there is no right to merits review of
a decision that is made personally by the minister.
2.92
In relation to this, treaty monitoring bodies have found that the
provision of effective and impartial review of non-refoulement decisions by a
court or tribunal is integral to complying with the obligation of
non-refoulement under the ICCPR and CAT.
2.93
As the committee has noted previously, administrative and discretionary
safeguards are less stringent than the protection of statutory processes, and
are insufficient in and of themselves to satisfy the standards of 'independent,
effective and impartial' review required to comply with Australia's
non-refoulement obligations under the ICCPR and the CAT.[31]
The committee notes that review mechanisms are important in guarding against
the irreversible harm which may be caused by breaches of Australia's
non-refoulement obligations.
2.94
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to how the changes can be compatible with
Australia's absolute non-refoulement obligations in light of the committee's
concerns raised above.
Minister's response
A person in Australia who is not
able to apply for a protection visa will not be removed in breach of
Australia's non-refoulement obligations. Any new claims for protection that
were not previously assessed will be appropriately considered, and my
department has administrative processes in place, such as an International
Treaties Obligation Assessment or my ability to exercise my powers under the
Migration Act and grant a person a visa, which are designed to assess such
claims and safeguard Australia's non-refoulement obligations. Removals do not
take place where outstanding obligations require assessment. For cases affected
by this change that raise new claims upon return to Australia, those claims
will be considered through existing mechanisms within the (new) removal
planning framework whereby application bars can be lifted where appropriate.[32]
Committee response
2.95
The committee thanks the Minister for Immigration and Border Protection
for his response.
2.96
The legal advice to the committee since its inception in 2012 is that
administrative processes are insufficient to protect against unlawful
refoulement as required by international law.
2.97
The obligation of non-refoulement and the right to an effective remedy
require an opportunity for effective, independent and impartial review of the
decision to expel or remove.[33]
The consistent view of the committee was detailed in its initial analysis in the
previous report.
2.98
The mechanisms set out in the minister's response are entirely
administrative and there is no legal protection against non-refoulement in the
form of a reviewable decision.
2.99
As the committee has noted previously, administrative and discretionary
safeguards are less reliable than the protection of safeguards set out in
legislation, and are insufficient in and of themselves to satisfy the standards
of 'independent, effective and impartial' review required to comply with
Australia's non-refoulement obligations under the ICCPR and the CAT.[34]
The committee notes that review mechanisms are important in guarding against
the serious and irreversible harm which may be caused by breaches of
Australia's non-refoulement obligations.
2.100
The committee's assessment of the proposed extension of the statutory
bar on protection visa claims in the event of an unsuccessful removal from
Australia against article 3(1) of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, articles 6(1) and 7
of the International Covenant on Civil and Political Rights; and Second
Optional Protocol to the International Covenant on Civil and Political Rights
Aiming at the Abolition of the Death Penalty (non-refoulement) is that the
proposed legislation fails to provide for effective and impartial review of
non-refoulement decisions. Accordingly, the committee considers that the
measure is incompatible with Australia's non‑refoulement obligations
under international law.
2.101
In order to address the human rights compatibility issues raised above, the
Migration Act may be amended to require a departmental review of all non‑refoulement
claims prior to any person's removal from Australia and that any decision taken
by the department following such a review is at a minimum reviewable by the
Administrative Appeals Tribunal.
Obligation to consider the best
interests of the child
2.102
Under the Convention on the Rights of the Child (CRC), state parties are
required to ensure that, in all actions concerning children, the best interests
of the child are a primary consideration.[35]
2.103
This principle requires active measures to protect children's rights and
promote their survival, growth and wellbeing, as well as measures to support
and assist parents and others who have day-to-day responsibility for ensuring
recognition of children's rights. It requires legislative, administrative and
judicial bodies and institutions to systematically consider how children's
rights and interests are or will be affected directly or indirectly by their
decisions and actions.
Compatibility of the measure with
the obligation to consider the best interests of the child
2.104
As set out above, the measures in Schedule 1 of the bill have the effect
of denying a person who has been unsuccessfully removed from Australia from
making further applications for a protection visa. The fact that the person has
been refused entry by their home country may be a relevant factor in assessing
the legitimacy of their protection claim. It may also be evidence that they are
effectively stateless. These measures would also apply to children.
Accordingly, it is necessary to consider how it would be in a child's best
interests to be denied the right to make a new protection visa application
where they had been refused entry by their home country. The engagement of the
measures in Schedule 1 with the obligation to consider the best interests of
the child is not considered in the statement of compatibility.
2.105
The committee therefore requested the Minister for Immigration and
Border Protection's advice on the compatibility of Schedule 1 of the bill with
the obligation to consider the best interests of the child and, particularly,
whether the proposed changes are aimed at achieving a legitimate objective; whether
there is a rational connection between the limitation and that objective; and
whether the limitation is a reasonable and proportionate measure for the
achievement of that objective.
Minister's response
The changes maintain Australia's
obligations and responsibilities under the Convention on the Rights of the
Child (CRC) that were in place prior to departure on the aborted removal. For
the removal to have been initiated, an assessment against the CRC will have
been undertaken where necessary. The fact of the removal being aborted at a
transit destination does not of itself change that assessment nor the
requirement for removal from Australia.
The proposed changes are aimed at
ensuring the legitimate objective of ensuring the removal of persons (including
children where appropriate) who have no legal right to remain in Australia as
required by the Migration Act.
The limitation provides the
opportunity for new removal arrangements to be made (likely through a different
transit point) without the delay that currently exists, by preventing persons
from making a further visa application unless protection circumstances have
changed since departure on the aborted removal.
It is reasonable that any bars
imposed before a person left that prevented them from making a further visa
application would continue to apply when they are returned to Australia
following travel that is aborted during transit.[36]
Committee response
2.106
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.107
The committee agrees that the measure pursues the legitimate objective
of ensuring the removal of persons who have no legal right to remain in
Australia. The committee also agrees that the measure is rationally connected
to that objective as barring a person from making further protection claims
after a failed deportation will strengthen the government's capacity to effect
a further deportation without delay.
2.108
In terms of proportionality, the response does not explain in detail the
safeguards in place to ensure that a child is not subject to subsequent
deportation attempt without legitimate protection claims being considered.
2.109
In its initial analysis, the committed noted that the fact that the
child had been refused entry by their home country may be a relevant factor in
assessing the legitimacy of their protection claim. It may also be evidence
that they are effectively stateless. While there may be many innocuous reasons
for the travel being aborted, it cannot be said in every case that the failure
of transit arrangements is not relevant to the merits of a child's protection
claim.
2.110
The response also asserts that it is reasonable that any bars imposed
before a person left that prevented them from making a further visa application
would continue to apply when they are returned to Australia following travel
that is aborted. Given that the fact that the travel failed could be because of
circumstances that give rise to, or further strengthen a protection claim, the
minister's response does not explain why it is necessary or appropriate to deny
a child the right to make a fresh protection claim on their return to Australia
in those cases.
2.111
The committee's assessment of the proposed extension of the statutory
bar on protection visa claims in the event of an unsuccessful removal from
Australia against article 3(1) of the Convention on the Rights of
the Child (obligation to consider the best interests of the child) is
that it is incompatible with that obligation.
2.112
In order to address the human rights compatibility issues raised above, the
Migration Act may be amended to require a departmental review of all
non-refoulement claims prior to any person's removal from Australia and that
any decision taken by the department following such a review is at a minimum
reviewable by the Administrative Appeals Tribunal.
Expansion of visa cancellation powers
2.113
Schedule 2 of the bill includes amendments which the explanatory memorandum
(EM) describes as 'technical and consequential amendments arising out of the Migration
Amendment (Character and General Visa Cancellation) Act 2014 (the
Character Act).'[37]
The Character Act introduced new powers to refuse or cancel visas on
'character' grounds. The Character Act has the effect of automatically
cancelling a visa if, among other things, the person was imprisoned for a
sentence of 12 months or more, or was convicted of a sexually based offence
involving a child. The Character Act also creates new personal ministerial
powers to reverse decisions made by the Administrative Appeals Tribunal or an
officer of the department. In addition, the Character Act significantly
decreased the threshold under which a person would fail the 'character test'
and increased the minister's powers to cancel visas on the basis of incorrect
information.
2.114
When considering the bill that became the Character Act, the committee
considered that it engaged a number of human rights and related obligations.[38]
Schedule 2 of the bill now makes a number of amendments to the new cancellation
powers introduced by the Character Act which reduce procedural safeguards,
including amendments that:
-
do not require a person in detention to be informed that they
have only two working days to apply for a visa after they have had their visa
cancelled by the minister personally under section 501BA;[39]
-
require a refugee to be held indefinitely even if there is no
prospect they can ever be removed, or if the visa decision is unlawful;[40]
-
extends a ban on most further visa applications in cases where
the minister has personally cancelled a visa;[41]
-
automatically cancel or refuse any other visas in cases where the
minister has personally set aside a decision by the Administrative Appeals
Tribunal or a departmental officer;[42]
and
-
exclude a person for a prescribed time from entering Australia
who has a visa refused or cancelled personally by the minister under sections
501B, or 501BA.[43]
2.115
The committee considers that the changes in Schedule 2 widen the
circumstances in which a person may be subject to immigration detention, visa
cancellation and potential refoulement. Accordingly, Schedule 2 engages the
following rights and obligations:
-
non-refoulement obligations;
-
the right to liberty;
-
the right to freedom of movement;
-
the obligation to consider the best interests of the child; and
-
the right to equality and non-discrimination.
2.116
The committee's assessment of the compatibility of the measures for each
of these human rights is set out below.
Right to liberty
2.117
The right to liberty is described above at paragraphs [2.71] to [2.72].
Compatibility of the measures with
the right to liberty
2.118
The statement of compatibility explains that the measures in Schedule 2
engage but do not limit the right to liberty. The reasoning behind this
conclusion is unclear in the statement of compatibility. The statement of
compatibility nevertheless goes on to explain why any limitation on the right
to liberty is justified.
2.119
The committee considers that ensuring the safety of Australians is a
legitimate objective for the purposes of international human rights law.
However, it is unclear whether these amendments are rationally connected to
that objective. In terms of proportionality the statement of compatibility
states that there are extensive policy guidelines.[44]
2.120
However, there is no discretion once a visa is cancelled or if it is
cancelled automatically by operation of the provisions of the Migration Act.
Moreover, a decision to revoke mandatory cancellation can only be made by the
minister using his personal, non-compellable, discretionary powers.
2.121
The statement of compatibility notes that:
The detention of a non-citizen
under these circumstances is considered neither unlawful nor arbitrary under
international law. The Government has processes in place to mitigate any risk
of a non-citizen's detention becoming indefinite or arbitrary through: internal
administrative review processes; Commonwealth Ombudsman enquiry processes,
reporting and Parliamentary tabling; and, ultimately the use of the Minister's
personal intervention powers to grant a visa or residence determination where
it is considered in the public interest.[45]
2.122
However, none of these mechanisms entail a statutory requirement for
periodic review of the necessity of immigration detention in each individual
case. As noted above at paragraphs [2.76] to [2.77], it is the blanket and
mandatory nature of detention for those who have been refused a visa but who
remain in immigration detention that makes such detention arbitrary.
2.123
The committee notes that no specific explanation is provided for why the
bill includes amendments that a non-citizen who has had a visa cancelled by the
minister personally under section 501BA does not need to be informed that they
may only apply for a visa within 2 working days. Moreover, given the time
critical nature of a person's response to cancellation, no justification is
provided as to how it is sufficient that such information will have been
provided previously in a different context, particularly given the very serious
consequences for the individual concerned and given their pre-existing
vulnerability as a person in detention. It is unclear how this amendment is
necessary or reasonable.
2.124
Returning to Schedule 2 as a whole, the committee accepts that the
safety of the Australian community, particularly in the current security
environment, may be considered to be both a pressing and substantial concern
and a legitimate objective. However, as mandatory detention applies to
individuals regardless of whether they are a threat to national security, the
measure does not appear to be rationally connected to this objective and may
not be proportionate as it is not likely to be the least rights restrictive
approach to achieve the legitimate objective.
2.125
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether there is a rational connection
between the limitation and the stated objective; and whether the limitation is
a reasonable and proportionate measure for the achievement of the stated
objective.
Minister's response
The amendments proposed in
Schedule 2 to the Bill do not expand visa cancellation powers or the grounds
upon which a person may have their visa cancelled; they also do not alter the
detention powers or framework already established in the Migration Act. Nor
does this Bill propose any changes to the mandatory cancellation and revocation
framework. This Bill seeks to ensure that legislative provisions which apply to
other Ministerial powers within the character provisions apply equally to
section 501BA.
Section 501BA, which gives me the
power to overturn the decision of a delegate or AAT member to revoke the mandatory
cancellation of a non‑citizen's visa, was introduced by the Migration
Amendment (Character and General Visa Cancellation) Act 2014 and came into
effect on 11 December 2014. This power is non-delegable and can only be
exercised when I am satisfied that the cancellation of the visa is in the
national interest and the person does not pass certain limbs of the character
test.
The Statement of Compatibly in
the Explanatory Memorandum to the Bill outlines the Government's position that
the detention of unlawful non‑citizens as the result of visa cancellation
is neither unlawful nor arbitrary per se under international law. Continuing
detention may become arbitrary after a certain period of time without proper
justification. The determining factor, however, is not the length of detention,
but whether the grounds for the detention are justifiable. These amendments
will put those whose visas are cancelled on the basis of section 501BA on the
same footing as non-citizens who have had their visa/s cancelled under any
other character provision (sections 501, 501A and 5018). These amendments
present a reasonable response to achieving a legitimate purpose under the
Covenant, which is the safety of the Australian community.
I note that such persons will be
required to be detained under section 189 of the Migration Act as unlawful
non-citizens, and will be liable to be removed from Australia under section 198
of the Migration Act. However, the cancellation of a non-citizen's visa in
circumstances where they present a risk to the Australian community, and their
subsequent detention prior to removal, follows a well established process
within the legislative framework of the Migration Act. The safety of the Australian
community, particularly in the current security environment, is considered to
be both a pressing and substantial concern and a legitimate objective to this
proposal. Further, people who are affected by these measures can seek judicial
review of my cancellation decision, and I repeat what I have said above in
relation to the effectiveness of this review mechanism.[46]
Committee response
2.126
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.127
The committee agrees that the bill does not expand the grounds upon
which a person may have their visa cancelled and that the bill does not alter
the detention powers or framework already established in the Migration Act.
What Schedule 2 of the bill does is seek to make a number of amendments to the
cancellation powers introduced by the Character Act which reduce important
procedural safeguards, including amendments that:
-
do not require a person in detention to be informed that they
have only two working days to apply for a visa after they have had their visa
cancelled by the minister personally under section 501BA;[47]
-
require a refugee to be held indefinitely even if there is no
prospect they can ever be removed, or if the visa decision is unlawful;[48]
-
extend a ban on most further visa applications in cases where the
minister has personally cancelled a visa;[49]
-
automatically cancel or refuse any other visas in cases where the
minister has personally set aside a decision by the Administrative Appeals
Tribunal or a departmental officer;[50]
and
-
exclude a person for a prescribed time from entering Australia
who has a visa refused or cancelled personally by the minister under sections
501B, or 501BA.[51]
2.128
The committee considers that the changes in Schedule 2 widen the
circumstances in which a person may be subject to immigration detention, as the
reduction in procedural safeguards may result in more individuals being caught
by the broadened cancellation powers. This position was accepted in the
statement of compatibility.[52]
2.129
The response states that immigration detention is not arbitrary for the
purposes of international law. However, as set out above at paragraphs [2.80]
to [2.82] this is not the committee's understanding of the state of
international law.
2.130
The response also states that individuals affected by the measures can
seek judicial review of the minister's cancellation powers. While judicial
review may be available, merits review of those powers is not available.
2.131
Judicial review is a considerably limited form of review in that it
allows a court to consider only whether the decision was lawful (that is,
within the power of the decision maker). The court cannot undertake a full
review of the facts (that is, the merits) of a particular case to determine
whether the case was correctly decided.
2.132
Accordingly, there is no effective review of the visa cancellation
powers available to the minister as any judicial review will not be able to
consider whether the visa cancellation was the correct or preferable decision.
2.133
The committee's assessment of the proposed expansion of visa
cancellation powers against article 9 of the International Covenant on
Civil and Political Rights (right to liberty), in the context of Australia's
mandatory immigration detention policy, is that it is incompatible with
article 9 of the International Covenant on Civil and Political Rights (right to
liberty).
2.134
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to:
-
provide an individual assessment of the necessity of detention in
each individual case;
-
provide each individual subject to immigration detention a
statutory right of review of the necessity of that detention;[53]
and
-
in the case of individuals detained for a lengthy period of time,
provide a periodic statutory right of review of the necessity of continued
detention.
Non-refoulement obligations and the
right to an effective remedy
2.135
Australia's non-refoulement obligations are described above at
paragraphs [2.86] to [2.89].
Compatibility of the measures with
Australia's non-refoulement obligations
2.136
The statement of compatibility notes that the amendments may lead to an
unlawful non-citizen being ineligible to make a further application for a
protection visa, but notes the ability of the minister to exercise his
non-compellable powers under the Migration Act to grant a visa.[54]
2.137
As set out above in relation to Schedule 1 at paragraphs [2.92] to [2.93]
the committee's view is that the minister's non-compellable powers are an
insufficient protection against non-refoulement and that international law is
very clear that administrative arrangements are insufficient to protect against
unlawful refoulement.
2.138
Where the processes identified as a safeguard against refoulement
involve purely administrative and discretionary mechanisms, these are insufficient,
on their own, to comply with Australia's non-refoulement obligations.
2.139
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to how the changes can be compatible with
Australia's absolute non-refoulement obligations in light of the committee's
concerns raised above.
Minister's response
I respectfully disagree with the
Committee's view that Schedule 2 of this Bill expands visa cancellation powers.
This Bill does not propose any new cancellation grounds. This Bill seeks to
ensure that legislative provisions which apply to other Ministerial powers
within the character provisions apply equally to section 501BA, which was
introduced by the Migration Amendment (Character and General Visa
Cancellation) Act 2014.
Australia does not seek to resile
from or limit its non-refoulement obligations. Nor do the amendments affect the
substance of Australia's adherence to these obligations. As with other
character cancellation powers, a person cancelled under section 501BA will be
unable to apply for any visa other than a protection visa.
However; I routinely consider
non-refoulement obligations as part of my decision to cancel a visa on
character grounds, and anyone who is found to engage Australia's
non-refoulement obligations will not be removed in breach of those obligations.[55]
Committee response
2.140
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.141
The committee welcomes the minister's commitment not to resile from or
limit Australia's non-refoulement obligation. The committee also welcomes the
minister's routine practice to consider non-refoulement obligations as part of
decisions to cancel visas on character grounds.
2.142
However, for the reasons set out above at paragraphs [2.92] to [2.93]
the committee's view is that the minister's non-compellable powers are an
insufficient protection against non-refoulement and that international law is
very clear that administrative arrangements are insufficient to protect against
unlawful refoulement.
2.143
The committee's assessment of the proposed expansion of visa
cancellation powers against article 3(1) of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, articles
6(1) and 7 of the International Covenant on Civil and Political Rights; and
Second Optional Protocol to the International Covenant on Civil and Political
Rights Aiming at the Abolition of the Death Penalty (non-refoulement) is that
the proposed legislation fails to provide for effective and impartial review of
non-refoulement decisions. Accordingly, the committee considers that the
measure is incompatible with Australia's non-refoulement obligations under
international law.
2.144
In order to address the human rights compatibility issues raised above, the
Migration Act may be amended to require a departmental review of all non‑refoulement
claims prior to any person's removal from Australia and that any decision taken
by the department following such a review is at a minimum reviewable by the
Administrative Appeals Tribunal.
Right to freedom of movement
2.145
Article 12 of the ICCPR protects freedom of movement. The right to
freedom of movement includes the right to move freely within a country for
those who are lawfully within the country, the right to leave any country and
the right to enter one's own country. The right may be restricted in certain
circumstances.
2.146
The right to enter one's own country includes a right to remain in the
country, return to it and enter it. There are few, if any, circumstances in
which depriving a person of the right to enter their own country could be
reasonable. Australia cannot, by stripping a person of nationality or by
expelling them to a third country, arbitrarily prevent a person from returning
to his or her own country.
2.147
The reference to a person's 'own country' is not restricted to the
formal status of citizenship. It includes a country to which a person has very
strong ties.
Compatibility of the measures with
the right to freedom of movement
2.148
The committee notes that the expanded visa cancellation powers, in
widening the scope of people being considered for visa cancellation, may lead
to more permanent residents having their visas cancelled and potentially being
deported from Australia. The statement of compatibility does not address this
issue.
2.149
The language of article 12(4) confers a right not to arbitrarily deprived
of the right to enter one's 'own country'. The provision does not require
'citizenship' or 'nationality'. In interpreting these words according to their
'ordinary meaning' as required by the Vienna Convention on the Law of Treaties
(VCLT), the phrase 'own country' clearly may be read as a broader concept than
the terms 'citizen' or 'national'.
2.150
The UN HRC has interpreted the right to freedom of movement under
article 12(4) of the ICCPR as applying to non-citizens where they had
sufficient ties to a country, and indeed noted that 'close and enduring
connections' with a country 'may be stronger than those of nationality'.[56]
2.151
The HRC's views are not binding on Australia as a matter of
international law. Nevertheless, as the UN body responsible for interpreting
the ICCPR, the HRC's views are highly authoritative interpretations of binding
obligations under the ICCPR and should be given considerable weight by the
government in its interpretation of Australia's obligations. Moreover, these
statements of the HRC in relation to article 12(4) are persuasive as
interpretations of international human rights law that are consistent with the
proper interpretation of treaties as set out in the VCLT.[57]
2.152
Article 32 of the VCLT provides that in the interpretation of treaties
recourse may be had to supplementary means of interpretation in circumstances
where the meaning is ambiguous or unreasonable. Supplementary means of
interpretation include the preparatory work of a treaty, such as the
negotiating record or travaux préparatoires. The committee notes that
the travaux préparatoires for article 12(4) show that the terms
'national' and 'right to return to a country of which he is a national' were
expressly considered and rejected by states during the negotiation of the
ICCPR.
2.153
The travaux préparatoires for article 12(4) also show that
Australia expressed concern during the negotiations about a right of return for
persons who were not nationals of a country but who had established their home
in that country (such as permanent residents in the Australian context).
Accordingly, the phrase 'own country' was proposed by Australia as a
compromise, and the right to enter one's 'own country' rather than the right to
return to a country of which one is a 'national' was agreed in the final text
of the ICCPR.[58]
2.154
In this context, the right to return to one's 'own country' applies to
persons who are not nationals, but have strong links with Australia. As such,
the measures in the bill in expanding the visa cancellation powers and the
power to ban people from returning to Australia engage and limit the right of a
person to return to one's own country. This has not been justified in the
statement of compatibility.
2.155
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether the proposed changes are aimed
at achieving a legitimate objective; whether there is a rational connection
between the limitation and that objective; and whether the limitation is a reasonable
and proportionate measure for the achievement of that objective.
Minister's response
I respectfully disagree with the
committee's view that a person's right to freedom of movement extends to
countries to which that person is not a citizen nor has a lawful right to enter
and/or reside there. It is my position that a person who enters a State under
that State's immigration laws cannot regard the State as his or her own country
when he or she has not acquired nationality in that country. In any event, the
Bill does not seek to enhance cancellation and refusal powers, but to ensure
that legislative provisions which apply to other of my personal powers within
the character provisions apply equally to section 501BA. Further, the non‑citizen's
ties to the Australian community, including their length of residence is taken
into account by delegates when considering whether to exercise the discretion
to revoke the cancellation of the visa. The proposed amendments are therefore
compatible with human rights because insofar as they engage Australia's human
rights obligations, the safety of the Australian community, particularly in the
current security environment is considered to be both a pressing and
substantial concern and a legitimate objective to this proposal.[59]
Committee response
2.156
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.157
The committee notes that the minister disagrees with the committee's
assessment that the right to freedom of movement covers not only citizens but
permanent residents who have lived for many years in Australia and have strong
ties with Australia such that they consider Australia to be their 'own
country'. While the committee provided extensive legal reasoning for its
position, the minister does not explain the legal basis of his views.
2.158
As set out above, the language of article 12(4) does not require
'citizenship' or 'nationality', but adopts the broader concept of 'own country'.
This has been recognised by the UN Human Rights Committee (HRC) in its General
Comment on Article 12 which concludes:
The wording of article 12,
paragraph 4, does not distinguish between nationals and aliens ("no
one"). Thus, the persons entitled to exercise this right can be identified
only by interpreting the meaning of the phrase "his own country". The
scope of "his own country" is broader than the concept "country
of his nationality". It is not limited to nationality in a formal sense,
that is, nationality acquired at birth or by conferral; it embraces, at the
very least, an individual who, because of his or her special ties to or claims
in relation to a given country, cannot be considered to be a mere alien.[60]
2.159
Even if the phrase 'own country' were to refer to 'national' as the
minister contends, nationality under international law is a matter of fact, of
which the conferral of citizenship under municipal law is only one factor. The
ICJ has found that as a matter of customary international law:
nationality is a legal bond
having as its basis a social fact of attachment, a genuine connection of
existence, interests and sentiments, together with the existence of reciprocal
rights and duties.[61]
2.160
The response also states that the bill does not seek to enhance
cancellation or refusal powers. However, the statement of compatibility for the
bill does explain that the bill would widen the circumstances in which a person
may be subject to immigration detention, as the reduction in procedural
safeguards may result in more individuals being caught by the broadened
cancellation powers.[62]
2.161
The committee's assessment of the proposed expansion of visa
cancellation powers, including barring a person from applying for other visas,
against article 12(4) of the International Covenant on Civil and Political
Rights (freedom of movement—right to enter one's own country) is that the
measures may be incompatible with the right to freedom of movement in relation
to Australian permanent residents with longstanding or otherwise strong ties to
Australia.
2.162
In order to address the human rights compatibility issues raised above, the
Migration Act may be amended to require that any person who has lived for many
years in Australia and has such strong ties with Australia that they consider
Australia to be their 'own country' be only subject to visa cancellation if the
minister is satisfied that there is no other way to protect the security of the
Australian community.
Best interests of the child
2.163
The obligation to consider the best interests of the child is described
above at paragraph [2.102] to [2.103].
Compatibility of the measure with
the obligation to consider the best interests of the child
2.164
As set out above, the Character Act introduced provisions automatically
cancelling a visa if, among other things, the person was imprisoned for a
sentence of 12 months or more. The bill makes a number of amendments to the new
cancellation powers introduced by the Character Act which reduce procedural
safeguards. The measures will apply to children who are convicted of an offence
and imprisoned for a sentence of 12 months or more. The cancellation of a
child's visa on the grounds of character raises questions as to how the
obligation to consider the best interests of the child is considered as part of
the visa cancellation process, when the visa being cancelled is held by a
child.
2.165
This obligation to consider the best interests of the child is discussed
in the statement of compatibility, however, it is unclear whether this analysis
is focused on the children of adults who have their visa cancelled on character
grounds or children whose visas are directly cancelled on character grounds.
2.166
The procedure for automatic loss of a visa does not appear to provide
for a consideration of the best interests of the child, as the provision
applies automatically to those who have been convicted of an offence and
sentenced to more than 12 months imprisonment. The provision does not take
into account each child's capacity for reasoning and understanding in
accordance with their emotional and intellectual maturity. It does not take into
account the child's culpability for the conduct in accordance with normative
standards of Australian law. It does not take into account whether the loss of
their visa and right to stay in Australia would be in the best interests of the
child given their particular circumstances.
2.167
The committee therefore requested the Minister for Immigration and
Border Protection's advice on the compatibility of Schedule 2 of the bill with
the obligation to consider the best interests of the child and, particularly,
whether the proposed changes are aimed at achieving a legitimate objective;
whether there is a rational connection between the limitation and that
objective; and whether the limitation is a reasonable and proportionate measure
for the achievement of that objective.
Minister's response
The Government is committed to
acting in accordance with Article 3 of the CRC. The concerns raised by the
Committee in relation to the best interests of the child relate to amendments
that were made by the Migration Amendment (Character and General Visa
Cancellation) Act 2014 and came into effect on 11 December 2014. To
clarify, while section 501 is applicable to minors, it is generally not used to
cancel the visas of minors who have a criminal record, nor does it allow the
cancellation of the visas of dependent family members. Secondly, the Bill does
not propose any changes to the discretionary revocation process or my
(Ministerial) decision making process. In both circumstances the best interests
of any child(ren) affected by the decision is a primary consideration, which is
weighed against factors such as the risk the person presents to the Australian
community.
As stated in the Statement of
Compatibility to the Bill, delegates making a decision on character grounds are
bound by a relevant Ministerial Direction which requires a balancing exercise
of these countervailing considerations and while rights relating to family and
children generally weigh heavily against cancellation, there will be
circumstances where this will be outweighed by the risk to the Australian
community due to the seriousness of the person's criminal record. The safety of
the Australian community, particularly in the current security environment is
considered to be both a pressing and substantial concern and a legitimate
objective to this proposal.[63]
Committee response
2.168
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.169
The committee disagrees that its original comments relate to amendments
that were made by the Migration Amendment (Character and General Visa
Cancellation) Act 2014. The current bill would widen the circumstances in
which a person may be subject to immigration detention, as the reduction in
procedural safeguards may result in more individuals being caught by the
broadened cancellation powers. Accordingly the committee's comments are in
relation to those children who may be caught by the wider application of the
cancellation powers and the reduced safeguards.
2.170
The committee notes that the response explains that while section 501 is
applicable to minors, it is generally not used to cancel the visas of minors
who have a criminal record. While it may not generally be used, as a matter of
departmental policy, the fact that there exists a statutory power that is available
to be used by the minister must be assessed by the committee in accordance with
its statutory mandate.
2.171
In relation to the discretionary revocation process and the minister's
decision‑making processes referred to in the response, neither of these
processes are subject to a mandatory legal requirement that the minister
consider the best interests of the child as a primary consideration in making
any revocation decision. Those processes are administrative and entirely
discretionary.
2.172
The procedure for automatic loss of a visa does not appear to provide
for a consideration of the best interests of the child, as the provision
applies automatically to those who have been convicted of an offence and
sentenced to more than 12 months imprisonment.
2.173
The provision does not take into account each child's capacity for
reasoning and understanding in accordance with their emotional and intellectual
maturity. It does not take into account the child's culpability for the conduct
in accordance with normative standards of Australian law. While the minister
notes that the current security environment is considered to be both a pressing
and substantial concern and that the rights of the child may be outweighed by
the risk to the Australian community due to the seriousness of the person's
criminal record, the response does not address the automatic nature of the
provisions.
2.174
As set out above, the committee's assessment of the proposed expansion
of visa cancellation powers against article 3(1) of the
Convention on the Rights of the Child (obligation to consider the best
interests of the child) is that the changes are incompatible with the
obligation to consider the best interests of the child.
2.175
In order to address the human rights compatibility issues raised above, the
Migration Act may be amended to require that before any child's visa is
cancelled there is an individual assessment of the necessity of that
cancellation with the best interests of the child being a primary
consideration. That assessment must be subject to independent review.
Right to equality and non-discrimination (rights of persons with
disabilities)
2.176
The right to equality and non-discrimination is protected by articles 2,
16 and 26 of the ICCPR.
2.177
This is a fundamental human right that is essential to the protection
and respect of all human rights. It provides that everyone is entitled to enjoy
their rights without discrimination of any kind, and that all people are equal
before the law and entitled without discrimination to the equal and
non-discriminatory protection of the law.
2.178
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or religion),[64]
which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.[65]
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.[66]
2.179
The Convention on the Rights of Persons with Disabilities (CRPD) further
describes the content of these rights, describing the specific elements that
state parties are required to take into account to ensure the right to equality
before the law for people with disabilities, on an equal basis with others.
2.180
Article 5 of the CRPD guarantees equality for all persons under and
before the law and the right to equal protection of the law. It expressly
prohibits all discrimination on the basis of disability.
2.181
Article 12 of the CRPD requires state parties to refrain from denying
persons with disabilities their legal capacity, and to provide them with access
to the support necessary to enable them to make decisions that have legal
effect.
Compatibility of the measure with
the right to equality and non-discrimination (rights of persons with
disabilities)
2.182
Individuals with mental health concerns are significantly
overrepresented in Australia's prison system.[67]
Accordingly, the bill, in extending the automatic visa cancellation of
individuals sentenced to 12 months or more in prison is likely to
disproportionately affect individuals with mental health concerns. Mental
health disorders are a disability for the purposes of the CRPD and thus a
protected attribute for the purposes of the right to equality and
non-discrimination.
2.183
Where a measure impacts on particular groups disproportionately, it
establishes prima facie that there may be indirect discrimination. Indirect
discrimination does not necessarily import any intention to discriminate and
can be an unintended consequence of a measure implemented for a legitimate
purpose. The concept of indirect discrimination in international human rights
law therefore looks beyond the form of a measure and focuses instead on whether
the measure could have a disproportionately negative effect on particular
groups in practice. However, under international human rights law such a
disproportionate effect may be justifiable. More information is required to
establish if the measure does impact disproportionately on persons with
disabilities, and if so, if such a disproportionate effect is justifiable.
2.184
The committee therefore requested the Minister for Immigration and
Border Protection's advice on the compatibility of Schedule 2 of the bill with
the obligation to consider the right to equality and non-discrimination and,
particularly, whether the proposed changes are aimed at achieving a legitimate
objective; whether there is a rational connection between the limitation and
that objective; and whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Minister's response
Whilst noting the concerns of the
Committee in relation to individuals in prison with mental health disorders, I
respectfully disagree that this Bill proposes any changes that limit the right
to equality and non‑discrimination on the basis of disability. These
amendments ensure that the powers under section 501CA and section 501BA are
consistent in their application with other section 501 cancellation powers.
In the Statement of Compatibility
to the Explanatory Memorandum for the Migration Amendment (Character and
General Visa Cancellation) Act 2014, which relevantly amended section 501 of the
Migration Act to capture persons found not fit to plead on mental health
grounds, former Minister Morrison explained that the amendments in that Bill
were not intended to distinguish people with a mental illness for the purpose
of limiting, restricting or not recognising their equal rights with other
members of the community, or for the purpose of treating them differently.
Former Minister Morrison also stated that the amendment was a reasonable and
proportionate response as it enlivened visa cancellation or refusal
consideration only, with the full circumstances of the case being assessed
during the consideration process, which takes into account the person's rights
under Article 26 of the ICCPR. It was stated that the amendment did not enliven
Article 26 of the ICCPR as the right can be limited if it is for maintaining
public order and safety of the Australian community.
Likewise, the proposed amendments
at section 501(7)(f) are aimed at providing a mechanism for my department to
mitigate any risk of a person who has been found by a court to not be fit to
plead but also found on the evidence to have committed the offence, being
released from care or prison into the Australian community without first being
considered under the character provisions. The seriousness of the offence and
any indicative sentence of imprisonment where available are taken into account
when deciding whether to cancel or refuse the visa under this ground. I
maintain the position that the amendments do not enliven Article 26 of the ICCPR
as this right can be limited if it is for maintaining public order and safety
of the Australian community, which is the case here.[68]
Committee response
2.185
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.186
The committee reiterates its view that the measure does clearly on its
face engage and limit article 26 of the ICCPR. Individuals with mental
health concerns are significantly overrepresented in Australia's prison system.[69]
Accordingly, the bill, in extending the automatic visa cancellation of
individuals sentenced to 12 months or more in prison, is likely to
disproportionately affect individuals with mental health concerns. Mental
health disorders are a disability for the purposes of the CRPD and thus a
protected attribute for the purposes of the right to equality and non‑discrimination.
2.187
While the minister's response states that there is no intention to treat
people with a mental health concern differently, that is not decisive in
determining whether the measures are discriminatory. Where a measure impacts on
particular groups disproportionately, it establishes prima facie that there may
be indirect discrimination. Indirect discrimination does not necessarily import
any intention to discriminate and can be an unintended consequence of a measure
implemented for a legitimate purpose. Accordingly, it is necessary to examine
whether the disproportionate effect is justified.
2.188
However, as the minister does not address the issue of disproportionate
impact he provides no information on whether such a disproportionate impact is
in fact justified. There is no statutory requirement to consider whether in
fact a person has undergone treatment and whether they remain a threat to
national security or the Australian community, and as such it is difficult to
assess the measure as justifiable.
2.189
The committee's assessment of the proposed expansion of visa
cancellation powers against articles 2, 16 and 26 of the International
Covenant on Civil and Political Rights, and article 5 of the Convention on the
Rights of Persons with Disabilities (right to equality and
non-discrimination) raises questions as to whether the changes are
compatible with Australia's international human rights law obligations. In the
absence of a justification for the disproportionate effect of the measure on
persons with disabilities, the committee is unable to conclude that the measure
is compatible with the right to equality and non-discrimination on the
basis of disability.
2.190
In order to address the human rights compatibility issues raised above, the
Migration Act may be amended to require that before a visa is cancelled any
mental health claims are appropriately considered in an assessment of the
person's ongoing threat to the community and national security and that the individual
have a right to independent review of any assessment that they are or remain a
threat to the community.
Bars on further applications by children and persons with a mental
impairment
2.191
Section 48A of the Migration Act provides that a non-citizen who,
while in the migration zone, has made an application for a protection visa that
was refused, or who held a protection visa that was cancelled, may not make a
further application for a protection visa. Section 48A was amended in 2014 by
the Migration Amendment Act 2014 (the MA Act) and the Migration
Legislation Amendment Act (No.1) 2014 (the MLA Act).
2.192
The MA Act prevented a further application even if the second
application was based on different protection grounds. The MLA prevented a
further application even if, at the time of the first application, the person
was a child or unable to understand the application (for example, due to their
mental health).
2.193
The effect of this bill would be to ensure that the bar on further
applications applies even if the person is both a child (for example) and makes
an application on different protection grounds.
2.194
The committee considered that the MLA engaged Australia's non‑refoulement
obligations, the obligation to consider the best interests of the child, the
right of the child to be heard in judicial and administrative proceedings, the
right of persons with disabilities to be recognised as persons before the law
and to the equal enjoyment of legal capacity, and the right to equality and non‑discrimination.
The amendments in this bill ensure that the amendments in the MLA also apply in
circumstances where the individual may wish to apply for a protection visa on a
different substantive ground and, as such, the bill further restricts access to
a protection visa. Accordingly, this bill also engages these rights.
2.195
The committee's assessment of the compatibility of the measures for each
of these human rights is set out below.
Non-refoulement obligations and the
right to an effective remedy
2.196
Australia non-refoulement obligations are described above at paragraphs
[2.86] to [2.89].
Compatibility of the measures with
Australia's non-refoulement obligations
2.197
The statement of compatibility notes that while the amendments engage rights
under the CAT and the ICCPR, there are administrative arrangements in place to
ensure that protection claims are assessed before an individual is removed from
Australia.[70]
2.198
As set out above at paragraphs [2.92] to [2.93] in relation to Schedule
1, the minister's personal, non-compellable powers are an insufficient
protection against non-refoulement, and international law is very clear that
administrative arrangements are insufficient to protect against unlawful
refoulement.
2.199
Where the processes identified as a safeguard against refoulement
involve purely administrative and discretionary mechanisms, these are
insufficient, on their own, to comply with Australia's non-refoulement
obligations. The committee therefore considers that the amendments could
increase the risk of Australia breaching its non-refoulement obligations.
2.200
The committee therefore sought the advice of the Minister for Immigration
and Border Protection as to how the changes can be compatible with Australia's
absolute non-refoulement obligations in light of the committee's concerns
raised above.
Minister's response
A person in Australia who is not
able to apply for a protection visa will not be removed in breach of
Australia's non-refoulement obligations. This is the case regardless of whether
a person is a child or has a mental impairment. All individuals' circumstances
are assessed on a case-by-case basis, and any new claims for protection that
were not previously assessed will be appropriately considered, and
consideration given to circumstances including the person's age and mental
health. My department has administrative processes in place, such as an
International Treaties Obligation Assessment and my ability to exercise my
powers under the Migration Act and grant a person a visa, which are designed to
further assess protection claims and, moreover, safeguard Australia's
nonrefoulement obligations.
The changes do not affect the
assessment of legitimate claims that would give rise to nonrefoulement
obligations. All claims made prior to removal will have been assessed and
nonrefoulement obligations complied with before departure. For cases affected
by this change that raise new claims upon return to Australia, those claims
will be considered through existing mechanisms within the (new) removal
planning framework whereby application bars can be lifted where appropriate and
assessment of obligations undertaken in line with existing provisions.[71]
Committee response
2.201
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.202
The mechanisms set out in the response are entirely administrative and
there is no legal protection against non-refoulement in the form of a
reviewable decision. For the reasons set out above at paragraphs [2.96] to [2.99]
these are not sufficient protections for the purposes of international human
rights law.
2.203
The committee's assessment of the proposed bar on further
applications by children and persons with a mental impairment against article
3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, articles 6(1) and 7 of the International Covenant on
Civil and Political Rights; and the Second Optional Protocol to the International
Covenant on Civil and Political Rights Aiming at the Abolition of the Death
Penalty (non-refoulement) is that the proposed legislation fails to provide for
effective and impartial review of non-refoulement decisions. Accordingly, the
committee considers that the measure is incompatible with Australia's
non-refoulement obligations under international law.
2.204
In order to address the human rights compatibility issues raised above, the
Migration Act may be amended to require a departmental review of all non‑refoulement
claims prior to any person's removal from Australia and that any decision taken
by the department following such a review is at a minimum reviewable by the
Administrative Appeals Tribunal.
Obligation to consider the best
interests of the child
2.205
The obligation to consider the best interests of the child is described
above at paragraphs [2.102] to [2.103].
Compatibility of the measures with
the obligation to consider the best interests of the child
2.206
As noted above, the bill would prevent a child from making a further
protection visa application even in circumstances where allowing the visa
application would likely be in their best interests (such as where they had a
valid independent protection claim).
2.207
This obligation is not addressed in the statement of compatibility. The
committee notes that when the provisions were first included in the MLA the
committee concluded that the measures were likely to be incompatible with the
obligation to consider the best interests of the child.
2.208
The committee therefore requested the Minister for Immigration and
Border Protection's advice on the compatibility of Schedule 3 of the bill with
the obligation to consider the best interests of the child and, particularly,
whether the proposed changes are aimed at achieving a legitimate objective;
whether there is a rational connection between the limitation and that
objective; and whether the limitation is a reasonable and proportionate measure
for the achievement of that objective.
Minister's response
The best interests of the child
are a primary consideration in administrative decisions made under the
Migration Act, and an assessment in relation to a child's best interests of
either the child's removal or a person's removal which would particularly
affect a child will have been undertaken during the administrative processes
which took place prior to attempting removal of the child or the other person.
For example, the best interests of the child are a primary consideration in a
delegate's visa cancellation decision, in a visa refusal decision, and if a
visa has ceased naturally, a child's best interests will also be considered
prior to the initiation of the removal operation.
Consequently, in barring persons
from making a further application, it is recognised that these persons will
have already had an opportunity to make a visa application which has already
been considered and, where appropriate, taken into account a child's best
interests in accordance with the CRC.[72]
Committee response
2.209
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.210
The bill would prevent a child from making a further protection visa
application even in circumstances where allowing the visa application would
likely be in their best interests (such as where they had a valid independent
protection claim). How this statutory prohibition is in the best interests of
the child is not specifically addressed in the minister's response. The
response highlights the range of administrative mechanisms which the department
and the minister rely on to ensure decisions are in the best interests of the
child. However, the bill would bar a child from making a further protection
visa application which may put before the department new information or
material that may be relevant. It is not explained how these administrative
processes provide an equivalent protection to a statutory right to make a
further protection visa application when this would be in the child's best
interests.
2.211
The committee's assessment of the proposed bar on further
applications by children against article 3(1) of the Convention on the
Rights of the Child (obligation to consider the best interests of the child)
is that the measure is incompatible with Australia's obligation to consider
the best interests of the child.
2.212
In order to address the human rights compatibility issues raised above, the
Migration Act may be amended to require the department to consider a protection
claim made by a child where it would be in their best interests for the
department to do so. A decision made in relation to that protection claim should
be reviewable.
Right of the child to be heard in
judicial and administrative proceedings
2.213
Article 12 of the CRC provides that state parties shall assure to a
child capable of forming his or her own views the right to express those views
freely in all matters affecting the child. The views of the child must be given
due weight in accordance with the age and maturity of the child.
2.214
In particular, this right requires that the child is provided the
opportunity to be heard in any judicial and administrative proceedings
affecting them, either directly, or through a representative or an appropriate
body, in a manner consistent with the procedural rules of national law.
Compatibility of the measures with
the right of the child to be heard in judicial and administrative proceedings
2.215
The amendments in Schedule 3 further limit the ability of children to
make a subsequent visa application on alternative protection grounds even where
they did not contribute to or consent to the first application.
2.216
When the MLA was introduced the committee noted that the effect of the
proposed amendments in Schedule 1 was to create an assumption, in cases
involving a subsequent visa application by a child, that the previous visa
application made on behalf of the child was valid. This assumption would apply
without a consideration of the age of the child, their relationship with the
person who made the application on their behalf, or an individual assessment of
the extent to which the application was consistent with the wishes of the
child. In the committee's view, to effectively deem the previous application as
valid without considering these factors represented a limitation on the right
of the child to contribute to, or be heard in, judicial and administrative
proceedings. The measures in this bill further limit a child's ability to make
a subsequent visa application and thus further restrict the rights of the
child. This right is not addressed in the statement of compatibility.
2.217
The committee therefore requested the Minister for Immigration and
Border Protection's advice on the compatibility of Schedule 3 of the bill with
the right of the child to be heard in judicial and administrative proceedings
and, particularly, whether the proposed changes are aimed at achieving a
legitimate objective; whether there is a rational connection between the
limitation and that objective; and whether the limitation is a reasonable and
proportionate measure for the achievement of that objective.
Minister's response
I agree that the proposed
amendment engages article 12 of the CRC, and that an assessment of a child's
best interests includes respect for the child's right to express his or her
views freely, and for due weight to be given to those views, depending on the
child's age and maturity. However, I also note - as stated above - that an
assessment in relation to a child's best interests of either the child's
removal or a person's removal which would particularly affect a child will have
been undertaken during the administrative processes which took place prior to
attempting removal of the child or the other person. For example, the best
interests of the child are a primary consideration in a delegate's visa
cancellation decision, in a visa refusal decision, and if a visa has ceased
naturally, a child's best interests will also be considered prior to the
initiation of the removal operation.
Consequently, in barring persons
from making a further application, it is recognised that these persons will
have already had an opportunity to make a visa application which has already
been considered and, where appropriate, taken into account a child's best
interests.
The changes do not affect the
assessment of legitimate claims that would give rise to convention obligations.
All claims made prior to removal will have been assessed and obligations
satisfied before departure.
For cases affected by this change
that raise new claims upon return to Australia those claims will be considered
through existing mechanisms within the (new) removal planning framework whereby
application bars can be lifted where appropriate and assessment of obligations
undertaken in line with existing provisions.[73]
Committee response
2.218
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.219
The response states that an assessment in relation to a child's best
interests would have been taken into account prior to attempting to remove the
child and that accordingly the bar on making a further application simply
recognises that the child would have already had an opportunity to make a visa
claim and have their best interests considered.
2.220
However, the amendments in Schedule 3 further limit the ability of
children to make a subsequent visa application on alternative protection
grounds even where they did not contribute to or consent to the first
application.
2.221
The effect of these amendments is to create an assumption, in cases
involving a subsequent visa application by a child, that the previous visa
application made on behalf of the child was valid. This assumption would apply
without a consideration of the age of the child, their relationship with the
person who made the application on their behalf, or an individual assessment of
the extent to which the application was consistent with the wishes of the
child. In the committee's view, to effectively deem the previous application as
valid without considering these factors represents a limitation on the right of
the child to contribute to, or be heard in, judicial and administrative
proceedings.
2.222
The response also refers to a range of administrative mechanisms which
are in place to ensure that despite a child being barred from making a
subsequent protection visa application the child will not be removed without
the department being satisfied that it has met its non-refoulement obligations.
These mechanisms are administrative and discretionary. For the reasons set out
above at paragraphs [2.96] to [2.99] these are insufficient for the purposes of
international human rights law.
2.223
The committee's assessment of the proposed bar on further
applications by children against article 12 of the Convention on the
Rights of the Child (right of the child to be heard in judicial and
administrative proceedings) is that the measure is incompatible with the
right of the child to be heard in judicial and administrative proceedings.
2.224
In order to address the human rights compatibility issues raised above, the
Migration Act may be amended to provide that prior to applying a statutory bar
on a child preventing a subsequent protection visa application, the department
must consider the age of the child, their relationship with the person who made
the application on their behalf, and whether the previous application was
consistent with the wishes of the child. Any decision to apply a statutory bar
must be reviewable.
Right of persons with disabilities
to be recognised as persons before the law and to the equal enjoyment of legal
capacity
2.225
Article 12 of the Convention on the Rights of Persons with Disabilities
(CRPD) requires states to refrain from denying persons with disabilities their
legal capacity, and to provide them with access to the support necessary to
enable them to make decisions that have legal effect.
Compatibility of the measures with
the right of persons with disabilities to be recognised as persons before the
law and to the equal enjoyment of legal capacity
2.226
As set out above, the bill provides that the bar on further
applications applies even if the person is both a person with a mental
impairment and makes an application on different protection grounds. The right
of persons with disabilities to be recognised as persons before the law and to
the equal enjoyment of legal capacity is not addressed in the statement of
compatibility. The committee notes that it previously considered the MLA
amendments which introduced these restrictions were likely to be incompatible
with the rights of persons with disabilities to be recognised as persons before
the law and to the equal enjoyment of legal capacity.
2.227
Persons with intellectual and mental impairment may be particularly at
risk as asylum seekers. Article 12 of the CRPD affirms that all persons with
disabilities have full legal capacity. While support should be given where
necessary to assist a person with disabilities to exercise their legal
capacity, it cannot operate to deny the person legal capacity by substituting
another person to make decisions on their behalf.
2.228
If a person with an intellectual or mental impairment is not provided
with the support required to make an informed decision about lodging a visa
application and is then barred from making a subsequent visa application
because an application had been lodged 'on their behalf' but without the
participation of the person in that decision-making process (and on different
protection grounds), this limits the right of persons with disabilities to be
recognised as persons before the law and to the equal enjoyment of legal
capacity. This was not addressed in the statement of compatibility.
2.229
The committee therefore requested the Minister for Immigration and
Border Protection's advice on the compatibility of Schedule 3 of the bill with
the right of persons with disabilities to be recognised as persons before the
law and to the equal enjoyment of legal capacity and, particularly, whether the
proposed changes are aimed at achieving a legitimate objective; whether there
is a rational connection between the limitation and that objective; and whether
the limitation is a reasonable and proportionate measure for the achievement of
that objective.
Minister's response
As with the discussion above
concerning the best interests of the child, the proposed amendments apply to
persons who have already made a visa application which has been finally
determined. An assessment of the person's claims will have taken their
particular disability and personal circumstances into account.
The proposed changes are aimed at
ensuring the legitimate objective of ensuring the removal of person (including
persons with disabilities, where appropriate) who have no legal right to remain
in Australia as required by the Migration Act.
The limitation provides the
opportunity for new removal arrangements to be made (likely through a different
transit point) without the delay of the non-application of the limitation, by
preventing them from making a further visa applications unless circumstances
have changed since departure on the aborted removal.
It is reasonable that any bars
imposed before they left that prevent them from making a further visa
application would continue to apply when they are returned to Australia
following travel that is aborted during transit. This applies equally to all
persons including those with disabilities.[74]
Committee response
2.230
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.231
The committee's initial analysis was focused on specific requirements
under the CRPD to ensure supported rather than substituted decision-making.
Persons with intellectual and mental impairment may be particularly at risk as
asylum seekers. Article 12 of the CRPD affirms that all persons with
disabilities have full legal capacity. While support should be given where
necessary to assist a person with disabilities to exercise their legal
capacity, it cannot operate to deny the person legal capacity by substituting
another person to make decisions on their behalf.
2.232
The UN Committee on the Rights of Persons with Disabilities has
considered the basis on which a person is often denied legal capacity, which
includes where a person's decision-making skills are considered to be deficient
(known as the functional approach). It has described this approach as flawed:
The functional approach attempts
to assess mental capacity and deny legal capacity accordingly. It is often
based on whether a person can understand the nature and consequences of a
decision and/or whether he or she can use or weigh the relevant information.
This approach is flawed for two key reasons: (a) it is discriminatorily applied
to people with disabilities; and (b) it presumes to be able to accurately
assess the inner-workings of the human mind and, when the person does not pass
the assessment, it then denies him or her a core human right — the right to
equal recognition before the law. In all of those approaches, a person's
disability and/or decision-making skills are taken as legitimate grounds for
denying his or her legal capacity and lowering his or her status as a person
before the law. Article 12 does not permit such discriminatory denial of legal
capacity, but, rather, requires that support be provided in the exercise of
legal capacity.[75]
2.233
If a person with an intellectual or mental impairment is not provided
with the support required to make an informed decision about lodging a visa
application and is then barred from making a subsequent visa application
because an application had been lodged 'on their behalf' but without the
participation of the person in that decision-making process (and on different
protection grounds), this limits the right of persons with disabilities to be
recognised as persons before the law and to the equal enjoyment of legal
capacity. This was not addressed in the minister's response.
2.234
The committee's assessment of the proposed bar on further
applications by persons with a mental impairment against article 12 of the
Convention on the Rights of Persons with Disabilities (right of persons with
disabilities to be recognised as persons before the law and to the equal
enjoyment of legal capacity) is that the measure is incompatible with
the right of persons with disabilities to be recognised as persons before the
law and to the equal enjoyment of legal capacity.
2.235
In order to address the human rights compatibility issues raised above, the
Migration Act may be amended to provide that prior to applying a statutory bar
preventing a person with an intellectual or mental impairment from making a
subsequent visa application, the department must be satisfied that in the
original application the person was provided with the support required to make
an informed decision about lodging a visa application and was actively involved
in the decision‑making process regarding that visa application. Any
decision to apply a statutory bar must be reviewable.
Migration Amendment (Complementary Protection and Other Measures) Bill 2015
Portfolio: Immigration and Border
Protection
Introduced: House of Representatives, 14 October 2015
Purpose
2.236
The Migration Amendment (Complementary Protection and Other Measures)
Bill 2015 (the bill) seeks to amend the Migration Act 1958 (the
Migration Act) to:
-
amend the statutory complementary protection framework standards
for equivalency with the new statutory refugee framework, as inserted by Part
2 of Schedule 5 to the Migration and Maritime Powers Legislation
Amendment (Resolving the Asylum Legacy Caseload) Act 2014;
-
amend the reference to 'protection obligations' in subsection
36(3) to specify the source of the obligations;
-
amend the definition of 'country' in subsection 5H(1), which
outlines the meaning of 'refugee', to be the same country as the 'receiving
country' as applies in subsection 5(1) of the Migration Act;
-
align the statutory provisions relating to protection in another
country (third country protection) with the definition of 'well-founded fear of
persecution' in section 5J of the Migration Act;
-
amend subsection 36(2C), to remove duplication between
paragraph 36(2C)(b) and subsection 36(1C) in the Migration Act, which both
operate to exclude an applicant from the grant of a protection visa on
character-related grounds;
-
amend subsection 336F(5), which authorises disclosure of
identifying information to foreign countries or entities, to include
information pertaining to unauthorised maritime arrivals who make claims for
protection as a refugee and fall within the circumstances of subsection 36(1C)
of the Migration Act;
-
amend subsection 502(1), which allows the Minister for
Immigration and Border Protection to personally make a decision that is not
reviewable by the Administrative Appeals Tribunal (AAT), to apply to persons
who have been refused the grant of a protection visa on complementary
protection grounds for reasons relating to the character of the person; and
-
amend subsection 503(1), which relates to the exclusion of
certain persons from Australia, to apply to persons who have been refused the
grant of a protection visa on complementary protection grounds for reasons
relating to the character of the person.
2.237
Measures raising human rights concerns or issues are set out below.
Background
2.238
The committee first reported on the bill in its Thirtieth Report of
the 44th Parliament (previous report), and requested
further information from the Minister for Immigration and Border Protection as
to the compatibility of the bill with Australia's international human rights
obligations.[76]
Changes to the statutory framework for complementary protection—real risk
in the entire country
2.239
Australia owes protection obligations under both the International
Covenant on Civil and Political Rights (ICCPR) and the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to
persons who face a real risk of suffering significant harm if removed from
Australia to a receiving country. This is referred to as 'complementary
protection' under the Migration Act.[77]
Significant harm is defined under the Migration Act to refer to torture,
imposition of the death penalty, and other treatment which engages Australia's
non-refoulement obligations under the ICCPR and the CAT.
2.240
Currently, under the Migration Act a person will not be considered to be
entitled to a protection visa on complementary protection grounds if it would
be reasonable for that person to relocate to an area of their home country
where they would not be at risk of significant harm.
2.241
The bill seeks to amend the Act such that a person will not be
considered eligible for protection unless the risk they face relates to all
areas of their home country. That is, if an individual is found to be able to
live without a risk of significant harm in a small part of their home country
they would be ineligible for protection regardless if it would be reasonable or
practicable for them to travel to or live in that area of their home country.
2.242
The committee noted in its previous report that it considers that this
provision engages Australia's non-refoulement obligations as a person who does
not meet the statutory criteria under the Migration Act may be subject to
return to their home country.
Non-refoulement obligations
2.243
Australia's non-refoulement obligations are described above at
paragraphs [2.86] to [2.89].
Compatibility of the measure with Australia's
non-refoulement obligations
2.244
The statement of compatibility acknowledges that Australia's non‑refoulement
obligations are engaged by the bill, but states that:
...the UN Human Rights Committee
(UNHRC) has described the non‑refoulement obligation under the ICCPR as
being engaged only if a person faces a risk of harm in the whole of a country.
In addition, commentary from the UN Committee Against Torture (UNCAT) has
suggested that there must exist a risk [of harm] in the entire territory of the
target State and that there must be no internal flight alternative, thus
acknowledging the same approach should be applied in the consideration of
complementary protection claims regarding torture, as is applied by the
internal relocation principle in the consideration of Refugee Convention
claims. As such, this amendment is compatible with human rights because it
reflects Australia's non-refoulement obligations.[78]
2.245
In its previous report, the committee noted that the weight of
jurisprudence indicates that under international human rights law an 'internal
flight option'—the ability to find safety in one part of your home country—does
not negate an individual's claim for protection against refoulement.[79]
2.246
In removing the requirement that the minister must be satisfied that it
is reasonable for a person to relocate to an area of their home country the
bill would result in a person being ineligible for protection in circumstances
where it is unreasonable or impracticable for them to relocate internally.
2.247
The committee noted further that there is no statutory requirement
obliging a decision maker to take into account whether the person can safely
and legally access an alternative flight option upon returning to the receiving
country. While such matters may be considered as a matter of departmental
policy, this is an insufficiently robust protection for the purposes of
international human rights law. The committee has consistently stated that
where a measure limits a human right, discretionary or administrative
safeguards alone are likely to be insufficient for the purpose of a permissible
limitation under international human rights law.[80]
This is because administrative and discretionary safeguards are less stringent
than the protection of statutory processes and can be amended or removed at any
time.
2.248
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to how the proposed amendments are
compatible with Australia's absolute non-refoulement obligations.
Minister's response
I note the Committee's view that
the Bill would result in a person being ineligible for protection even though
it may not be reasonable for them to relocate internally, and that this would
therefore leave individuals subject to refoulement, in breach of Australia's
international obligations.
It is my intention that, in
assessing whether a person may be personally at a real risk of significant
harm, a consideration of whether the level of risk of harm is one that the
person will face in all areas of the receiving country will no longer encompass
the consideration of whether the relocation is 'reasonable' in light of the
individual circumstances of the person.
In assessing whether it is
reasonable for a person to relocate to another area of the receiving country in
the refugee context, Australian case law indicates that some decision-makers
(including merits review tribunal members) have considered broader issues such
as the practical realities of relocation, which have included considering
diminishment in the quality of life or potential financial hardship of a
protection visa applicant. This goes beyond the intention that Australia's
protection should only be available to persons who face the relevant harm in
all parts of the receiving country and hence cannot access that country's protection.
The Migration Act 1958 (Migration Act) was amended by the Migration
Amendment (Resolving the Asylum Legacy Caseload) Act 2014 to reflect this
intention in the refugee context, and the Migration Amendment (Complementary
Protection and Other Measures) Bill 2015 reflects this intention in the
complementary protection context. This provides certainty to applicants and
decision-makers by providing consistency on this issue.
I am committed to acting in
accordance with Australia's non-refoulement obligations under the International
Covenant on Civil and Political Rights (ICCPR) and the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),
and maintain that while an assessment of whether it is 'reasonable' for an
applicant to relocate to another area within the receiving country is proposed
to be removed by the Bill, what constitutes a real risk that a person will
suffer significant harm under the Migration Act has not changed. When
considering whether a person can relocate to another area, decision-makers will
continue to be required to consider whether a there is a real risk that a
person will suffer significant harm if:
-
the person will be arbitrarily deprived
of his or her life; or
-
the death penalty will be carried
out on the person; or
-
the person will be subjected to
torture; or
-
the person will be subjected to
cruel or inhuman treatment or punishment; or
-
the person will be subjected to
degrading treatment or punishment.
As a matter of policy,
decision-makers are also required to determine whether a real risk of
significant harm exists for a person when considering whether they can safely
or legally access the relocation area from their point of return to the
receiving country, such that it would mitigate a 'real risk' of 'significant
harm' to the person. Notwithstanding that this is not expressed in the Bill,
this policy is consistent with the domestic legal interpretation and has been
applied in the refugee context since the relevant Migration Act provisions were
amended. It will likewise be applied appropriately in the complementary
protection context proposed by the Bill.[81]
Committee response
2.249
The committee thanks the Minister for Immigration and Border Protection
his response.
2.250
The committee notes that in assessing whether a person may be at a real
risk of significant harm, the minister intends that consideration of whether
the level of risk of harm is one that the person will face in all areas of the
receiving country will no longer encompass the consideration of whether
relocation is 'reasonable' in light of the individual circumstances of the
person.
2.251
As the committee noted in its previous report, international human
rights law jurisprudence indicates that internal relocation must be both
reasonable and practicable.[82]
The UNHCR has discussed the meaning of 'well-founded fear' in relation to
internal relocation. In assessing whether a well-founded fear exists, the UNHCR
noted that if 'internal relocation is both possible and reasonable for that
individual, this has a direct bearing on decisions related to the
well-foundedness of the fear'.[83]
2.252
The UNHCR reiterates this position—that relocation must be reasonable—in
its Handbook on Procedures and Criteria for Determining Refugee Status:
The fear of being persecuted need
not always extend to the whole territory of the refugee's country of
nationality. Thus in ethnic clashes or in cases of grave disturbances involving
civil war conditions, persecution of a specific ethnic or national group may
occur in only one part of the country. In such situations, a person will not be
excluded from refugee status merely because he could have sought refuge in
another part of the same country, if under all the circumstances it would not
have been reasonable to expect him to do so.[84]
2.253
For many years, many jurisdictions, including Australia,[85]
Canada,[86]
New Zealand,[87]
and the UK[88]
have adopted the approach set out in the UNHCR Handbook, examining whether
internal relocation is reasonable, or whether it would be unduly harsh to
expect internal relocation. This test applies equally to complementary
protection claims under the ICCPR and the CAT.
2.254
The committee acknowledges that the minister confirms that what
constitutes a real risk that a person will suffer significant harm under the
Migration Act has not changed, and that decision-makers will continue to be
required to consider whether a real risk exists. However, in removing
consideration of whether relocation is 'reasonable', the committee reiterates
its view that the bill risks the return of persons in violation of Australia's
absolute non-refoulement obligations.
2.255
As the European Court of Human Rights explained in relation to
non-removal to torture under Article 3 of the European Convention on Human
Rights:
...reliance on an internal flight
alternative does not affect the responsibility of the expelling Contracting
State to ensure that the applicant is not, as a result of its decision to
expel, exposed to treatment contrary to Article 3 of the Convention. Therefore,
as a precondition of relying on an internal flight alternative, certain
guarantees have to be in place: the person to be expelled must be able to
travel to the area concerned, gain admittance and settle there, failing which
an issue under Article 3 may arise, the more so if in the absence of such
guarantees there is a possibility of his ending up in a part of the country of
origin where he may be subjected to ill- treatment.[89]
2.256
The committee welcomes the minister's advice that, as a matter of
policy, decision-makers will be required to take into account whether the
person can safely and legally access an alternative flight option upon
returning to the receiving country. However, the committee notes that the minister
acknowledges that such a requirement 'is not expressed in the Bill'.[90]
2.257
The committee reiterates its view this is an insufficiently robust
protection to ensure that a person is not returned to significant harm, for the
purposes of international human right law, as there will be no enforceable
obligation on the minister and his department to consider the reasonableness or
practicability of any relocation.
2.258
The committee's assessment of the removal of the requirement that a
decision-maker must consider whether internal relocation is 'reasonable' when
determining whether a person may be at a real risk of significant harm against
article 3(1) of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, articles 6(1) and 7 of the International Covenant
on Civil and Political Rights; and Second Optional Protocol to the
International Covenant on Civil and Political Rights Aiming at the Abolition of
the Death Penalty (non-refoulement) is that the proposed amendments would
insufficiently protect against refoulement of persons to whom Australia owes
protection obligations.
2.259
The proposed amendment would remove the statutory requirement that
decision-makers determine whether it is reasonable for a person applying for a
contemporary protection visa to travel, gain admittance and settle in an area
where a real risk of harm does not exist, and thereby creates risks that
decisions will be made in violation of Australia's non-refoulement obligations.
For these reasons, the committee considers that the bill is incompatible
with international human rights law.
2.260
In order to address the human rights compatibility issues raised above,
the Migration Act could be amended to define what constitutes 'reasonable'
relocation, in a manner consistent with international human rights law.
Changes to the statutory framework for complementary protection—behaviour
modification
2.261
The bill would also remove Australia's protection obligations in
circumstances where an individual could avoid significant harm if the person
could take reasonable steps to modify their behaviour. A person would not be
required to modify their behaviour if to do so would conflict with a
characteristic that is fundamental to the person's identity or conscience
including their religion, race, disability status or sexual orientation.
2.262
The committee noted in its previous report that it considers that this
provision engages Australia's non-refoulement obligations as an individual, who
would otherwise be granted protection in Australia, may be deemed ineligible if
they could modify their behaviour in a way that was considered not to be in
conflict with their fundamental identity.
Non-refoulement obligations
2.263
Australia's non-refoulement obligations are described above at
paragraphs [2.86] to [2.89].
Compatibility of the measure with Australia's
non-refoulement obligations
2.264
The statement of compatibility provides that:
In the complementary protection
context, a person may be able to modify their behaviour in a manner that would
not conflict with their identity or belief system (for example, by refraining
from engaging in an occupation that carries risk where it is reasonable for the
person to find another occupation) and could thereby avoid the risk of
significant harm. If this is the case, they should not necessarily be provided
with protection, as their return would not itself engage non-refoulement obligations
– the risk of harm would only arise if they chose to undertake certain actions.
This amendment is therefore consistent with Australia's non-refoulement obligations.[91]
2.265
The jurisprudence does not support the position outlined in the
statement of compatibility. The obligation to protect against refoulement is
not contingent on the oppressed avoiding conduct that might upset their
oppressors.[92]
The courts have found that persecution does not cease to be persecution simply
because those persecuted can eliminate the harm by taking avoiding action
within the country of nationality.[93]
This principle applies equally in the refugee assessment space as it does in
assessing complementary protection under the ICCPR and CAT.
2.266
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to how the amendment is compatible with
Australia's absolute non-refoulement obligations.
Minister's response
I note the Committee's concerns
regarding proposed new subsection 5LAA(5) of the Bill, which provides that
there is not a real risk of significant harm if a person could take reasonable
steps to modify their behaviour so as to avoid a real risk of significant harm,
other than a modification that includes a modification that would conflict with
a characteristic that is fundamental to the person's identity or conscience, or
conceal an innate or immutable characteristic.
While I acknowledge the
Committee's views, at paragraph 1.111, that the obligation to protect
against non-refoulement is not contingent on the oppressed avoiding conduct
that might upset their oppressors, in introducing this provision into the
statutory complementary protection context, my intent is to reflect that some
harm can be brought about by a person's own voluntary actions, and that in some
circumstances, it is reasonable to expect a person not to engage in such
action, so as to avoid a real risk of significant harm. If a person is able to
modify their behaviour in a manner that does not conflict with their core
identity or belief system, as mentioned in proposed subsection 5LAA(5), and in
doing so, could avoid a real risk of significant harm, then they should not
necessarily be provided with protection, as their return would not itself
engage non-refoulement obligations. The risk of harm would only arise if they
chose to undertake certain actions. This amendment is therefore consistent with
non‑refoulement obligations.
To support the position that this
provision is concerned with reasonable modification only, the Bill includes an
express list of modifications, at new paragraph 5LAA(5)(c), that a person
cannot be required to do. These are:
-
alter his or her religious
beliefs, including by renouncing a religious conversion, or conceal his or her
true religious beliefs, or cease to be involved in the practice of his or her
faith;
-
conceal his or her true race,
ethnicity, nationality or country of origin;
-
alter his or her political beliefs
or conceal his or her true political beliefs;
-
conceal a physical, psychological
or intellectual disability;
-
enter into or remain in a marriage
to which that person is opposed, or accept the forced marriage of a child;
-
alter his or her sexual
orientation or gender identity or conceal his or her true sexual orientation,
gender identity or intersex status
I respectfully submit my view
that the Committee is inaccurate in its assertion, at paragraph 1.113, that a
person could be required to not attend or participate in any political
activity, such as attending a rally, if such conduct is not considered to be of
fundamental importance to the person's conscience. In accordance with new
subparagraph 5LAA(5)(c)(iii), the Bill does not require modification that would
alter or conceal a person's political beliefs.
Furthermore, I also respectfully
submit that the Committee's claim that a person who has previously worked as a
journalist in their home country could be required to cease work as a
journalist if the content of their published work risked attracting
persecution, is inaccurate. Proposed subsection 5LAA(5) is concerned with
reasonable modification of future behaviour and takes into account what
reasonable steps a person could objectively take to avoid a risk upon returning
to their receiving country, not just what they would do on their return (for
example, a person refraining from engaging in an occupation that carries risk
where it is reasonable for the person to find another occupation). If a person
were to claim protection on the basis that their published work as a journalist
would attract persecution, such claims would be assessed against both the
refugee and complementary protection provisions in the Migration Act in order
to determine whether Australia's non-refoulement obligations under the Refugees
Convention, or the ICCPR or the CAT are engaged. Similarly, a person would not
be required to cease work as a journalist, if to do so would require the
altering or concealment of their political beliefs.
While I acknowledge that this
provision engages human rights that relate to Australia's non-refoulement
obligations under the ICCPR and the CAT (including articles 18(1) and 19 of the
ICCPR), I maintain that it is possible to limit certain rights, as long as the
limitation is reasonable, proportionate and adapted to achieve a legitimate
objective. In relation to these amendments, my objective is to ensure that only
those who face a real risk of significant harm, as a necessary and foreseeable
consequence of their removal from Australia to a receiving country, are granted
a protection visa on complementary protection grounds. In this context, I
believe that it is reasonable to expect, in some circumstances, for a person
not to engage in particular actions so as to avoid a real risk of significant
harm, noting that this does not apply to a modification of behaviour that
conflicts with their identity or core belief system. If a person is able to
reasonably modify their behaviour in this way, they do not require Australia's
protection as their return would not place them at risk of harm and therefore
not engage Australia's non-refoulement obligations – a risk of harm would only
arise if they chose to undertake certain actions. I confirm that Australia does
not intend to resile from its non-refoulement obligations.
This provision will require
decision-makers to objectively consider whether a person could take reasonable
steps to modify their behaviour, so as to avoid a real risk of significant
harm, which will be assessed on a case-by‑case basis. Any modification
would also be limited to what is reasonable in the person's individual
circumstances.
The reasons supporting this view
have been set out in the Statement of Compatibility with Human Rights, attached
to the Explanatory Memorandum to the Bill, and I reiterate those reasons here.[94]
Committee response
2.267
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.268
The committee welcomes the minister's commitment that Australia does not
intend to resile from its non-refoulement obligations. Nevertheless, the
committee reiterates that under the bill as drafted, significant new statutory
hurdles have been introduced in Australia's protection regime.
2.269
At the outset, the committee notes that the proposed amendment
effectively puts the onus on an applicant to avoid the risk of actions that are
violations of international human rights law. This is a position fundamentally
at odds with international human rights law.
2.270
Further, under international refugee law, a person cannot be denied
complementary protection status based on a requirement that she or he change or
conceal her or his identity, opinions or characteristics in order to avoid
persecution.[95]
The High Court of Australia has held that persecution does not cease to be
persecution 'because those persecuted are able to eliminate the harm by taking
action to avoid it'.[96]
2.271
The committee acknowledges that the bill includes an express list of
modifications that a person cannot be required to do, including conceal or
alter a person's core political beliefs. However, notwithstanding the minister's
response, the committee considers that a person could be required to not attend
or participate in political activity, such as attending a rally, if such
conduct is not considered to be of fundamental importance to the person's
conscience. Indeed, the bill requires an assessment of not only whether a
person could refrain from certain actions but also take positive actions to
conceal aspects of their identity or conscience that are not assessed as
fundamental. It is not clear how a decision-maker will assess this standard in
practice.
2.272
On the question of concealment generally, the committee notes that in
2014, the High Court in Minister for Immigration and Border Protection v
SZSCA, confirmed that focussing on an assumption about how the risk of
persecution may be avoided distracts a decision-maker from the task of
determining whether there is a real chance of persecution.[97]
2.273
The committee maintains that this is the central question a decision‑maker
should ask, not whether the risk of persecution could be avoided by the person
claiming protection concealing certain non-fundamental aspects of him or
herself.
2.274
The committee's assessment of section 5LAA(5), which would
remove Australia's protection obligations in circumstances where an individual
could avoid significant harm if the person could take reasonable steps to
modify their behaviour, against article 3(1) of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, articles
6(1) and 7 of the International Covenant on Civil and Political Rights; and
Second Optional Protocol to the International Covenant on Civil and Political
Rights Aiming at the Abolition of the Death Penalty (non-refoulement) is that
it creates an exception to protection under the Migration Act that is not
supported by, and is at odds with, international human rights law.
2.275
As a practical concern, the proposed amendment creates hurdles to
establishing a need for protection that are difficult to determine, by drawing
decision-makers into an assessment of what may constitute a fundamental aspect
of an applicant's identity or conscience, and thereby creates risks that
decisions are made in violation of Australia's non-refoulement obligations. For
these reasons, the committee considers that section 5LAA(5) is incompatible
with international human rights law.
2.276
In order to address the human rights compatibility issues raised above,
the Migration Act could be amended to require a departmental review of all non‑refoulement
claims prior to any person's removal from Australia and that any decision taken
by the department following such a review is at a minimum reviewable by the
Administrative Appeals Tribunal.
Excluded persons
2.277
Currently, section 502 of the Migration Act provides that the Minister
for Immigration and Border Protection may declare a person to be an excluded
person on character grounds. An excluded person may not seek merits review of a
decision at the Administrative Appeals Tribunal to deny their protection visa
application. This provision currently only applies to persons who have been
denied a protection visa on refugee grounds and not those who have applied for
a protection visa on the grounds of complementary protection. This bill would
extend the application of section 502 to individuals seeking a protection visa
on the grounds of complementary protection.
2.278
In its previous report, the committee considered that this amendment, in
removing a person's ability to seek merits review of a decision to refuse a
visa on character grounds, engages the protection against refoulement,
including the right to an effective remedy. Effective and impartial review by a
court or tribunal of decisions to deport or remove a person is integral to
complying with non-refoulement obligations.
Non-refoulement obligations
2.279
Australia's non-refoulement obligations are described above at
paragraphs [2.86] to [2.89].
Compatibility of the measure with Australia's
non-refoulement obligations
2.280
The statement of compatibility explains that:
While merits review can be an
important safeguard, there is no express requirement under the ICCPR or the CAT
that it is required in the assessment of non-refoulement obligations. Anyone
who is found through visa or Ministerial intervention processes to engage
Australia's non refoulement obligations will not be removed in breach of those
obligations. All persons impacted by the personal decisions made by the
Minister will remain able to access judicial review which satisfies the
obligation in Article 13 [ICCPR] to have review by a competent authority.[98]
2.281
In its previous report, the committee agreed that there is no express
requirement specifically for merits review in the articles of the relevant
conventions or jurisprudence relating to obligations of non‑refoulement.
However, the committee noted its view that merits review of such decisions is
required to comply with the obligation under international law for effective
review, based on its consistent analysis of how the obligation applies, and may
be fulfilled, in the Australian domestic legal context.
2.282
The committee considered that judicial review is not sufficient to
fulfil the international standard required of 'effective review', where it is
only available on a number of restricted grounds of review that do not relate
to whether that decision was the correct or preferable decision.
2.283
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to how the amendment is compatible with
Australia's absolute non-refoulement obligations.
Minister's response
I note the Committee's view that
the proposed amendment to subsection 502(1) in the Bill, in removing a person's
ability to seek merits review of a decision to refuse a visa on
character-related grounds, engages the protection against refoulement,
including the right to an effective remedy.
Section 502 of the Migration Act
provides me with the power, in certain circumstances, to declare a person to be
an 'excluded person' and therefore, in this context, a person is not able to
seek merits review of a decision at the Administrative Appeals Tribunal. These
circumstances apply where I intend to make a personal decision to refuse to
grant or cancel a protection visa on character related grounds and require me
to decide that, because of the seriousness of the circumstances giving rise to
the making of that decision, it is in the national interest that the person be
declared an excluded person.
Currently section 502 applies in
respect of persons who have been refused the grant of a protection visa on
refugee grounds for reasons relating to the character of the person. I now
consider it appropriate to extend the scope of section 502 to also apply to
persons who have been refused the grant of a protection visa on complementary
protection grounds for reasons relating to the character of the person.
This provision provides that any
personal decision of mine is protected from merits review if the decision is
made in the national interest, and it also requires me to cause notice of the
making of the decision to be tabled in both Houses of Parliament within 15
sittings days after the day of my decision. It is anticipated that such
decisions will be rarely made, but if they are made on national interest
grounds, such decisions will not be reviewable by the AAT. Decisions to refuse
to grant or cancel a protection visa will involve my consideration of the
national interest.
I note the Committee's concerns
that the provision to protect my personal decisions from merits review may
engage and limit the right to an effective remedy, as the person will not enjoy
the same rights to merits review as a person who was the subject of a decision
by a delegate of the Minister. These amendments present a reasonable response
to achieving a legitimate objective, which is the safety of the Australian
community, noting that the amendments only apply in respect of persons who are
refused the grant of a complementary protection visa on character related
grounds. In addition:
-
my personal decision will be
consequent to an administrative process that is undertaken within the
administrative law framework and in accordance with principles of natural
justice; and
-
judicial review is still
available. In a judicial review action, the Court would consider whether or not
the power given by the Migration Act has been properly exercised. For a
discretionary power such as personal decisions of mine under the Migration Act,
this could include consideration of whether the power has been exercised in a
reasonable manner. It could also include consideration of whether natural
justice has been afforded and whether the reasons given provide an evident and
intelligible justification for why the balancing of these factors led to the
outcome which was reached.
I respectfully disagree with the
Committee's view, at paragraph 1.128, that 'judicial review is not sufficient
to fulfil the international standard required of "effective review",
because it is only available on a number of restricted grounds of review that
do not relate to whether that decision was the correct or preferable decision'.
The entire purpose of judicial review is to assess whether the primary decision
was legally correct, and to determine any error or unfairness in the
decision-making process. Judicial review remains an effective mechanism by
which administrative decisions, which includes decisions in relation to
protection visa applications, are assessed by a higher authority. Although I
agree that the intent of judicial review may not be to avoid harm to the
individual concerned, it does not mean that it is not an appropriate means by
which this is assessed.
In introducing this proposed
amendment, I am not seeking to resile from or limit Australia's non-refoulement
obligations, nor will it affect the substance of Australia's adherence to these
obligations. Anyone who is found through visa or Ministerial intervention
processes to engage Australia's non refoulement obligations will not be removed
in breach of those obligations. All persons impacted by the personal decisions
made by me will remain able to access judicial review which satisfies
Australia's obligation under Article 13 of the ICCPR to have review by a
competent authority.[99]
Committee response
2.284
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.285
The committee welcomes the minister's commitment to not resile from or
limit Australia's non-refoulement obligations. However, the committee remains
concerned that judicial review as provided in relation to section 502 is
insufficient to fulfil the international standard of effective review.
2.286
Treaty monitoring bodies have found that the provision of effective and
impartial review of non-refoulement decisions by a court or tribunal is
integral to complying with the obligation of non-refoulement under the ICCPR
and CAT. For example, the UN Committee against Torture in Agiza v Sweden
found:
The nature of refoulement is
such...that an allegation of breach of...[the obligation of non-refoulement in]
article [3 of the CAT] relates to a future expulsion or removal; accordingly,
the right to an effective remedy... requires, in this context, an opportunity for
effective, independent and impartial review of the decision to expel or
remove...The Committee's previous jurisprudence has been consistent with this
view of the requirements of article 3, having found an inability to contest an
expulsion decision before an independent authority, in that case the courts, to
be relevant to a finding of a violation of article 3.[100]
2.287
Similarly, the UN Committee against Torture in Josu Arkauz Arana v
France found that the deportation of a person under an administrative
procedure without the possibility of judicial intervention was a violation of
article 3 of the CAT.[101]
2.288
In relation to the ICCPR, in Alzery v Sweden the UN Human Rights
Committee emphasised that the provision of effective and impartial review of
non-refoulement decisions by a court or tribunal is integral to complying with
the obligation of non‑refoulement (as contained in article 7 of the
ICCPR):
As to...the absence of independent
review of the Cabinet's decision to expel, given the presence of an arguable
risk of torture, the...[right to an effective remedy and the prohibition on
torture in articles 2 and 7 of the ICCPR require] an effective remedy for violations
of the latter provision. By the nature of refoulement, effective review of a
decision to expel to an arguable risk of torture must have an opportunity to
take place prior to expulsion, in order to avoid irreparable harm to the
individual and rendering the review otiose and devoid of meaning. The absence
of any opportunity for effective, independent review of the decision to expel
in...[this] case accordingly amounted to a breach of article 7, read in
conjunction with article 2 of the [ICCPR].[102]
2.289
The committee notes that these statements are persuasive as
interpretations of international human rights law that are consistent with the
proper interpretation of treaties as set out in the Vienna Convention on the
Law of Treaties (VCLT).[103]
2.290
The case law quoted above therefore establishes the proposition that,
while merits review is not expressly required, there is strict requirement for
'effective review' of non-refoulement decisions.
2.291
Applied to the Australian context, judicial review in Australia is
governed by the Administrative Decisions (Judicial Review) Act 1977, and
represents a considerably limited form of review in that it allows a court to
consider only whether the decision was lawful (that is, within the power of the
decision-maker as provided by statute). The court cannot undertake a
substantive review that engages with the facts (that is, merits review) of a
particular case to determine whether the case was correctly decided.
2.292
Accordingly, in the Australian context, the committee remains of the
view that judicial review is not sufficient to fulfil the international
standard required of 'effective review', because it is only available on
restricted grounds of review that do not relate to whether that decision was
the correct decision on the available evidence. To illustrate, judicial review
of the minister's decision to deny a complementary visa application will not
extend to review of whether a change in factual circumstances in the
applicant's favour means that the correct decision is to issue a complementary
protection visa. It should be recalled that the purpose of effective review of
non-refoulement decisions under international law is to 'avoid irreparable harm
to the individual'.
2.293
By contrast, merits review allows a person or entity other than the primary
decision-maker to reconsider the facts, law and policy aspects of the original
decision and to determine what is the correct or preferable decision.
2.294
In light of the above, the committee reiterates that, in the Australian
context, the requirement for independent, effective and impartial review of
non-refoulement decisions is not met by the availability of judicial review,
but may be fulfilled by merits review.
2.295
The committee's assessment of the extension of section 502, providing
that the minister may declare a person to be an excluded person on character
grounds, and thus unable to seek merits review of a decision at the
Administrative Appeals Tribunal to deny their complementary protection visa
application, against article 3(1) of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, articles 6(1) and 7
of the International Covenant on Civil and Political Rights; and the Second
Optional Protocol to the International Covenant on Civil and Political Rights
Aiming at the Abolition of the Death Penalty (non-refoulement) is that the
unavailability of merits review of the minister's decision fails to meet the
requirement for independent, effective and impartial review of non-refoulement
decisions. Accordingly, the committee considers that this provision is
incompatible with international human rights law.
2.296
In order to address the human rights compatibility issues raised above,
the Migration Act could be amended to require a departmental review of all non‑refoulement
claims prior to any person's removal from Australia and that any decision taken
by the department following such a review is at a minimum reviewable by the
Administrative Appeals Tribunal.
Migration Amendment (Conversion of Protection Visa Applications) Regulation
2015 [F2015L01461]
Portfolio: Immigration and Border
Protection
Authorising
legislation: Migration Act 1958
Last day to disallow: 3 December 2015 (Senate)
Purpose
2.297
The Migration Amendment (Conversion of Protection Visa Applications)
Regulation 2015 (the regulation) amends the Migration Regulations 1994 to
confirm that the effect of regulation 2.08F is to provide that any application
made by certain visa applicants for a Permanent Protection Visa (PPV) will be
converted into an application for a Temporary Protection Visa (TPV).
2.298
Measures raising human rights concerns or issues are set out below.
Background
2.299
The instrument concerns the operation of regulation 2.08F of the
Migration Regulations 1994. This regulation was inserted by the Migration
and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy
Caseload) Act 2014 (RALC Act), which commenced on 16 December 2014.
2.300
The committee considered the Migration and Maritime Powers Legislation
Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (RALC bill)
in its Fourteenth Report of the 44th Parliament.[104]
2.301
The committee first reported on the regulation in its Thirtieth
Report of the 44th Parliament (previous report), and
requested further information from the Minister for Immigration and Border
Protection as to the compatibility of the regulation with Australia's
international human rights obligations.[105]
Conversion of permanent protection visa applications into temporary
protection visa applications
2.302
The regulation amends regulation 2.08F of the Migration Regulations 2004,
which provides that certain applications for a PPV made before 16 December
2014 are to be converted to applications for a TPV. The amendment will affect
persons whose application for a PPV was made before 16 December 2014
and:
-
has been the subject of a court order requiring the minister to
reconsider the application;
-
has been remitted to the minister for reconsideration by the
Administrative Appeals Tribunal; or
-
had not been decided by the minister before 16 December 2014 (due
to, for example, a remittal from the Administrative Appeals Tribunal or a
court).
2.303
The effect of the conversion is that people covered by the amendment who
have applied for a PPV will be considered to have never applied for a PPV and
will be taken to have applied for a TPV, and will only be granted temporary
protection in Australia if found to engage Australia's protection obligations.
2.304
In its previous report, the committee considered that the regulation, in
converting PPV applications to TPV applications, engages a number of human
rights, including non-refoulement obligations; the right to health; the right
to protection of the family; the obligation to consider the best interests of
the child; and the right to freedom of movement. These rights are considered in
detail below.
Non-refoulement obligations
2.305
Australia's non-refoulement obligations are described above at
paragraphs [2.86] to [2.89].
Compatibility of the measure with Australia's
non-refoulement obligations
2.306
The changes under the regulation provide for the conversion of existing
applications for PPVs into applications for TPVs.
2.307
TPVs are granted for a period of up to three years at one time, rather
than being permanent as is the case with PPVs.[106] The statement of
compatibility acknowledges that TPVs engage Australia's non-refoulement
obligations, but states that the amendments:
...will not result in the return or
removal of persons found to engage Australia's protection obligations in
contravention of its non-refoulement obligations. The position of the
Government has always been that grant of a protection visa is not the only way
of giving protection to persons who engage Australia's protection obligations,
and that grant of a temporary visa is a viable alternative.[107]
2.308
The statement of compatibility did not address whether there will be
sufficient safeguards in place to ensure that any reapplication process takes
account of the risk of refoulement if the person is denied continuing
protection. In addition, while the statement of compatibility states that the
grant of a visa is not the only way of giving protection to persons, the
committee reiterates its long-standing view that administrative and
discretionary safeguards are less stringent than the protection of statutory
processes, and are insufficient in and of themselves to satisfy the standards
of 'independent, effective and impartial' review required to comply with
Australia's non-refoulement obligations under the ICCPR and the CAT.[108]
2.309
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to how the proposed amendments are
compatible with Australia's absolute non-refoulement obligations.
Minister's response
The amendments to regulation
2.08F will not result in the return or removal of a person found to engage
Australia's protection obligations in contravention of its non-refoulement
obligations under the CAT and ICCPR. The grant of a permanent visa is not the
only way of compliance with Australia's non-refoulement obligations. Temporary
protection visa (TPV) holders who continue to claim Australia's protection are
able to seek a further TPV or Safe Haven Enterprise Visa (SHEV) when their
initial visa will expire. The Government does not regard its protection
obligations as automatically ceasing when a visa expires. Where protection
continues to be sought, cessation of the visa triggers a new assessment of
these obligations in the context of current individual and country
circumstances. Applicants who continue to engage Australia's protection
obligations and satisfy other visa criteria will be granted a further TPV or a
SHEV. An applicant who engages Australia's nonrefoulement obligations will not
be returned or removed in contravention of these obligations.[109]
Committee response
2.310
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.311
The committee appreciates the government does not regard its protection
obligations as automatically ceasing when a visa expires. However, the
minister's response does not indicate whether there will be sufficient
safeguards in place to ensure that any reapplication process takes account of
the risk of refoulement if the person is denied continuing protection.
2.312
TPVs require refugees and complementary protection claimants to prove
afresh their claims for protection every three years. The international legal
framework does provide for the cessation of refugee status or protection
obligations where, for example, the conditions in the person's country of
origin have materially altered such that the reasons for a person becoming a
refugee have ceased to exist. However, as noted by the United Nations High
Commissioner for Refugees, the international protection regime 'does not
envisage a potential loss of status triggered by the expiration of domestic
visa arrangements,'[110]
which is to say the expiry of a visa should not, of itself, affect a person's
refugee status.
2.313
Indeed, under international human rights law the burden of proof in
determining whether conditions in the person's country of origin have
materially altered such that protection is no longer required rests with the
asylum state.[111]
That this is the correct question at international human rights law was
identified by Allsop J in NBGM v Minister for Immigration and Multicultural
and Indigenous Affairs:
The approach is not to ask
whether a claim of such a well-founded fear has been made out, but to ask
whether, in respect of someone who has been recognised as a refugee (that is
who has made out that claim), circumstances have so changed as to warrant the
conclusion that the well-founded fear which previously existed can no longer be
maintained as a basis for refusing to avail himself or herself of the
protection of the country of nationality and, so, that the protection of the
Convention should cease. A lack of demonstrable clarity in the reality and
durability of the change in relevant circumstances will lead to the grounds for
cessation not being established.[112]
2.314
TPVs reverse the burden of proof and require TPV applicants to prove
their need for protection a fresh every three years.
2.315
The committee's assessment of the conversion of Permanent Protection
Visa applications into Temporary Protection Visa applications against article
3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, articles 6(1) and 7 of the International Covenant on
Civil and Political Rights; and the Second Optional Protocol to the
International Covenant on Civil and Political Rights Aiming at the Abolition of
the Death Penalty (non‑refoulement) is that the measure is incompatible
with Australia's obligations under international human rights law. The measure
places the burden of proof on applicants to demonstrate that conditions in
their country of origin have not materially changed.
2.316
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to provide a presumption in favour of renewing
a TPV application. This presumption could be defeated in circumstances where
the Australian government can prove that the conditions in the person's country
of origin have materially altered such that the reasons for a person becoming a
refugee have ceased to exist.
Right to health
2.317
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).
2.318
Under article 2(1) of the ICESCR, Australia has certain obligations in
relation to the right to health. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps that
might affect the right;
-
the obligation to ensure the right is made available in a
non-discriminatory way; and
-
the obligation to take reasonable measures within its available
resources to progressively secure broader enjoyment of the right.
2.319
Under article 4 of the ICESCR, economic, social and cultural rights may
be subject only to such limitations as are determined by law and compatible
with the nature of those rights, and solely for the purpose of promoting the
general welfare in a democratic society. Such limitations must be proportionate
to the achievement of a legitimate objective, and must be the least restrictive
alternative where several types of limitations are available.
Compatibility of the measure with
the right to health
2.320
As noted above, the changes made by the regulation confirm the
conversion of existing applications for PPVs into applications for TPVs.
2.321
The right to health was not addressed in the statement of compatibility
for the regulation, and instead the statement of compatibility refers to the
discussion of these issues in the statement of compatibility for the RALC bill.
The statement of compatibility for the RALC bill noted that, under the new
arrangements, people who were found to engage Australia's non-refoulement
obligations would be granted a TPV for a period of up to three years at one
time (rather than a permanent protection visa).[113] The statement of
compatibility noted that the right to health was engaged by the amendments, and
that TPV holders are entitled to access Medicare and the Australian public
health system.[114]
2.322
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.
2.323
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to how the proposed amendments are
compatible with the right to health.
Minister's response
The legislation converting
permanent protection visa applications to temporary protection visa
applications is aimed at achieving the legitimate objectives of dissuading
people from taking potentially life threatening journeys to Australia, as well
as the need to maintain the integrity of Australia's migration system and
protect the national interest. Permanent protection visas may be marketed by
people smugglers as motivators for unauthorised maritime entry to Australia.
I note the committee's concerns
regarding possible mental health problems for TPV and SHEV holders, but
consider that there is a rational connection between any limitations this
policy may place on the right to health and achieving these objectives, and
that these are reasonable and proportionate measures. As outlined in the
Statement of Compatibility with human rights as set out in the Explanatory
Statement to the Regulation, all TPV and SHEV holders have access to Medicare
and mainstream medical services. In addition, they are able to access:
-
The Government's Programme of
Assistance for Survivors of Torture and Trauma (PASTI). PASTI provides direct
counselling and related support services, including advocacy and referrals to
mainstream health and related services;
- PASTI has established rural, regional and remote
outreach services to enable survivors of torture and trauma to access services
outside metropolitan areas;
-
The Government's Better Access
initiative to receive rebates through Medicare should they wish to access selected
mental health services provided by general practitioners, psychiatrists,
psychologists and eligible social workers and occupational therapists; and
-
The Mental Health Service in Rural
and Remote areas (MHSRRA), which provides rural and remote areas with more
allied and nursing mental health services. The MHSRAA enables survivors of
torture and trauma to access these services in areas with lower levels of
mental health services.
Given that TPV and SHEV holders
have access to Medicare and mainstream health services, as well as the
additional services identified above, any limitation on a temporary visa
holder's right to health is mitigated by the availability of these services,
and is reasonable and proportionate to the objective of deterring people form
making dangerous boat journeys to Australia.[115]
Committee response
2.324
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.325
The committee accepts that in light of the potentially life-threatening
journey, deterring people from making dangerous boat journeys to Australia is a
legitimate objective. The committee also accepts that the need to maintain the
integrity of Australia's migration system, as well as protect the national
interest, are legitimate objectives.
2.326
The minister's response notes that PPVs may be marketed by people
smugglers as motivators for unauthorised maritime entry to Australia. However
the minister provides no evidence that this is the case. As noted in its
previous report and repeated above, the Attorney-General's Department's
guidance on the preparation of statements of compatibility states that the
'existence of a legitimate objective must be identified clearly with supporting
reasons and, generally, empirical data to demonstrate that [it is] important'.
2.327
In the absence of empirical data or evidence that PPVs are marketed by
people smugglers to encourage individuals to attempt the dangerous boat journey
to Australia, the committee is unable to agree that the measure is rationally
connected to the objective sought.
2.328
However, even assuming that the measure is rationally connected to the
objective sought, it is unclear if the limitations are a proportionate way to
achieve it.
2.329
The committee acknowledges that TPV and Safe Haven Enterprise Visa
(SHEV) holders have access to Medicare, mainstream health services, and the
additional targeted health services identified by the minister.
2.330
Nevertheless, the committee reiterates its comments from its previous
report where it emphasised that the practical operation and consequences of
TPVs may have significant adverse consequences for the health of TPV holders.
Health services designed to mitigate the potentially serious adverse health
effects arising from the TPV regime may alleviate some problems but they cannot
appropriately resolve the danger inherent in the TPV regime.
2.331
TPVs require refugees to prove afresh their claims for protection every
three years. Research shows that TPVs lead to insecurity and uncertainty for
refugees which, in turn, may cause or exacerbate existing mental health
problems, or cause anxiety and psychological suffering. Such research indicates
that restrictions on family reunion places further stress on TPV holders which
may lead to mental health problems.[116]
2.332
This regulation expands the class of people who would become TPV
holders, rather than holders of a PPV, and as such, engages and limits the
right to health, which includes mental health.
2.333
The committee notes further that while access to Medicare and mainstream
health services is clearly an important aspect of protecting the right to
health, it does not fully mitigate against the health-related harm
(particularly psychological harm) that may be caused to individuals through the
issuing of TPVs rather than providing permanent protection. Neither do the
additional targeted health services identified by the minister.
2.334
The committee's assessment of the conversion of Permanent Protection
Visa applications into Temporary Protection Visa applications against article
12(1) of the International Covenant on Economic, Social and Cultural Rights is
that the measure is incompatible with Australia's obligations under international
human rights law.
2.335
As set out above, the minister's response does not sufficiently
justify the limitation on the right to health as rationally connected to the
objective sought. The minister provides no evidence that people smugglers
market permanent protection visas as motivators for unauthorised maritime entry
to Australia. Further, as set out above, the minister's response does not
sufficiently justify the amendment as a proportionate limitation on the right
to health. Accordingly, the committee considers that the changes made by the
regulation to confirm the conversion of existing Permanent Protection Visa
applications into Temporary Protection Visa applications are incompatible with
the right to health.
2.336
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to ensure that a presumption in favour of
renewing a TPV application exists. In addition, health services specifically
targeted at TPV holders may be extended.
Right to protection of the family
and obligation to consider the best interests of the child
2.337
The right to respect for the family is protected by articles 17 and 23
of the ICCPR and article 10 of the ICESCR. Under these articles, the family is
recognised as the natural and fundamental group unit of society and, as such,
is entitled to protection.
2.338
An important element of protection of the family, arising from the
prohibition under article 17 of the ICCPR against unlawful or arbitrary
interference with family, is to ensure family members are not involuntarily
separated from one another. Laws and measures which prevent family members from
being together, impose long periods of separation, or forcibly remove children
from their parents, will engage this right.
2.339
Under the Convention on the Rights of the Child (CRC), Australia is
required to ensure that, in all actions concerning children, the best interests
of the child are a primary consideration.[117]
2.340
This principle requires active measures to protect children's rights and
promote their survival, growth, and wellbeing, as well as measures to support
and assist parents and others who have day-to-day responsibility for ensuring
recognition of children's rights. It requires legislative, administrative and
judicial bodies and institutions to systematically consider how children's
rights and interests are or will be affected directly or indirectly by their
decisions and actions.[118]
2.341
The committee notes that, while there is no universal right to family
reunification, article 10 of the CRC nevertheless obliges Australia to deal
with applications by minors for family reunification in a positive, humane and
expeditious manner. This obligation is consistent with articles 17 and 23 of
the ICCPR, which prohibit interference with the family, and require family
unity to be protected by society and the state.
Compatibility of the measure with
the right to protection of the family and the obligation to consider the best
interests of the child
2.342
The statement of compatibility for the RALC bill explained that:
The temporary protection regime
provides that refugees granted temporary protection visas are not eligible to sponsor
family members.[119]
2.343
This has the consequence that a person holding a TPV cannot
access family reunion and, if separated from their close family members, will
remain so separated while holding a TPV. Converting all PPV applications into
TPV applications will mean that those granted a TPV will be unable to access
family reunion, regardless of whether this would result in permanent family
separation and whether this is in the best interests of the child.
2.344
In its previous report the committee noted that the right to protection
of the family and the obligation to consider the best interests of the child as
a primary consideration may only be limited if the measure is reasonable,
necessary and proportionate in pursuit of a legitimate objective.
2.345
The statements of compatibility for both the RALC bill and this
regulation do not address these issues. As set out above, the committee's usual
expectation where a limitation on a right is proposed is that the statement of
compatibility provide an assessment of whether the limitation is reasonable,
necessary, and proportionate to achieving a legitimate objective. The committee
notes that to demonstrate that a limitation is permissible, legislation
proponents must provide reasoned and evidence‑based explanations of why the
measures are necessary in pursuit of a legitimate objective.
2.346
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether the proposed changes are aimed
at achieving a legitimate objective; whether there is a rational connection
between the limitation and that objective; and whether the limitation is a
reasonable and proportionate measure for the achievement of that objective.
Minister's response
The Government is committed to
acting in accordance with Article 3 of the CRC. In developing this regulation,
the best interests of the child have been treated as a primary consideration.
However, other considerations may also be primary considerations, including:
-
seeking to prevent anyone,
including children, from taking potentially life threatening journeys to
Australia;
-
maintaining the integrity of
Australia's borders and national security;
-
maintaining the integrity of
Australia's migration system;
-
protection of the national
interest; and
-
encouraging regular migration.
Part of the Government's
intention in re-introducing TPVs was to deter children from taking potentially
life threatening journeys to achieve resettlement in Australia.
This goal, as well as the need to
maintain the integrity of Australia's migration system and protect the national
interests, were also primary considerations. I consider that these primary
considerations outweigh the best interests of the child in seeking family
re-unification.
There is no right to family
reunification under international law. The protection of the family unit under
articles 17 and 23 of the ICCPR does not amount to a right to enter Australia
where there is no other right to do so. Likewise, Article 10 of the CRC does
not amount to a right to family reunification. These rights can be subject to
proportionate and reasonable limitations which are aimed at legitimate objectives.
The objectives for re‑introducing TPVs are set out above.
I consider that these objectives
are legitimate and that the re-introduction of TPVs, in conjunction with other
aspects of border protection policy, is a proportionate measure for achieving
these objectives. I further consider that the measures have been effective in
achieving these objectives. This has allowed the Government to provide increased
opportunities for people to arrive in Australia via regular means, including
obtaining a permanent visa for resettlement under Australia's Refugee and
Humanitarian Programme, which allows family groups to migrate together.[120]
Committee response
2.347
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.348
The committee reiterates that, in light of the potentially life
threatening journey, deterring people from making dangerous boat journeys to
Australia is a legitimate objective. The committee also accepts that the need
to maintain the integrity of Australia's migration system, as well as protect
the national interest, are legitimate objectives.
2.349
Nevertheless, as the committee noted above, in order to demonstrate that
a limitation is permissible, legislation proponents must 'provide reasoned and
evidence-based explanations of why the measures are necessary in pursuit of a
legitimate objective'. The minister's response provides no empirical data, or
other evidence, that indicates that re-introducing TPVs deters children from
taking potentially life threatening journeys to achieve resettlement in
Australia.
2.350
In the absence of empirical data or other evidence the committee is
unable to agree that the measure is rationally connected to the objective
sought.
2.351
The committee's assessment of the conversion of Permanent Protection
Visa applications into Temporary Protection Visa applications against articles
17 and 23 of the International Covenant on Civil and Political Rights, article
10 of the International Covenant on Economic, Social and Cultural Rights (right
to protection of the family) and article 3 of the Convention on the Rights of
the Child (obligation to consider the best interests of the child) is that the
measure is incompatible with Australia's obligations under international human
rights law.
2.352
As set out above, the minister's response does not
sufficiently justify the limitation on the right to protection of the family
and the obligation to consider the best interests of the child as rationally
connected to the objective sought, and the minister provides no evidence that
people smugglers market Permanent Protection Visas as motivators for
unauthorised maritime entry to Australia. Accordingly, the committee
considers that the changes made by the regulation to confirm the conversion of
existing Permanent Protection Visa applications into Temporary Protection
Visa applications are incompatible with the right to protection of the family
and the obligation to consider the best interests of the child.
2.353
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to provide PPVs for children.
Right to freedom of movement
2.354
The right to freedom of movement is set out above at paragraphs [2.145]
to [2.147].
Compatibility of the measure with
the right to freedom of movement
2.355
A TPV only allows a visa holder to travel in compassionate and
compelling circumstances, as approved by the minister in writing, and to places
other than the country in respect of which protection was sought.[121]
In its previous report the committee therefore considered that the right to
freedom of movement is engaged and limited by the measure.
2.356
This right was not addressed in the statement of compatibility. As set
out above, the committee's usual expectation where a limitation on a right is
proposed is that the statement of compatibility provide an assessment of
whether the limitation is reasonable, necessary, and proportionate to achieving
a legitimate objective. The committee notes that to demonstrate that a
limitation is permissible, legislation proponents must provide reasoned and
evidence-based explanations of why the measures are necessary in pursuit of a
legitimate objective.
2.357
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether the proposed changes are aimed
at achieving a legitimate objective; whether there is a rational connection
between the limitation and that objective; and whether the limitation is a
reasonable and proportionate measure for the achievement of that objective.
Minister's response
With respect, I do not accept
that the Committee's assessment that the right to freedom of movement is
limited by the amendment. The Committee notes that:
"The right to freedom of movement includes the right
to move freely within a country for those who are lawfully within a country,
the right to leave any country and the right to enter a country of which you
are a citizen."
TPV and SHEV holders are able to
move freely within Australia and to choose their place of residence. They are
also able to leave Australia at any time - there are no legal barriers to their
departure and they are able to obtain Australian travel documents to facilitate
their travel. Anyone who is found to be a refugee for the purpose of the
Refugees Convention is able to apply for a Convention Travel Document (also
known as a Titre de Voyage). Those who engage Australia's protection
obligations on complementary protection grounds are able to seek a Certificate
of Identity. These travel documents are available to both permanent and
temporary protection visa holders.
Condition 8570 is imposed on
temporary protection visas and requires visas holders to seek the Department's
permission before travelling overseas if they do not want to risk being found
to have breached their visa condition. The condition does not prevent a person
from departing Australia.
Permission to travel, other than
to the country against which protection was sought, is granted in compassionate
and compelling circumstances (which may include visiting close family members).
Where this condition is breached, consideration may be given to cancelling the
visa. This would affect a person's right to re-enter Australia if they are
overseas at the time of visa cancellation. A person in Australia at the time
their visa is cancelled would not be removed from Australia where that would be
inconsistent with Australia's non-refoulement obligations.
Condition 8570 is intended to
protect the integrity of the protection visa program by ensuring that visa
holders do not travel to the country in relation to which they were found to
engage Australia's protection obligations.[122]
Committee response
2.358
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.359
The committee acknowledges the minister's advice that TPV and SHEV
holders are able to obtain Australian travel documents to facilitate their
travel, and that individuals who engage Australia's protection obligations on
complementary protection grounds are able to seek a Certificate of Identity.
2.360
However, the committee remains concerned that Condition 8570 conditions
the right of individuals on TPVs to travel overseas on the discretion of the
Department of Immigration and Border Protection.
2.361
In contrast to the minister's statement, requiring holders of TPVs to
seek the department's permission before travelling clearly limits the right to
freedom of movement. This is particularly so when it appears that permission to
travel overseas will never be granted in relation to the country against which
protection was sought, and will only be granted to other countries in
'compassionate and compelling circumstances'. The fact that this 'may', but
will not necessarily, include visiting close family members indicates the
significant limitation on freedom of movement.
2.362
As the committee noted in its previous report, freedom of movement
includes the right to leave a country for permanent emigration and also for the
purpose of travelling abroad. States are required to provide necessary travel
documents to ensure this right can be realised. Further, freedom to leave the
territory of a state 'may not be made dependent on any specific purpose', and
the right of the individual to determine the state destination 'is part of the
legal guarantee'. This right is accorded to all individuals within a state.[123]
2.363
The committee's assessment of the conversion of Permanent Protection
Visa applications into temporary protection visa applications against article
12 of the International Covenant on Civil and Political Rights is that the
measure is incompatible with Australia's obligations under international human
rights law.
2.364
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to ensure that a person has the right to
obtain relevant travel documents and to travel overseas, without seeking the
Department of Immigration and Border Protection's permission. The Migration Act
could be amended to provide a departmental review of protection claims in the
event that a person sought to travel to a country from which they had
previously sought protection in Australia.
Shipping Legislation Amendment Bill 2015
Portfolio: Infrastructure and
Regional Development
Introduced: House of Representatives, 25 June 2015
Purpose
2.365
The Shipping Legislation Amendment Bill 2015 (the bill) provides a new
framework for the regulation of coastal shipping in Australia, including:
-
replacing the existing three tiered licensing system with a
single permit system available to Australian and foreign vessels, which will
provide access to the Australian coast for a period of 12 months;
-
establishing a framework of entitlements
for seafarers on foreign vessels engaging or intending to engage in coastal
shipping for more than 183 days;
-
allowing for vessels to be registered on the Australian
International Register if they engage in international shipping for a period of
90 days or more; and
-
making consequential amendments and repealing the Coastal
Trading (Revitalising Australian Shipping) (Consequential Amendments and
Transitional Provisions) Act 2012.
2.366
Measures raising human rights concerns or issues are set out below.
Background
2.367
The committee previously considered the bill in its Twenty-seventh
Report of the 44th Parliament (previous report) and requested further
information from the Minister for Infrastructure and Regional Development as to
the compatibility of the bill with the right to just and favourable conditions
of work.[124]
12-month permit system for access to Australian coastal shipping
2.368
Under the bill, vessels registered under the laws of a foreign country
will not be subject to Australian crew requirements unless they declare on
their permit that they intend to engage in coastal shipping for more than 183
days during the permit period, or if the vessel actually engages in coastal
shipping for more than 183 days during the permit period. Accordingly, under
the proposed permit system, foreign vessels will be able to operate in
Australian coastal waters and not pay their workers in accordance with
Australian laws provided that the vessel spends less than six months in Australian
waters in any given 12-month period.
2.369
Accordingly, the committee considered in its previous report that the measure
engages and may limit the right to just and favourable conditions at work as
the bill may permit individuals to be paid less than Australian award wages
whilst working in Australian coastal waters.
Right to just and favourable
conditions of work
2.370
The right to work and rights in work are protected by articles 6(1), 7
and 8(1)(a) of the International Covenant on Economic, Social and Cultural
Rights (ICESCR).[125]
2.371
The UN Committee on Economic, Social and Cultural Rights has stated that
the obligations of state parties to the ICESCR in relation to the right to work
include the obligation to ensure individuals their right to freely chosen or
accepted work, including the right not to be deprived of work unfairly,
allowing them to live in dignity. The right to work is understood as the right
to decent work providing an income that allows the worker to support themselves
and their family, and which provides safe and healthy conditions of work.
2.372
Under article 2(1) of the ICESCR, Australia has certain obligations in
relation to the right to work. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps (retrogressive
measures) that might affect the right;
-
the obligation to ensure the right is made available in a
non-discriminatory way; and
-
the obligation to take reasonable measures within its available
resources to progressively secure broader enjoyment of the right.
2.373
The right to work may be subject only to such limitations as are
determined by law and are compatible with the nature of the right, and solely
for the purpose of promoting the general welfare in a democratic society.
Compatibility of the measure with
the right to just and favourable conditions of work
2.374
The statement of compatibility suggests that the measure engages the
right to just and favourable conditions of work but does not explicitly
consider whether the measure limits the right. Further, no information is
provided as to whether the bill would expand the number of individuals who work
in Australian coastal waters on below award wages or the proportion of
individuals who are paid below award wages.
2.375
The statement of compatibility states that Australia is not required to
set wages and conditions for seafarers on foreign vessels under the ICESCR.
This appears to misunderstand the nature of Australia's obligations under
international law. Australia is obligated to apply international human rights
law to everyone subject to its jurisdiction. This includes people in Australian
coastal waters that form part of Australia's territory. As part of Australia's
sovereignty, Australia applies a number of domestic laws to foreign flagged
vessels in its coastal waters including the Navigation Act 2012.
2.376
Accordingly, the committee previously considered that to the extent that
the bill may expand the number of individuals working in Australian coastal
waters on below Australian award wages, the bill may limit the right to just
and favourable conditions of work.
2.377
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.
2.378
The committee therefore sought the advice of the Minister for
Infrastructure and Regional Development as to whether there is reasoning or
evidence that establishes that the stated objective addresses a pressing or
substantial concern or whether the proposed changes are otherwise aimed at
achieving a legitimate objective; whether there is a rational connection
between the limitation and that objective; and whether the limitation is a
reasonable and proportionate measure for the achievement of that objective.
Minister's response
The Bill is seeking to strike a
sensible balance between reduced barriers to access of foreign vessels and the
long-term availability of personnel with maritime backgrounds and skills to
fill critical jobs in the industry.
The Parliamentary Joint Committee
on Human Rights' assessment, as outlined in paragraphs 1.82 and 1.83 of the
Human rights scrutiny report dated 8 September 2015, is noted. Whilst Australia
has sovereignty over its ports, as stated in the Statement of Compatibility
with Human Rights the Australian Government is of the view that it does not
have obligations under Article 7 of the International Covenant on Economic,
Social and Cultural Rights (ICESCR) to set wages and conditions on foreign
flagged vessels. In that regard the Government respectfully disagrees with the
Committee's comments contained in paragraph 1.79 of its report.
In any case, the Government
considers the amendments are reasonable, necessary and proportionate to
achieving the legitimate objective of ensuring efficient and reliable coastal
shipping services as part of the national transport system. The Government
considers that a foreign flagged vessel and its seafarers should be covered by
Australian workplace relations laws if the vessel is engaged predominantly in
domestic trade. If not, that vessel can continue its existing international
arrangements. This compromise seeks to balance the rights and responsibilities
of relevant parties.
For completeness, the Government
draws to the attention of the Committee, Marine Order 11 (Living and Working
Conditions on Vessels) 2015 (Marine Order 11) made under the Navigation Act
2012 (Navigation Act). Marine Order 11 would continue to apply to foreign
flagged vessels engaged in coastal trading in addition to the terms and
conditions agreed to in an individual seafarer's contract of employment.
The Navigation Act and Marine
Order 11 implement relevant terms of the International Labour Organization
Maritime Labour Convention 2006 (MLC). The MLC establishes minimum working
and living conditions standards for seafarers, including in relation to the
minimum age of seafarers, the content of employment agreements, hours of work
and rest, sleeping arrangements, paid annual leave, medical care,
accommodation, ship provisions, health and safety protections and seafarers'
complaint handling.
The attachment [see Appendix 1]
provides historical context for the amendments. I trust this response has
addressed the Committee's concerns on these issues.[126]
Committee response
2.379
The committee thanks the Minister for Infrastructure and Regional
Development for his response.
2.380
The bill seeks to reduce the barriers faced by foreign vessels in
providing Australian coastal shipping services. Those ships would be plying
their trade between Australian ports and almost exclusively in Australian
territorial waters. As such, those ships would fall within Australia's jurisdiction
for the purposes of international human rights law.
2.381
The response states that the Australian Government does not have
obligations to set wages and conditions on foreign flagged vessels but provides
no reasoning in law as to why Australia, in regulating intra-state trade, is
not bound by its international human rights law obligations.
2.382
To the extent that the bill would result in more individuals working on
ships undertaking interstate trade within Australia on less than Australian
award wages, the bill would appear to limit the right to just and favourable
conditions of work. The loss of Australian jobs and their replacement by
employees working on lower foreign wages is acknowledged in the regulatory
impact statement (RIS) attached to the explanatory memorandum to the bill.[127]
2.383
The response refers to Marine Order 11, however, this order does not
require the payment of Australian award wages. According to the RIS, the Seagoing
Industry Award 2010 (Seagoing Industry Award) Part A is between $4 169 and $5 202
more expensive per ship per day than the International Transport Federation's
Uniform Collective Agreement (ITFUCA) rate.[128]
This suggests that foreign workers employed in ships plying Australian coastal
waters will be paid significantly less than Australian award wages. To the
extent that the bill does limit the right to just and favourable conditions of
work, the response states that the government considers the amendments are
reasonable, necessary and proportionate but does not set out in detail,
following the committee's analytical framework, how the limitation is
justified.
2.384
The committee agrees that revitalising domestic shipping is likely to be
a legitimate objective for the purposes of international human rights law and
that the RIS provides evidence that the measures in the bill are rationally
connected to that objective. However, there is no information in the response or
statement of compatibility to demonstrate that there are not other less rights
restrictive ways to achieve this objective. For example the RIS explains that the
modelling undertaken for the cost-benefit analysis of the measures in the bill did
not include the cost of the potential loss of Australian seafarer jobs.[129]
Accordingly, the committee needs further information as to the proportionality
of the measure.
2.385
The committee's assessment of the 12-month permit system for access
to Australian coastal shipping by foreign flagged vessels against articles
6(1), 7 and 8(1)(a) of the International Covenant on Economic, Social and
Cultural Rights (right to just and favourable conditions of work) raises
questions as to whether the measures are a justified limitation on the right.
2.386
As set out above, the minister's response does not sufficiently
justify that limitation for the purposes of international human rights law.
Accordingly, the committee seeks further information from the Minister for
Infrastructure and Regional Development as to whether the limitation on just
and favourable conditions of work is proportionate, in particular with
reference to the economic benefits of the bill and the impact on Australian
jobs in the domestic shipping industry.
Charter of the United Nations (Sanctions–Syria) Regulation 2015
[F2015LO1463]
Charter of the United Nations (Sanctions–Iraq) Amendment Regulation 2015 [F2015L01464]
Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration
2015 (No. 2) [F2015L01673]
Portfolio: Foreign Affairs
Authorising
Legislation: Charter of the United Nations Act 1945
Last day to disallow: 3 December 2015 (Senate) (or 22
February 2016 (Senate) for the Charter of the United Nations (UN Sanction
Enforcement Law) Amendment Declaration 2015 (No. 2) [F2015L01673])
Purpose
2.387 The Charter of
the United Nations (Sanctions—Syria) Regulation 2015 and the Charter of the
United Nations (Sanctions—Iraq) Amendment Regulation 2015 (together the
cultural sanctions regulations) seek to give effect to a resolution of the
United Nations Security Council in relation to the protection of Iraqi and
Syrian cultural property.[130]
2.388 The Charter of
the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2015
(No. 2) (the UN Sanction Enforcement Law regulation) amends the Charter of the
United Nations (UN Sanction Enforcement Law) Declaration 2008, to include
contravention of aspects of the cultural sanctions regulations relating to
Syria as a 'UN sanction enforcement law'. The effect of this is to make breach
of those provisions a criminal offence under the Charter of the United
Nations Act 1945 (the Act).
2.389
Measures raising human rights concerns or issues are set out below.
Background
2.390
In February 2015, the UN Security Council passed resolution 2199 that provides:
...all Member States shall take
appropriate steps to prevent the trade in Iraqi and Syrian cultural property
and other items of archaeological, historical, cultural, rare scientific, and
religious importance illegally removed from Iraq since 6 August 1990 and from
Syria since 15 March 2011, including by prohibiting cross-border trade in such
items, thereby allowing for their eventual safe return to the Iraqi and Syrian
people...[131]
2.391
Under international law, Australia is bound by the Charter of the United
Nations 1945 (UN Charter) to implement UN Security Council decisions.[132]
UN Security Council resolution 2199 requires Australia to implement appropriate
steps to prevent the trade in Iraqi and Syrian cultural property that are
consistent with Australia's international obligations including human rights
obligations.
2.392
The committee previously considered the cultural sanctions regulations
in its Thirty-first Report of the 44th Parliament (previous
report) and requested further information from the Minister for Foreign Affairs
as to the compatibility of the regulations with the prohibition against
arbitrary detention and the right to a fair trial (presumption of innocence).[133]
Offences of dealing with 'illegally removed cultural property'
2.393
The cultural sanctions regulations provide that anyone who suspects an
item is illegally removed cultural property from Iraq or Syria must notify
either the Secretary of the Department of Foreign Affairs and Trade (DFAT); the
Department of Communications and the Arts; or a member of the police. If the
Secretary of DFAT reasonably believes that a person has possession or control
of an item that might be illegally removed cultural property, the secretary may
direct the person to comply with arrangements for storage of the item as
specified by the secretary.
2.394
A person commits an offence of strict liability if they fail to comply
with arrangements specified by the secretary, liable to up to 50 penalty units.
2.395
In addition, as breach of such provisions in relation to Syria have been
designated as a UN sanction enforcement law, a person commits an offence under
the Act by engaging in conduct (including doing an act or omitting to do an
act) that contravenes the provisions. This is then punishable by up to 10 years
imprisonment and/or a fine of up to 2500 penalty units (or $450 000).[134].
2.396
For both property from Iraq and Syria, there is an additional offence
(specified as a UN sanction enforcement law) for persons who give, trade in or
transfer the title of illegally removed cultural property, otherwise than in
accordance with a direction of the secretary.[135] This is also punishable by up to 10 years'
imprisonment and/or a fine of up to $450 000.
2.397
In its previous report the committee considered these measures engage
and may limit the prohibition against arbitrary detention, on the basis that
the offences, could lead to up to ten years imprisonment, were imprecisely
drafted.
Right to liberty (prohibition
against arbitrary detention)
2.398
Article 9 of the International Covenant on Civil and Political Rights
(ICCPR) protects the right to liberty—the procedural guarantee not to be
arbitrarily and unlawfully deprived of liberty. The prohibition against
arbitrary detention requires that the state should not deprive a person of
their liberty except in accordance with law. The notion of 'arbitrariness'
includes elements of inappropriateness, injustice and lack of predictability.
2.399
Accordingly, any detention must not only be lawful, it must also be
reasonable, necessary and proportionate in all the circumstances. Detention
that may initially be necessary and reasonable may become arbitrary over time
if the circumstances no longer require the detention. In this respect, regular
review must be available to scrutinise whether the continued detention is
lawful and non‑arbitrary.
2.400
The UN Human Rights Committee has explained:
The notion of 'arbitrariness' is
not to be equated with 'against the law', but must be interpreted more broadly
to include elements of inappropriateness, injustice, lack of predictability,
and due process of law.[136]
2.401
In addition, the UN Human Rights Committee has noted that any
substantive grounds for detention 'must be prescribed by law and should be
defined with sufficient precision to avoid overly broad or arbitrary
interpretation or application'.[137]
Compatibility of the measure with
the right to liberty (prohibition against arbitrary detention)
2.402
The statements of compatibility for the cultural sanctions regulations
state that the regulations advance the protection of human rights in Syria and
Iraq as they assist with international efforts to deprive terrorist
organisations from funding human rights violations in Syria and Iraq by trading
in illegally removed cultural property. The statement of compatibility for the
UN Sanction Enforcement Law regulation states that the regulation does not
engage any human rights.
2.403
There is no discussion in any of the statements of compatibility about
any rights that may be limited by the regulations, including the right not to
be arbitrarily detained.
2.404
In assessing whether the regulations engage and may limit the right not
to be arbitrarily detained, the committee notes that arbitrary detention under
international human rights law is much broader than unlawful detention.
Detention that is lawful under Australian law may nevertheless be arbitrary and
thus in breach of Australia's obligations under article 9 of the ICCPR.
2.405
In its previous report, the committee considered that there are
significant questions as to whether the limitation on the right to arbitrary
detention imposed by the regulations is sufficiently precise for the purposes
of international human rights law. For example:
-
The definition of what constitutes 'illegally removed cultural
property' is defined as an item of property that 'has been illegally removed'
from Syria or Iraq after certain dates. It is unclear what constitutes illegal
removal.
-
It is also unclear if an item would be considered to be
'illegally' removed if the person removing it did so without direct authority
but for the purposes of safe-keeping.
-
In addition, there is no definition as to what may be considered
to be 'cultural property' or what may be considered an item of 'archaeological,
historical, cultural, rare scientific, or religious importance'.
-
A person is required to comply with written directions from the
secretary 'for storage of the item'. No further detail is specified as to what
these directions may be, nor is there a requirement that the arrangements be reasonable.
-
There is no requirement that a direction is in force in relation
to the property before the offence could apply.
2.406
Even if the limitation was sufficiently precise, the committee
considered further that it had not been demonstrated that the measures impose a
proportionate limitation on the right not to be arbitrarily detained.
2.407
The committee therefore sought the advice of the Minister for Foreign
Affairs as to:
-
whether the offence provisions are sufficiently precise to
satisfy the requirement that a measure limiting rights is prescribed by law;
and
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective, including that there are sufficient safeguards
in place and the measure is no more rights restrictive than necessary to
achieve that objective.
Minister's response
The Committee sought my views on
offences dealing with illegally removed cultural property from Syria, and
whether they were sufficiently prescribed and justifiable to engage and limit
the prohibition on arbitrary detention (article 9 of the International Covenant
on Civil and Political Rights). The Committee noted that the offence related to
the failure to comply with the direction in relation to illegally removed
cultural property in Syria (under Regulation 5 of the Syria Regulation) is also
designated as a UN Sanction Enforcement Law. The Department of Foreign Affairs
and Trade acknowledges that this was a drafting error and will therefore make a
revised UN Sanction Enforcement Law Declaration, which will remove Regulation 5
of the Syria Regulation as a UN Sanction Enforcement Law' Accordingly, the penalty for this Regulation will be the same as for the Iraq
Regulation.
...
The Committee also noted that the
Regulations fail to outline the procedure for the storage and return of
cultural items of Iraq and Syria. This process is outside the purview of the
Regulations which is solely to implement UN Security Council Resolution 2199,
and would be decided through administrative processes between relevant
government agencies.[138]
Committee response
2.408
The committee thanks the Minister for Foreign Affairs for her
response.
2.409
The committee welcomes the minister's advice that that the failure to
comply with a direction in relation to illegally removed cultural property in
Syria was designated as a UN Sanction Enforcement Law was a drafting error. The
committee appreciates the minister's assurance that a revised UN Sanction
Enforcement Law Declaration will remove the additional punishment.
2.410 However, the
committee notes that the minister's response does not address the committee's
concerns over the lack of precision surrounding the offences dealing with
illegally removed cultural property from Syria and Iraq. The committee also
notes that the minister's response does not explain whether the limitation is a
reasonable and proportionate measure designed to achieve the stated objective
of depriving terrorist organisations from funding human rights violations in
Syria and Iraq by trading in illegally removed cultural property.
2.411 In the
absence of information from the minister, the committee maintains its concern
that the offences of dealing with illegally removed cultural property
engage and limit the prohibition on arbitrary detention because they are
drafted in terms which are insufficiently precise and therefore risk being
unpredictable or overly broad. In the absence of further information from the
minister as to why this limitation is proportionate, the committee is unable to
conclude that the measures are compatible with international human rights law.
Strict liability offence
2.412 The cultural
sanctions regulations both provide that strict liability applies if a person is
directed by the Secretary of DFAT to comply with specified arrangements for
storage of the item, and the person fails to comply with the arrangement. The
regulations state that a penalty of 50 penalty unit applies.
2.413 The effect of
applying strict liability to an element of an offence means that no fault
element needs to be proven by the prosecution but the defence of mistake of
fact is available to the defendant.
2.414 The imposition
of strict liability engages and limits the right to a fair trial, in particular
the right to be presumed innocent.
Right to a fair trial (presumption
of innocence)
2.415 Article 14(2) of
the ICCPR provides that everyone charged with a criminal offence has the right
to be presumed innocent until proven guilty. Generally, consistency with the presumption
of innocence requires the prosecution to prove each element of a criminal
offence beyond reasonable doubt.
2.416 Strict liability
offences engage the presumption of innocence because they allow for the imposition
of criminal liability without the need to prove fault. However, strict
liability offences will not necessarily be inconsistent with the presumption of
innocence provided that they are within reasonable limits which take into
account the importance of the objective being sought and maintain the defendant's
right to a defence. In other words, such offences must be reasonable, necessary
and proportionate to that aim.
Compatibility of the measure with
the right to a fair trial (presumption of innocence)
2.417 Strict liability
in this instance means that the prosecution does not have to prove any fault
element in a person failing to comply with arrangements as directed. This is
despite there being no detail in legislation as to what those arrangements might
be, how the person might be directed or what the timeframe is for a failure to comply.
The Attorney-General's Department's own A Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers states that strict
liability should only be applied to all elements of an offence if the offence
is not punishable by imprisonment and there are legitimate grounds for
penalising persons lacking fault.[139]
2.418 In its previous
report the committee accepted that seeking to deprive terrorist organisations
from funding human rights violations in Syria and Iraq is a legitimate
objective for the purposes of international human rights law. However, the
committee sought the advice of the Minister for Foreign Affairs as to:
-
the rational connection between the limitation and the stated
objective; and
-
whether the limitation is a reasonable and proportionate measure
for the achievement of the stated objective.
Minister's response
The Committee also sought my
views on the justification for the imposition of a strict liability offence in
Regulation 5 of the Syria Regulation and Regulation 9 of the Iraq Regulation,
for the failure to comply with a direction in relation to illegally removed
cultural property of Syria and Iraq.
A strict liability offence is
appropriate for the Regulations due to the fact that a person who has been
correctly issued with a direction to return the illegally removed cultural
property is effectively put 'on notice' by the issuing of that direction to
return the item. As a result, they have received sufficient notice of their
obligations under the Regulations and have had the opportunity to avoid an unintentional
contravention. It would therefore be unnecessary to impose a requirement to
prove the individual's intention not to comply with the notice.
Strict liability is also
appropriate as the offences are not punishable by imprisonment: the offences
are only punishable by a fine of less than 60 penalty units. The
requirement to prove fault under the Regulations would reduce the effectiveness
of the enforcement regime in deterring the trade of illegally removed Syrian
and Iraqi cultural property. I also note that honest and reasonable mistake of
fact is available as a defence to strict liability offences under Section 9.2
of the Criminal Code.[140]
Committee Response
2.419
The committee thanks the Minister for Foreign Affairs for her
response.
2.420
While strict liability offences should not be imposed for prosecutorial
convenience, the committee considers that the deterrence of trade in illegally
removed cultural property from Syria and Iraq is a legitimate aim, and that
strict liability carrying a penalty of non-imprisonment for failing to comply
with a direction to store such property, is reasonable and proportionate to
that aim. The committee agrees that a person directed by the Secretary of DFAT
to comply with arrangements specified by the secretary for storage of suspected
illegally removed cultural property is put on notice by that direction such
that they have the opportunity to avoid an unintentional contravention.
2.421
The committee therefore accepts that the imposition of strict
liability for the offence of failing to comply with a direction by the
Secretary of the Department of Foreign Affairs and Trade to store suspected
illegally removed cultural property from Syria and Iraq is reasonable,
necessary and proportionate, and thus not inconsistent with the presumption of
innocence.
Fair Work (State Declarations — employer not to be national system
employer) Endorsement 2015 (No. 1) [F2015L01420]
Portfolio: Employment
Authorising
legislation: Fair Work Act 2009
Last day to disallow: This instrument is exempt from
disallowance (see subsection 14(5) of the Fair Work Act 2009)
Purpose
2.422
This instrument endorses a declaration by the New South Wales (NSW) government
that Insurance and Care NSW is not a national system employer for the purposes
of section 14(2) of the Fair Work Act 2009 (Fair Work Act).
2.423
Measures raising human rights concerns or issues are set out below.
Background
2.424
The committee first reported on the instrument in its Thirtieth
Report of the 44th Parliament and requested further information
from the Minister for Employment as to the compatibility of the instrument with
the right to work.[141]
2.425
Section 14(1) of the Fair Work Act provides that a national system
employer means any of the following in its capacity as an employer of an
individual:
-
a constitutional corporation;
-
the Commonwealth or a Commonwealth authority;
-
a person who employs a flight crew officer, maritime employee or
waterside worker in connection with constitutional trade or commerce;
-
a body corporate incorporated in a territory; or
-
a person who carries on an activity in a territory and employs a
person in connection with the activity.
2.426
A national system employee is an individual employed by a national
system employer (section 13 of the Fair Work Act).
2.427
The Parliaments of Victoria, South Australia, Tasmania, Queensland and
New South Wales referred power to the Commonwealth Parliament to extend the
Fair Work Act to employers and their employees in these states that are not
already covered by sections 13 and 14. Division 2A and Division 2B of Part 1-3
of the Fair Work Act give effect to state workplace relations references by
extending the meaning of national system employee and national system employer
(sections 30C, 30D, 30M and 30N of the Fair Work Act).
2.428
Section 14(2) of the Fair Work Act allows states and territories to
declare (subject to endorsement by the Commonwealth Minister) that certain
employers over which the Commonwealth would otherwise have jurisdiction are not
national system employers.
2.429
The effect of an endorsement is that an employer specified in it will not
generally be subject to the Fair Work Act and will instead be subject to the
workplace relations arrangements prescribed by the relevant state or territory.
An endorsement has the effect that a specified employer's employees are not
generally subject to the Fair Work Act, because only employees of national
system employers can be national system employees. However, Parts 6-3 and 6-4
of the Fair Work Act, which relate to unlawful termination of employment,
notice of termination and parental leave and which apply to employers and
employees nationally, will continue to apply.
2.430
This instrument endorses a declaration made under the Industrial
Relations Act 1996 (NSW) that Insurance and Care NSW is not a national
system employer, commencing 9 September 2015.
Alteration of persons' workplace relations arrangements
2.431
The instrument, in removing Insurance and Care NSW as a national system
employer generally subject to the Fair Work Act, will instead see employees of
Insurance and Care NSW subject to the workplace relations arrangements
prescribed by NSW, and so engages and may limit the right to just and
favourable conditions of work.
Right to just and favourable
conditions of work
2.432
The right to work and rights in work are protected by articles 6(1), 7
and 8(1)(a) of the International Covenant on Economic, Social and Cultural
Rights (ICESCR).[142]
2.433
The UN Committee on Economic, Social and Cultural Rights has stated that
the obligations of state parties to the ICESCR in relation to the right to work
include the obligation to ensure individuals their right to freely chosen or
accepted work, including the right not to be deprived of work unfairly,
allowing them to live in dignity. The right to work is understood as the right
to decent work providing an income that allows the worker to support themselves
and their family, and which provides safe and healthy conditions of work.
2.434
Under article 2(1) of the ICESCR, Australia has certain obligations in
relation to the right to work. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps
(retrogressive measures) that might affect the right;
-
the obligation to ensure the right is made available in a
non-discriminatory way; and
-
the obligation to take reasonable measures within its available
resources to progressively secure broader enjoyment of the right.
2.435
The right to work may be subject only to such limitations as are
determined by law and compatible with the nature of the right, and solely for the
purpose of promoting the general welfare in a democratic society.
Compatibility of the measure with
the right to just and favourable conditions of work
2.436
The instrument is not accompanied by a statement of compatibility as the
instrument is not specifically required to have such a statement under section
9 of the Human Rights (Parliamentary Scrutiny) Act 2011 (the Act).
However, the committee's role under section 7 of the Act is to examine all
instruments for compatibility with human rights (including instruments that are
not required to have statements of compatibility).
2.437
The explanatory statement to the instrument states:
The effect of an endorsement is
that an employer specified in it will not generally be subject to the Fair Work
Act and will instead be subject to the workplace relations arrangements
prescribed by the relevant State or Territory. An endorsement has the effect
that a specified employer's employees are not generally subject to the Fair
Work Act, because only employees of national system employers can be national
system employees. However, Parts 6-3 and 6-4 of the Fair Work Act, which relate
to unlawful termination of employment, notice of termination and parental leave
and which apply to employers and employees nationally, will continue to apply.[143]
2.438
The committee notes that to the extent that the NSW workplace relations
arrangements could be less generous than the arrangements under the Fair Work
Act, the measure in the instrument may be regarded as a retrogressive measure.
2.439
Under article 2(1) of the ICESCR, Australia has certain obligations in
relation to economic and social rights. These include an obligation not to
unjustifiably take any backwards steps (retrogressive measures) that might
affect the right to just and favourable conditions of work. A lessening in
workplace relations arrangements available to an employee may therefore be a
retrogressive measure for human rights purposes. A retrogressive measure is not
prohibited so long as it can be demonstrated that the measure is justified,
that is, it addresses a legitimate objective, it is rationally connected to
that objective and it is a proportionate means of achieving that objective.
2.440
The committee's assessment of the instrument against the ICESCR raises
questions as to whether the instrument promotes or limits the right to just and
favourable conditions of work.
2.441
The committee therefore sought the advice of the Minister for Employment
as to the existence of any differences between the workplace relations
arrangements under the Fair Work Act and those under NSW law and whether
the instrument promotes or limits the right to just and favourable conditions
of work.
Minister's response
The Committee considered the
legislative instrument - 'Fair Work (State Declarations - employer not to be a
national system employer) Endorsement 2015 (No.1)' and seeks further
information on the 'existence of any differences between workplace relations
arrangements under the Fair Work Act 2009 and those under New South
Wales (NSW) law and whether the instrument promotes or limits the right to just
and favourable conditions for work'.
The instrument endorses a
declaration made by the New South Wales Treasurer and Minister for Industrial
Relations, the Hon Gladys Berejiklian MP-namely, the Industrial Relations
(National System Employers) Amendment (Insurance and Care NSW) Order 2015,
which provides that Insurance and Care NSW is not a national system employer
for the purposes of the Fair Work Act 2009 (the Fair Work Act).
Section 14 of the Fair Work Act provides
that, if a declaration is made under a state law that a body established for a
public or local government purpose is not a national system employer, and the
Minister endorses that declaration, the body is not a national system employer.
It appears that this is the first
time the Committee has sought to comment upon a section 14 endorsement, noting
that dozens of such these instruments have been made since the commencement of
the Fair Work Act in 2009, by both this Government and the former Labor Government,
in each case, with the assistance of a state Government.
The making of a ministerial
endorsement under section 14 of the Fair Work Act must be considered in the
context of the national workplace relations system and state referrals of
workplace relations matters. The national workplace relations system is
supported by the states' agreements to refer certain matters to the
Commonwealth. Those referrals had the effect of extending Fair Work Act
coverage to private sector employers and employees otherwise outside
Commonwealth power (for example, unincorporated employers). NSW, Queensland,
South Australia and Tasmania did not refer power in relation to their public
sector workforces, as reflected in their referral legislation. Consequently,
employers and employees in the public sector in these states remain covered by
the relevant state industrial relations system.
The capacity to exclude bodies
established for public or local government purposes set out in section 14 of
the Fair Work Act is an inherent component of the states' agreements to refer
their relevant workplace relations powers to the Commonwealth. A refusal to
make a ministerial endorsement under section 14 of the Fair Work Act where the
criteria set out in that section have been met could be seen as contrary to the
framework underpinning the state referrals. Further, in light of NSW and other
states retaining public sector employees within the state workplace relations
system, such a refusal to endorse could amount to an interference with the
functioning of a state in an impermissible way.
Insurance and Care NSW was
established as a NSW Government agency under the State Insurance and Care
Governance Act 2015 (NSW). Staff for the agency are being transferred from
other state public sector bodies. Those employees continue to receive their
existing employment arrangements in accordance with clause 9 of Schedule 4 of
the State Insurance and Care Governance Act 2015 (NSW). Those employees,
when working for other state public sector bodies, were not covered by the
national workplace relations system.
Accordingly, there has been no
change in employment conditions relating to these employees. The Fair Work Act
did not to apply to them and that will continue to be the case.
The human right to just and favourable
conditions of work is not limited by this endorsement. Concerns to the contrary
should be directed to the NSW Government.[144]
Committee response
2.442
The committee thanks the Minister for Employment for her response.
2.443
The committee considers that the response demonstrates that there has
been no change to existing workplace entitlements as a result of the
instrument.
2.444
Accordingly, the committee considers that the instrument is
compatible with the right to just and favourable conditions of work and has concluded
its examination of the instrument.
Federal Financial Relations (National Specific Purpose Payments)
Determination 2013-14 No. 1 [F2015L00877]
Federal Financial Relations (National Specific Purpose Payments)
Determination 2013-14 No. 2 [F2015L00878]
Portfolio: Treasury
Authorising
legislation: Federal Financial Relations Act 2009
Last day to disallow: 16 September 2015 (Senate)
Purpose
2.445
The Federal Financial Relations (National Specific Purpose Payments)
Determination 2013-14 No. 1 (Determination 1) specifies the amounts payable for
the schools, skills and workforce development, and housing National Specific
Purpose Payments (National SPPs) for 2013-14. The Federal Financial Relations
(National Specific Purpose Payments) Determination 2013‑14 No. 2 (Determination 2)
specifies the amount payable for the Disability National SPP for 2013-14. These
instruments are referred to as 'the determinations'.
2.446
Measures raising human rights concerns or issues are set out below.
Background
2.447
The committee first commented on the determinations (including a number
of instruments relating to national partnership payments) in its Twenty-eighth
Report of the 44th Parliament, and requested further
information from the Treasurer as to whether the determinations were compatible
with Australia's human rights obligations.[145]
2.448
The committee then considered the Treasurer's response in its Thirtieth
Report of the 44th Parliament, and concluded its examination of
the instruments relating to national partnership payments. The committee
requested further information in relation to the remaining instruments and
their compatibility with Australia's international human rights obligations.[146]
Payments to the states and territories for the provision of health,
education, employment, housing and disability services—National Specific
Purpose Payments
2.449
Under the Intergovernmental Agreement on Federal Financial
Relations (the IGA), the Commonwealth provides National SPPs to the states and
territories as a financial contribution to support state and territory service
delivery in the areas of schools, skills and workforce development, disability
and housing.
2.450
The Federal Financial Relations Act 2009 provides for the
minister, by legislative instrument, to determine the total amounts payable in
respect of each National SPP, the manner in which these total amounts are
indexed, and the manner in which these amounts are divided between the states
and territories. The Determinations have been made in accordance with
these provisions.
2.451
Payments under the determinations assist in the delivery of services by
the states and territories in the areas of health, education, employment,
disability and housing. Accordingly, the determinations engage a number of
human rights. Whether those rights are promoted or limited will be determined
by the amounts of the payments in absolute terms and in terms of whether the
amounts represent an increase or decrease on previous years.
2.452
The committee has previously noted, in its assessment of appropriations
bills, that proposed government expenditure to give effect to particular
policies may engage and limit and/or promote a range of human rights. This
includes rights under the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and Cultural Rights
(ICESCR).[147]
Multiple rights
2.453
The committee considered in its previous analysis that the
determinations engage and may promote or limit the following human rights:
-
right to equality and non-discrimination (particularly in
relation to persons with disabilities);[148]
-
rights of children;[149]
-
right to work;[150]
-
right to social security;[151]
-
right to an adequate standard of living;[152]
-
right to health;[153]
and
-
right to education.[154]
Compatibility of the determinations
with multiple rights
2.454
The statements of compatibility for the determinations each simply state
that the instruments do not engage human rights.[155]
2.455
Australia has obligations to progressively realise economic, social and
cultural rights using the maximum of resources available and this is reliant on
government allocation of budget expenditure. The obligations under
international human rights law are on Australia as a nation state—it is
therefore incumbent on the Commonwealth to ensure that sufficient funding is
provided to the states and territories to ensure that Australia's international
human rights obligations are met.
2.456
Where the Commonwealth seeks to reduce the amount of funding pursuant to
National SPPs, such reductions in expenditure may amount to retrogression or
limitations on rights.
2.457 The committee
therefore sought the advice of the Treasurer as to whether the Determinations
are compatible with Australia's human rights obligations, and particularly,
whether the Determinations are compatible with Australia's obligations of
progressive realisation with respect to economic, social and cultural rights;
whether a failure to adopt these Determinations would have a regressive impact
on other economic, social and cultural rights; whether any reduction in the
allocation of funding (if applicable) is compatible with Australia's
obligations not to unjustifiably take backward steps (a retrogressive measure)
in the realisation of economic, social and cultural rights; and whether the
allocations are compatible with the rights of vulnerable groups (such as
children; women; Aboriginal and Torres Strait Islander Peoples; persons with
disabilities; and ethnic minorities).
2.458
The Treasurer's response explained the various rights that the
instruments engage and promote. However, the committee considered that the
response did not explain whether the payments have changed over time (as any
reduction in payments could limit or have a retrogressive impact on human rights).
2.459
The committee therefore requested further information from the Treasurer
as to whether the determinations are compatible with Australia's international
human rights obligations, in particular, whether there has been any reduction
in the allocation of funding, and if so, whether this is compatible with
Australia's obligations not to unjustifiably take backward steps (a
retrogressive measure) in the realisation of economic, social and cultural
rights.
Treasurer's response
On 11 November 2015, Mr Laurie
Ferguson MP wrote to me in his role as Deputy Chair of the Parliamentary Joint
Committee on Human Rights, seeking additional information regarding the human
rights compatibility of two instruments made by my predecessor.
This followed the advice that I provided
to the Committee in my letter of 14 October 2015 that the determination and
payment of National Specific Purpose Payments (NSPPs) to the States and
Territories for 2013-14 (F2015L00877 and F2015L00878) assisted in the
realisation of a number of human rights, and that neither the determination nor
payment of the NSPPs had a detrimental impact on any human rights.
In its Thirtieth Report of the 44th
Parliament, the Committee requested further information about how funding for
the determinations has changed over time; specifically, whether there has been
any reduction in funding.
Funding for the NSPPs, including
the growth from year to year, is in line with Schedule D of the
Intergovernmental Agreement on Federal Financial Relations. The funding amounts
for the Schools, Skills and Workforce Development, Affordable Housing, and
Disability NSPPs between 2011-12 and 2013-14 are attached.
The Skills and Workforce
Development, Affordable Housing, and Disability Services NSPPs have not
experienced a reduction in funding over this period. In fact, the funding
amounts for each have increased.
The determination of the National
Schools NSPP for 2013-14 provided funding for government schools of $2,080.3
million. This is a reduction relative to previous years. The reduction is
because Students First funding replaced the National Schools NSPP (and various
National Partnership payments) on 1 January 2014. Thus the NSPP funding was
only for half of the 2013-14 financial year.
Once Students First funding for
government schools is taken into account, the total funding provided to
government schools in 2013-14 was $4,475.4 million. This constitutes a
year-on-year increase in funding over this period.
On this basis, I confirm my
previous assessment that the determination and payment of NSPPs assists in the
realisation of a number of human rights, and neither the determination nor
payment of these particular NSPPs has a detrimental impact on any human rights.[156]
Committee response
2.460
The committee thanks the Treasurer for his response.
2.461
In particular, the committee thanks the Treasurer for providing a
comparison of funding amounts for the various NSPPs over recent years. The
committee considers that the response demonstrates that there has been no
reduction in funding allocation to the NSPPs in these determinations, and as
such, that these payments would not have a retrogressive impact on human
rights.
2.462
The committee therefore considers that the determinations are
compatible with Australia's international human rights obligations.
The Hon Philip Ruddock MP
Chair
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