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 3.
Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017
Purpose |
Seeks to make a range of
amendments to the Australian Citizenship Act 2007 and other
legislation including eligibility requirements, good character requirements
and review of decisions |
Portfolio |
Immigration and Border
Protection |
Introduced |
House of Representatives,
15 June 2017 |
Rights |
Obligation to consider the
best interests of the child; children's right to nationality; children to be
heard in judicial and administrative proceedings; quality of law; fair
hearing; to take part in public affairs; freedom of movement (see Appendix
2) |
Previous report |
8 of 2017 |
Status |
Concluded examination |
Background
2.3
The committee previously examined the Australian Citizenship and Other
Legislation Amendment Bill 2014 (2014 bill) in its Eighteenth Report of the
44th Parliament and Twenty-Fourth Report of the 44th Parliament.[1] The 2014 bill lapsed at the prorogation of the 44th parliament.
2.4
The committee reported on the Australian Citizenship Legislation
Amendment (Strengthening the Requirements for Australian Citizenship and Other
Measures) Bill 2017 (2017 bill) in its Report 8 of 2017.[2]
2.5
The 2017 bill contains a number of reintroduced measures that were
previously contained within the 2014 bill, as well as a number of new measures.
In relation to the reintroduced measures, the committee refers to its concluded
consideration (in its Report 8 of 2017), which includes consideration
of:
- the power to revoke Australian citizenship due to fraud or
misrepresentation – removal of court finding (the obligation to consider the
best interests of the child, the child's right to nationality, the right of the
child to be heard in judicial and administrative proceedings, the right to a
fair trial and a fair hearing and the right to freedom of movement);
- extending the good character requirement to include applicants
for Australian citizenship under 18 years of age (the obligation to consider
the best interests of the child);
- citizenship to a child found abandoned in Australia (the
obligation to consider the best interests of the child and a child's right to
nationality);
- limiting automatic citizenship at 10 years of age (obligation to
consider the best interests of the child and a child's right to nationality);
- personal ministerial decisions not subject to merits review
(right to a fair hearing);
- ministerial power to set aside decisions of the AAT if in the
public interest (right to a fair hearing); and
- extension of bars to citizenship where a person is subject to a
court order (right to equality and non-discrimination).[3]
2.6
The committee also requested a response from the Minister for
Immigration and Border Protection by 28 August 2017 in relation to two new
measures.[4]
2.7
The minister's response to the committee's inquiries was received on 30
August 2017. The response is discussed below and is reproduced in full at Appendix 3.
Requirement to provide evidence of English language proficiency
2.8
The bill proposes to amend the general eligibility criteria under
section 21(2) of the Australian Citizenship Act 2007 (Citizenship Act),
to require that applicants have 'competent English'. This is a new measure not
previously introduced. The current provision requires applicants to possess
'basic English', demonstrated via the existing citizenship test.[5] Proposed section 23(9)(a)
provides that the minister may, by legislative instrument, determine the
circumstances in which a person has competent English.
Compatibility of the measure with the right to
equality and non-discrimination
2.9
The right to equality and non-discrimination is protected by articles 2,
16 and 26 of the International Covenant on Civil and Political Rights (ICCPR),
article 2 of the International Convention on Economic, Social and Cultural
Rights (ICESCR), article 2 of the Convention on the Rights of the Child (CRC),
article 5 of the Convention on the Rights of Persons with Disabilities (CRPD),
and the International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD).
2.10
'Discrimination' under the ICCPR encompasses both measures that have a
discriminatory intent (direct discrimination) and measures which have a
discriminatory effect on the enjoyment of rights (indirect discrimination).[6] The UN Human
Rights Committee has explained indirect discrimination as 'a rule or measure
that is neutral at face value or without intent to discriminate', which
exclusively or disproportionately affects people with a particular personal
attribute (for example race, national origin, language, social origin or
disability).[7]
2.11
Whilst states enjoy some discretion in differentiating between nationals
and non-nationals, they still remain bound by non-discrimination obligations
where differentiating between non-nationals in requests for naturalisation and
citizenship.[8] The UN Committee on the Elimination of Racial Discrimination has stated that states
are obliged to:
Ensure that
particular groups of non-citizens are not discriminated against with regard to
access to citizenship or naturalization, and to pay due attention to possible
barriers to naturalization that may exist for long-term or permanent residents;
Recognize that
deprivation of citizenship on the basis of race, colour, descent, or national
or ethnic origin is a breach of States Parties’ obligations to ensure
non-discriminatory enjoyment of the right to nationality...[9]
2.12
Differential treatment will not constitute unlawful discrimination if
based on reasonable and objective criteria such that it serves a legitimate
objective, is rationally connected to that objective and is a proportionate
means of achieving that objective.[10]
2.13
The measure differentiates between non-nationals in requests for
citizenship on the basis of their language competency. As the previous human
rights analysis stated, it therefore engages the right to equality and
non-discrimination on the basis of language, and may also indirectly
discriminate on the basis of national origin, in causing a disproportionate
impact on individuals from countries where English is not the national language
or widely spoken.[11] Raising the level of English required from basic to competent may also increase
the disproportionate impact on those with disabilities that do not rise to
'mental incapacity', those who have not benefited from regular education,
and/or those whose education was interrupted by war, trauma or other events.
2.14
The previous analysis stated that the concern that the measure would
have a disproportionately negative effect on particular groups finds some
support in data on the current test, which indirectly tests basic English. The top ten countries of birth for the offshore humanitarian programme
are all countries where English is not an official language.[12] Humanitarian migrants are also more likely to have experienced traumatic events
and interrupted schooling prior to migration.[13] From 2014-2015, 98.6% of those who sat the current citizenship test passed, and 1,635
people failed. Humanitarian Programme applicants fail the current test at
higher rates than other migration streams, with 8.8% failing the test compared
to 0.03% of Skill Stream applicants, and 2% of the Family Stream.[14] Humanitarian Programme applicants also sat the test 2.4 times on average,
compared to 1.1 for the Skill Stream. Where a
measure impacts on particular groups disproportionately, it establishes prima
facie that there may be indirect discrimination.[15]
2.15
The statement of compatibility acknowledges that the right to
non-discrimination is engaged, stating:
This measure also
engages Articles 2(1) and 26 of the ICCPR, described above. These Articles are
engaged on the basis that the measure may be seen to discriminate on the basis
of national origin by treating those applicants with lower levels of English language
proficiency differently to applicants who are more proficient in the English
language. However, this is not dissimilar to the current legislation which
requires applicants to possess a basic knowledge of the English language; this
is presently assessed through the existing citizenship test. Further, this
measure emphasises the importance of having competent English language and
ensures that aspiring citizens can integrate into and contribute to the
Australian community, including by obtaining employment, and/or undertaking
vocational/ tertiary education. Insofar as the measure may limit this right,
any such limitation is thus a reasonable and proportionate response to the
objective of promoting social participation and encouraging new citizens to fully
participate in Australian life.
The proposed
amendments increase the level of English language required to be held by
applicants for citizenship by conferral. This requirement ties in with the new
four-year residence requirement to provide aspiring citizens sufficient time to
reach a competent level of English. This is important because English language
proficiency is essential for economic participation, social cohesion and
integration into the Australian community. Those who are currently entitled to
the Adult Migrant English Program will still be able to access this program to
improve their English language skills.[16]
2.16
The previous analysis stated that it is accepted that 'promoting social
participation and encouraging new citizens to fully participate in Australian
life' can be a legitimate objective for the purposes of human rights law.
However, it must also be demonstrated that the limitation imposed is effective
in achieving (that is, rationally connected to) that objective. It is unclear
from the statement of compatibility as to whether the measure will be effective
in achieving its stated objective. The statement of compatibility states that
'English language proficiency is essential for economic participation, social
cohesion and integration into the Australian community', indicating that
'emphasis[ing] the importance of having competent English language' will
promote full participation in Australian life.[17] However, the measure itself excludes permanent residents if the minister is not
satisfied that they meet the new 'competent English' standard from
participating in Australian life as citizens. This raises questions as to
whether the measure undermines its apparent objective of promoting social
participation.
2.17
Should a measure be rationally connected to a legitimate objective, it
must be demonstrated that the measure is a proportionate means to achieve the stated
objective. Under human rights law, this requires the measure to be the least
rights restrictive means of achieving the stated objective.
2.18
The statement of compatibility mentions a number of exemptions to the
English language requirement.[18] These exemptions include: persons who have a permanent or enduring physical or
mental incapacity that means that the person is not capable of understanding
the application, demonstrating competent English, or demonstrating an adequate
knowledge of Australia and citizenship; persons over 60 or below 16 years of
age; persons suffering a permanent loss or substantial impairment of hearing,
speech or sight at the time that the application is made; persons born outside
Australia to former Australian citizens; and persons born in Australia who have
never been a national or citizen of any country, and are not entitled to acquire
the nationality or citizenship of any foreign country. These exemptions do not
address all those who may be indirectly discriminated against by the measure,
but do lessen the rights-restrictive nature of the measure.
2.19
The proposed legislation does not specify what is meant by the new
standard of 'competent English' and how the standard will differ from 'basic
English'. Rather, details regarding the definition of 'competent English', the
means of testing, and any further exemptions have been left to delegated
legislation. Some information regarding the intended delegated legislation was
provided in the statement of compatibility:
It is intended that
the instrument will be similar, where relevant, to the Language Tests, Score
and Passports 2015 (IMMI 15/005) prescribed
in the Migration Regulations 1994. The instrument will specify the
English language test providers, scores, and exemptions to meet the English
language requirement prior to applying for citizenship by conferral. It will
also determine the situations where people are not required to undertake
English language testing, for example, if they are a passport holder of the
United Kingdom, the Republic of Ireland, Canada, the United States of America
or New Zealand or have undertaken specified English language studies at a
recognised Australian education provider.[19]
2.20
The Language Tests, Score and Passports 2015 (IMMI 15/005) prescribe
a range of potential tests and measures, with scores ranging from the
International English Language Test System (IELTS) five to eight, using the
General Training exam. Under the IELTS scale, band score six is the lowest
level classified as a 'competent user', defined as 'the test taker has an
effective command of language despite some inaccuracies, inappropriate usage
and misunderstandings. They can use and understand fairly complex language,
particularly in familiar situations.'[20] Band six of the IELTS, using the Academic test, is the requisite standard for
tertiary study in Australian universities.[21] The description of the level of English remains the same for both the Academic
and General Training tests.
2.21
The previous analysis stated that the prospect of the measure defining
'competent English' as level six IELTS raises serious concerns as to whether it
is a rationally connected and proportionate method of achieving the objective
of 'promoting social cohesion and encouraging new citizens to fully participate
in Australian life.'
2.22
The statement of compatibility refers to the Adult Migrant English
Program (AMEP) remaining available for certain migrants to improve their
English skills. AMEP is funded by the Australian government and provides up to
510 hours of free English language lessons to eligible migrants and
humanitarian entrants, who speak little to no English. On acquiring 'functional
English', or approximately IELTS 4 to 5, clients must exit the
program.[22] This indicates that this program is not in fact capable of bringing adult
migrants to the standard of 'competent English' as it exists under the IELTS.
In any event, a recent review found that only 7% of AMEP clients achieve
functional English after 500 hours of tuition.[23] The preceding analysis stated that it was therefore difficult to accept that migrants
will be supported to acquire the requisite level of testable English on the
information provided in the statement of compatibility, exacerbating the
disproportionate impact on those who, due to the personal attributes outlined
above, require support to reach that level.
2.23
Finally, the indication in the explanatory memorandum that a person will
not be required to undertake language testing to the 'competent English'
standard if they are a passport holder of the United Kingdom, Republic of
Ireland, Canada, the United States of America or New Zealand, raised the
prospect of further impermissible discrimination between non-nationals in
requests for citizenship. It is not apparent that passport holders from these
countries can be automatically assumed to have 'competent English',
particularly if that standard is aligned to the standard currently required to
study at a university level.
2.24
The committee therefore sought further advice from the Minister for
Immigration and Border Protection as to:
- how the measure itself, rather than the goal of the measure, is
effective to achieve (that is, rationally connected to) the objective of
'promoting social cohesion and encouraging new citizens to fully participate in
Australian life'; and
- whether the limitation is a reasonable and proportionate measure
for the achievement of that objective, including:
- further information as to the intended definition and means of
demonstrating competent English;
- any further exemptions to the means chosen;
- any relevant safeguards in relation to the measure to protect
against the exclusion of persons from citizenship;
- whether government funded English education will be provided to
the proposed higher standard of competent English, and if so, how it is
proposed to ensure that this education will be effective to ensure that
permanent residents are not excluded from citizenship; and
- the compatibility of exemptions for passport holders of certain
countries from English language testing with the right to non-discrimination on
the grounds of nationality in requests for citizenship.
Minister's response
2.25
In relation to how the measure is effective to achieve the objective of
'promoting social cohesion and encouraging new citizens to fully participate in
Australian life', the minister's response states:
Various contemporary researchers have identified lack of
language skills as a key barrier to settlement:
-
The ability of newcomers to settle
in a country with an unfamiliar language is dramatically impacted if the
individuals do not have the skills and knowledge to participate in simple daily
interactions and to communicate socially (Merrifield 2012);
-
Low level English is clearly a
significant barrier to finding employment in Australia (AMES 2015);
-
Lack of confidence is strongly
exacerbated by limited English skills (AMES 2015);
-
Family stream immigrants, and the
partners of skilled immigrants from non-English speaking countries, find it
harder to gain employment. (Productivity Commission Inquiry Report 2016);
-
Wage assimilation occurs slowly
for all groups, but is slowest for those from non-English speaking backgrounds
and English language proficiency plays an important role in wage differences in
country of origin. (Crawford School of Public Policy, Migration and
Productivity in Australia 2015);
-
Humanitarian migrants with good
English are 70% more likely to have a job than those with poor English after 18
months in Australia. (Boston Consulting Group 2017);
-
85% of humanitarian migrants who
speak English very well participate in the labour market compared to just 15%
who cannot speak English. (Boston Consulting Group 2017);
-
There are a number of barriers to
humanitarian arrivals in entering the labour market, with English language
skills of vital importance (Hugo 2012).
Contemporary literature supports the view that proficiency in
English plays a vital role in integrating into society. Policies that support
an ongoing commitment to improving English language skills are consistent with
international trends and research. Many countries are introducing or
formalising linguistic requirements for the purposes of citizenship and they
often require language tests or other formal assessment procedures.
English language skills are recognised as having the
potential to influence indicators of successful settlement such as:
-
social participation and
connection to the community
-
economic participation
-
personal wellbeing and life
satisfaction
-
independence
The Government wants all migrants and aspiring citizens to
take an ongoing approach to improving their English language, from arrival
through to permanent residency and subsequently to citizenship. This will
contribute to stronger settlement outcomes — feelings of belonging and value,
greater economic opportunities and social cohesion.
2.26
The further information indicates that, in an English-speaking country
such as Australia, English language skills are important for full participation
in a range of activities and may even contribute to feelings of belonging.
However, beyond pointing to the potential role of English in social inclusion,
the response does not clearly articulate exactly how barring individuals who do
not possess 'competent English' from citizenship will advance their social
inclusion.
2.27
It is perhaps implied in the minister's response that he considers that
a requirement of 'competent English' may incentivise learning English. However,
the information provided does not demonstrate that a significant reason for lower
levels of English language ability amongst certain migrants is the absence of
sufficient incentives to improve their English, as opposed to the difficulties
that they may face in improving their English (in fact, the minister's response
indicates that employment and wage opportunities already provide important
incentives to improve English). The response more generally does not provide
specific evidence or reasoning about the effectiveness of the English language
requirement as a means of advancing the stated objectives of the measure. Nor
does it engage with the issue that excluding permanent residents who do not
meet the 'competent English' standard from voting, serving on a jury and
otherwise participating as citizens of the Australian community could itself be
adverse to social cohesion. Accordingly, concerns remain that the measure may
not be rationally connected to its stated objective.
2.28
The minister's response also provides a range of information as to the
proportionality of the limitation. In relation to the level of English language
proficiency required under the measure, the minister's response confirms that
'competent English' will be equivalent to IELTS 6 and explains this standard:
Competent English in the migration framework is equivalent to
an IELTS 6 and is already required for certain visas.
The Government's position is that a competent level of
English language is important for all migrants' ability to integrate
successfully into the Australian community and that the appropriate level of
language ability for the modern Australian context is 'competent' or
'independent user', which equates to IELTS 6.
Competent English can be equated to an 'independent user' on
the Common European Framework of Languages (CEFR), which is an international
standard to describe language ability. CEFR describes an independent user at
the lower end of the scale (CERF B1) as someone who can:
-
understand the main points of clear
standard input on familiar matters regularly encountered in work, school,
leisure
-
deal with most situations likely
to arise whilst travelling in areas where the language is spoken
-
produce simple connected text on
topics which are familiar or of personal interest
-
describe experiences and events,
dreams, hopes and ambitions and briefly give reasons and explanations for
opinions and plans.
A CEFR independent user at the higher end of the scale (CERF
B2) which equates to IELTS 6 can:
-
understand the main ideas of
complex text on both concrete and abstract topics, including technical
discussions in his/her field of specialisation
-
interact with a degree of fluency
and spontaneity that makes regular interaction with native speakers quite
possible without strain for either party
-
can explain his or her viewpoint
on a topical issue
-
write clear, detailed text on a
wide range of topical subject[s]
-
express his or her views and
opinions in writing
-
understand most TV news, current
affairs programmes and the majority of films in a standard dialect and identify
the speakers’ feelings and attitudes
-
skim read a magazine or newspaper
and decide what to read
-
recognise the writer’s implied
views and feelings in a text
-
produce clear, detailed text on a
wide range of subjects and explain a viewpoint on a topical issue giving the
advantages and disadvantages of various options.
IELTS also have their own general definitions for a Level 6:
-
The test taker has an effective
command of the language despite some inaccuracies, inappropriate usage and
misunderstandings. They can use and understand fairly complex language,
particularly in familiar situations.
2.29
However, beyond describing what this level of English entails no
specific information is provided as to why this is considered to be necessary
to successfully integrate into the Australian community. Further, as set out in
the initial analysis, the achievement of this level of English may, when
balanced with work and/or caring duties, be unachievable for many permanent
residents from countries where English is not widely spoken, who have a
disability that does not rise to physical or mental incapacity, whose education
was interrupted by war or trauma, or who are otherwise inexperienced in formal
education settings.
2.30
The minister's response does not address whether the measure could lead
to a large group of permanent residents being unable to vote, serve on a jury,
access certain benefits and employment opportunities, or otherwise participate
in the Australian community as citizens until they reach the age of 60. As
non-citizens, they may also be more vulnerable to visa cancellation and
deportation. Those who were not born in Australia, and do not hold citizenship
or nationality of a foreign country, could be rendered stateless. This raises
concerns as to the proportionality of the measure. It also indicates that there
may not be sufficient support to ensure that classes of permanent residents are
not excluded from citizenship.
2.31
In relation to the committee's inquiries as to available exemptions
under the measure, the minister's response states:
Exemptions to the English language test will apply for those
applicants who:
-
have a permanent or enduring
physical or mental incapacity; or
-
are aged 60 or over or have a
hearing, speech or sight impairment; or
-
are aged under 16 years of age; or
-
applied under the born in Papua,
born to a former Australian citizen or statelessness provisions; or
-
are citizens of the United
Kingdom, the United States of America, Canada, New Zealand or the Republic of
Ireland.
Limited exemptions will also apply for applicants who have
undertaken specified English language studies at a recognised Australian
education institution, which will be set out in a legislative instrument.
Exemptions based on permanent or enduring physical or mental
incapacity:
-
Applicants for conferral aged over
18 can apply for Australian citizenship under the incapacity provisions where
they have a permanent or enduring physical or mental incapacity.
-
Applicants for conferral who apply
on the grounds of incapacity are required to provide a report from a qualified
specialist, which provides a link between the type of claimed incapacity and
the applicant’s personal circumstances.
This means the specialist must determine whether the person:
-
cannot demonstrate that they
understand the nature of the application or
-
are not capable of having
competent English or
-
cannot demonstrate that they have
an adequate knowledge of Australia or
-
Australian values or the
responsibilities and privileges of Australian citizenship.
Exemptions relevant to refugees:
-
An applicant who may have suffered
torture and or trauma prior to arrival in Australia may be eligible to be
assessed under the incapacity provisions for conferral of Australian
citizenship, if they have a specialist report that links their inability to
meet requirements to their incapacity.
Limited exemptions will also apply for applicants who have
undertaken specified English language studies at a recognised Australian
education institution, which will be set out in a legislative instrument.
2.32
Some of these exemptions may assist with the proportionality of the
limitation as they will allow persons, who may otherwise fail to meet the
'competent English' requirements, to become Australian citizens. The minister's
response provides useful information as to how the permanent physical or mental
incapacity provisions will be likely to operate, including in relation to the
situation of refugees, who are a particularly vulnerable group.
2.33
However, it appears that there may be many who suffer from issues that
may prevent them from demonstrating 'competent English' but their personal
circumstances may not be considered to rise to the level of an 'enduring
physical or mental incapacity'. For example, it is unclear the extent to which
a common learning disability such as dyslexia or an inability to perform in
exam conditions without reasonable adjustment would be able to be covered by
the 'mental incapacity' exemption. Further, it is noted that there are no
exemptions for other groups that may struggle to meet the competent English
language requirements such as those with caring responsibilities or those with
disrupted education.
2.34
In relation to whether government funded English education will be
provided to the proposed higher standard of competent English, the minister's
response states:
There is no proposal to extend the level of funding under
AMEP to the competent level. The Government’s policy is that eligible
applicants can access 510 hours of language training through the AMEP program
to assist them to successfully settle and confidently participate socially and
economically in Australia. If an applicant wishes to undertake further study
they may do so. These changes are aimed at encouraging aspiring citizens to
become independent users of the English language in order to promote
citizenship.
2.35
As noted above, AMEP is funded by the Australian government and provides
up to 510 hours of free English language lessons to eligible migrants and
humanitarian entrants, who speak little to no English. However, on acquiring
'functional English', or approximately IELTS 4 to 5, clients must exit the
program. Given that the minister's response states that there is no intention
to expand this program, it appears that AMEP, in its current form, is not
capable of bringing adult migrants to the standard of 'competent English'.
There are accordingly serious questions about whether there is adequate support
to bring adults up to the standard of competent English. This absence of
support makes it more likely that the measure is disproportionate to its
objective of promoting social cohesion.
2.36
The minister's response confirms that an individual will not be required
to undertake language testing to the 'competent English' standard if they are a
passport holder of the United Kingdom, Republic of Ireland, Canada, the United
States of America or New Zealand:
Under the Migration Regulations 1994, Instrument IMMI 07/055
was made on 28 August 2007 to specify English language tests and level of
English ability for General Skilled Migration (GSM).
-
That instrument included passports
from the United Kingdom, the United States of America, Canada, New Zealand or
Ireland
-
Consultation was undertaken before
the Instrument was made with key industry bodies, professional organisations,
educational institutions and State and Territory Governments.
-
In July 2011, Instrument IMMI
11/036 was made to specify the Republic of Ireland.
The introduction of a power for the Minister in the
citizenship context, to specify in a legislative instrument the types of
passports whose holders are taken to have 'competent English' will allow
flexibility in responding to changing language requirements and certainty for
applicants. The proposed instrument mirrors the GSM requirements to promote
consistency across the migration and citizenship programmes.
2.37
The minister's response provides no substantive explanation of this
differential treatment. Matters of consistency alone are generally not accepted
to be a sufficient basis for permissibly limiting a human right. As noted
above, it is not apparent that passport holders from these countries can be
automatically assumed to have 'competent English'. This raises further concerns
regarding differential treatment of non-nationals which was not addressed in
the minister's response. This is a further reason why the measure does not
appear to be a proportionate limitation on human rights.
Committee response
2.38
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.39
Noting the preceding analysis, the measure appears likely to be
incompatible with the right to equality and non-discrimination.
Integration into the community requirement
2.40
Proposed section 21(2)(fa) requires the minister to be satisfied that a
person 'has integrated into the Australian community' in order for that person
to be eligible for citizenship by conferral. The matters which the minister may
or must have regard to have been left to the minister to determine via
legislative instrument. This is a new measure not previously introduced.
2.41
The explanatory memorandum provides examples of the type of matters the
minister may determine that he or she may have regard to in deciding whether a
person has integrated into the Australian community:
a person's employment status, study being undertaken by the
person, the person's involvement with community groups, the school
participation of the person's children, or, adversely, the person's criminality
or conduct that is inconsistent with the Australian values to which they
committed throughout their application process.[24]
2.42
In relation to 'conduct inconsistent with the Australian values to which
they have committed', the bill proposes that applicants for citizenship by
conferral be tested on Australian values via the citizenship test, and be
required to sign an Australian Values Statement. Proposed subsection 46(5)
provides for the minister to determine, by legislative instrument, the content
of an Australian Values Statement.
2.43
Additionally, proposed subsection 52(4) excludes merits review for decisions
made personally by the minister in relation to citizenship by conferral, where
the minister issues a notice under section 47 stating that he is satisfied that
the decision was made in the public interest.
Compatibility of the measure with multiple rights
2.44
The previous analysis noted that 'integration into the community' is a
broad term that may raise different views as to its meaning. The intended
consideration of 'conduct inconsistent with the Australian values to which they
committed throughout their application process' is similarly imprecise,
particularly where those values are yet to be determined by the minister in a
legislative instrument.
2.45
Such broad discretion under proposed section 21(2)(fa) potentially raises
serious concerns of incompatibility with the right to equality and non-discrimination.
The previous analysis stated that, without safeguards, it is possible that the
minister could exercise this power in such a way as to have a disproportionate
effect on people on the basis of disability, nationality, religion, race or
sex. There is nothing on the face of the legislation which appears to limit his
or her discretion. The examples of matters the minister may take into account
cited in the explanatory memorandum are concerning. Many Australians may
experience unemployment, or may not complete study, or may face difficulties
with their children's school participation. It is not evident why it is
necessary to exclude permanent residents from Australian citizenship on these
grounds.
2.46
Depending on what matters are considered relevant to assessing
'integration into the Australian community', the previous analysis identified
that the measure may also engage and limit a range of other human rights. For
example, the measure may also limit the right to freedom of expression, should
it be construed to include statements considered by the minister to contravene
Australian values.
2.47
As discussed in the previous human rights assessment, the bill also
provides for the minister to exclude merits review of his decision to refuse a
citizenship application, where he issues a notice that the decision is in the
public interest. This raises the prospect that a person may be denied
citizenship, and the important rights and protection that citizenship entails,
without being able to effectively challenge the minister's determination or
test the information that it is based upon. While judicial review would remain
available, it is likely to be an inadequate safeguard due to the breadth of the
power conferred on the minister by the terms of the proposed bill.
2.48
The committee therefore sought the advice of the minister as to:
- whether the measure is compatible with the right to equality and
non-discrimination and other human rights;
- whether the basis on which a person will be considered to have
integrated into the Australian community could be made clear and defined in the
legislation;
- why it is not possible to allow merits review for all assessments
made under proposed section 21(2)(fa).
Minister's response
2.49
The minister provided the following explanation as to why 'integration'
is considered generally to be important:
Integration is important because the outcomes for each
person, and for the nation as a whole, depend on everyone reaching their
potential and being able and willing to work together to the benefit of all.
This requires the sort of connection and opportunity that integration implies,
and that social cohesion and national advancement require.
2.50
The minister provided the following information in relation to the basis
on which a person will be considered to have integrated in the Australian
community:
In order to achieve this outcome the assessment of an
aspiring citizens’ integration will be based on a range of factors, across
self-sufficiency, social, cultural and civic domains.
The indicators may include: employment records/efforts to
gain employment, involvement with community organisations (including the
spectrum of organisations found across a multicultural society), interest and participation
in civic issues and causes, appropriate care of children including their
education and health, promotion of acceptance of diversity and of own culture,
and knowledge of other cultures. The assessment about participation in and
contributions to Australia’s democratic, multicultural society.
2.51
However, as noted above, the range of possible factors that might be
assessed as a basis for 'integration' raise concerns as to whether these
factors may operate to disproportionately negatively affect particular groups
or otherwise engage and limit human rights. In relation to the compatibility of
the measure with the right to equality and non-discrimination, the minister's
response states:
The measure is compatible with the right to equality and
non-discrimination, noting that the right, at international law, to liberty of
movement and freedom to choose a residence is subject to any proportionate and
legitimate restrictions which are necessary to protect national security,
public order, public health or the rights or freedoms of others. The amendment
proposed here falls within such permitted restrictions.
2.52
A particular concern in relation to the operation of the measure is that
there is nothing on the face of the legislation which appears to limit the
minister's discretion in determining the basis on which a person will be
considered to have integrated into the Australian community. In relation to
whether this could be made clear and defined in the legislation, the minister's
response states:
The integration framework, under which a citizenship
applicant will be assessed, will:
-
be defined as clearly, objectively
and transparently as possible, to assist decision-makers to make fair and
consistent assessments, regardless of applicants’ culture, ethnicity or linguistic
background,
-
not include assessment of aspects
of integration that are beyond the applicant’s control, such as sense of
belonging, or periods of unemployment where the applicant has made appropriate
efforts,
-
allow for different circumstances
and preferences of applicants in the pathway they take towards integration—for
example, some may legitimately prioritise working above making social links,
and others may make contributions to an ethnic or religious community rather
than mainstream community organisations,
-
be inclusive of the sort of
diversity that typifies multicultural Australian society, and
-
be applied by well-trained staff
in cultural and diversity awareness.
It is proposed that this detail will be clarified and defined
in a legislative instrument, in order to provide certainty for applicants and
flexibility for the Minister.
As factors and indicators relating to integration may change
over time and may require urgent updating, an instrument provides the most
flexibility and is a reasonable means of providing certainty for applicants.
2.53
Defining the basis on which a person will be found to have integrated
into the Australian community by legislative instrument may address the concern
that the exercise of the power, as presently proposed, is broad and
unconstrained. However, it is noted that the scope of the power in the bill
would currently permit the legislative instrument to contain matters regardless
of whether or not they raise human rights concerns. This legislative instrument
will need to ensure that the integration into the community criterion is
applied in a manner compatible with human rights, including ensuring that it is
not indirectly discriminatory, bearing in mind the significant consequences of
denying a permanent resident the citizenship to which they are otherwise
entitled. Should the bill be passed, the committee will assess the legislative
instrument for compatibility with human rights.
2.54
In relation to the provision to exclude merits review of the minister's personal
decision to refuse a citizenship application, the minister's response states:
An application may be made to the Administrative Appeals
Tribunal (AAT) for review of a decision to refuse to approve a person becoming
a citizen. Where the decision-maker is not satisfied that the person has
integrated into the Australian community and the decision-maker refuses to
approve the person becoming a citizen, the question of whether the person has
integrated into the Australian community would form part of a review conducted
by the AAT.
A decision made personally by the Minister, where the
Minister is satisfied that the decision was made ‘in the public interest’,
would be excluded from review by the AAT. The exclusion from merits review of
public interest decisions made personally by the Minister is consistent with
similar provisions involving personal decisions of the Minister under the
Migration Act 1958. As a matter of practice, it is expected that only
appropriate cases will be brought to the Minister’s personal attention so that
merits review is not excluded as a matter of course.
Further if an integration question was so significant that it
was brought to the Minister’s personal attention, then there is probably a
serious question of the applicant’s character, and the applicant would more
likely be refused on character grounds in these circumstances.
2.55
Matters of consistency are generally insufficient for a measure to be a
permissible limitation on human rights. Not only does this measure raise
concerns in relation to the right to a fair hearing, it also raises concerns in
relation to whether the measure could be a proportionate limitation on other
human rights. In particular it raises concerns about whether there are adequate
and effective safeguards in relation to the operation of the measure.
Committee response
2.56
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.57
The preceding analysis indicates that, noting the broad scope of
the proposed power, there may be human rights concerns in relation to its operation.
This is because its scope is such that it could be used in ways that may risk
being incompatible with human rights. However, setting out criteria for the
exercise of this power by legislative instrument may be capable of addressing
some of these concerns. If the bill is passed, the committee will consider the
human rights implications of the legislative instrument once it is received.
Passports Legislation Amendment (Overseas Travel by Child Sex Offenders)
Bill 2017
Purpose |
Amends the Australian
Passports Act 2005 and Foreign Passports (Law Enforcement and
Security) Act 2005 to require the minister to deny a passport or demand
the surrender of a foreign travel document when an Australian citizen is on a
state or territory child sex offender register with reporting obligations;
and the Criminal Code Act 1995 to create an offence for a registered
child sex offender with reporting obligations to travel, or attempt to
travel, overseas without permission from a relevant authority |
Portfolio |
Foreign Affairs and Trade |
Introduced |
House of Representatives, 14
July 2017 |
Right |
Freedom of movement (see Appendix
2) |
Previous report |
7 of 2017 |
Status |
Concluded examination |
Background
2.58
The committee first reported on the Passports Legislation Amendment
(Overseas Travel by Child Sex Offenders) Bill 2017 (the bill) in its Report
7 of 2017 and requested a response from the Minister for Foreign Affairs by
22 August 2017.[25]
2.59
The bill passed both houses of parliament on 20 July 2017 and received
royal assent on 26 July 2017.
2.60
The minister's response to the committee's inquiries was received on 30
August 2017. The response is discussed below and is reproduced in full at Appendix 3.
Denial or cancellation of passport and criminal offence to travel overseas
2.61
Section 22AA of the bill provides that a passport must not be issued and
must be cancelled where a 'competent authority' makes a refusal or cancellation
request.
2.62
Such a request may be made in relation to a 'reportable offender', which
means an Australian citizen whose name is entered on a child protection
register of a state or territory and who has reporting obligations in
connection with that entry on the register.
2.63
A 'competent authority' is defined in the Australian Passports Act
2005 as a person with responsibility for, or powers, functions or duties in
relation to, reportable offenders or a person specified in a minister's
determination as a competent authority.[26]
2.64
Section 271A.1(1) further makes it an offence for an Australian citizen,
if their name is entered on a child protection offender register and the person
has reporting obligations in connection with that entry on the register, to
leave Australia.
2.65
Section 271A.1(3) provides an exception (an offence-specific defence) to
this offence, stating that the offence does not apply if a competent authority
has given permission for the person to leave Australia or the reporting
obligations of the person are suspended at the time the person leaves
Australia. The offence carries a maximum penalty of five years imprisonment.
Compatibility of the measures with
the right to freedom of movement
2.66
The right to freedom of movement includes the right to leave and return
to Australia. As international travel requires the use of passports, the right
to freedom of movement encompasses the right to obtain necessary travel
documents, such as a passport.
2.67
The initial human rights analysis stated that, by providing for the
denial or cancellation of a reportable offender's passport and creating a
criminal offence for a reportable offender to leave Australia, the measure
engages and limits freedom of movement. The statement of compatibility
acknowledges the limitation on the right but argues that this limitation is
permissible.[27]
2.68
The right to freedom of movement may be permissibly limited where the
limitation pursues a legitimate objective, is rationally connected to that
objective and is a proportionate means of achieving that objective.
2.69
The explanatory memorandum states that the purpose of the measures are to
ensure reportable offenders are prevented from travelling overseas 'to sexually
exploit or sexually abuse vulnerable children in overseas countries where the
law enforcement framework is weaker and their activities are not monitored'.[28] The statement of compatibility identifies the objective of the measures as
protecting the rights and freedoms of others and particularly the rights of
children to be protected from all forms of sexual exploitation and abuse.[29] The explanatory memorandum also provides evidence of the importance of this
objective.[30] As noted in the previous analysis, preventing the abuse of children is clearly
a legitimate objective for the purpose of international human rights law.
2.70
However, the statement of compatibility does not provide any specific
information, or any evidence, about how the measure will be effective to
achieve this objective (that is, rationally connected to the legitimate
objective).
2.71
In relation to the proportionality of the measures, the statement of
compatibility argues that:
The measure is proportionate and reasonable because it only
captures those who have been convicted in a court of law for child sex offences
and/or who have been placed by a court on a register with reporting obligations
due to the seriousness of their offences and/or risk of reoffending. The
passport measures will be legislated, are not arbitrary and will cease to take
effect once the person’s reporting obligations end.[31]
2.72
The statement of compatibility identifies one relevant safeguard in
relation to the measures, stating:
if there are good reasons for making an exception, a
competent authority will be able to permit a reportable offender to travel on a
case by case basis.[32]
2.73
The statement of compatibility provides no further information on the
operation of safeguards.
2.74
It appears from the explanatory materials that it is not intended that a
competent authority will make a case-by-case assessment of each reportable
offender before requesting that their passport be cancelled or not issued. The explanatory
memorandum notes that commonwealth legislation already provides that a child
sex offender's passport may be refused, cancelled or surrendered on the basis
of a competent authority's assessment of the offender's likelihood to cause
harm.[33] However, the explanatory memorandum states that:
This process is resource intensive, being done on a
case-by-case basis, and is subject to review by the Administrative Appeals
Tribunal. As a result, States and Territories do not use these provisions at
all. The measures in the Bill address these constraints to protect vulnerable
overseas children.[34]
2.75
The initial analysis stated that, while the current process may be more
resource intensive than the absence of a risk-based assessment, the statement
of compatibility does not explain why better resourcing the current process
would be insufficient to address the legitimate objective of protecting
children. This would appear to be a more tailored approach, allowing for
restriction of movement in those cases where an offender is likely to cause
harm. The statement of compatibility does not identify any problems with the
current legal test for the refusal, cancellation or surrender of a passport in
terms of targeting appropriate offenders.
2.76
It was noted that reducing the administrative inconvenience of
undertaking case-by-case assessments of offenders before depriving them of
their freedom of movement after they have served their criminal sentence is not
a legitimate objective for limiting a fundamental human right. Nor is reducing
any inconvenience to the government caused by the availability of rights of
review before the Administrative Appeals Tribunal (AAT).
2.77
The explanatory memorandum further states that following the changes
introduced by the bill, the number of competent authority requests 'will rise
substantially to capture the existing 20,000 registered child sex offenders and
additional 2,500 offenders added to the registers each year'.[35] Based on this information,
it appears that the bill would permit competent authorities to make requests in
relation to all reportable offenders without any consideration of the risk each
individual poses or their individual circumstances or whether it is necessary
to restrict travel entirely rather than to specific countries 'where the law
enforcement framework is weaker'.[36] Further, the criminal offence of leaving Australia under section 271A.1(1) would
apply to all those on a child protection offender register who have reporting
obligations unless an exception applies.
2.78
The existence of effective safeguards and exemptions is relevant to
whether the measures are a proportionate limitation on human rights. A
competent authority will be able to permit a reportable offender to travel
overseas on a case by case basis where there are 'good reasons' (such as
visiting a dying family member).[37] However, no information was provided as to the processes by which a person
could apply to the competent authority to seek permission to be able to travel
overseas or whether there is any process for merits review of any decision that
the competent authority makes. It appears that the criminal offence of leaving
Australia could apply unless a competent authority has given permission for the
person to leave Australia or the reporting obligations of the person are
suspended at the time the person leaves Australia. Permitting travel in
particular circumstances also does not address the concern about the potential
blanket application of the measures to all reportable offenders regardless of
individually assessed risk.
2.79
In this respect, it was also unclear from the bill, the statement of
compatibility and the explanatory memorandum which offenders will be included
as subject to having their passport cancelled or not issued. The explanatory
memorandum provides no detail of which offenders are put on a state or territory
child protection register, other than to say that the bill applies to
'registered child sex offenders'.[38] However, the bill provides that a reportable offender is one whose name is
entered on a state or territory 'child protection offender register', however
described. It appears that this may include those who have been convicted of
harmful, but not sexual, offences against children and offences not involving
children. For example, it appears that in the Northern Territory, Queensland,
Tasmania and Victoria, a person convicted of incest (which could apply in
relation to adults) could be included on a child protection register.[39] It therefore
appears that the range of offences for which a person could be included on a
child protection offender register may be broader than child sex offences. As
such, the measures appear to be overly broad with respect to achieving the
objective of preventing the abuse of children overseas. It is noted in this
respect that the obligation to ensure that legislation operates in compatibility
with Australia's international obligations rests with the commonwealth,
irrespective of whether the relevant legislation or processes operate at the
federal, state or territory level.[40]
2.80
It was noted in the initial analysis that the measures are stated to
pursue the legitimate objective of preventing the exploitation and abuse of
children overseas. However, the preceding analysis raises questions as to
whether the limitation placed on the right to freedom of movement is
proportionate and permissible.
2.81
The statement of compatibility has provided insufficient information to
justify this limitation. The committee accordingly sought the advice of the
minister as to:
-
how the measures, in altering the existing system for the refusal
of a travel document, are effective to achieve (that is, rationally connected
to) its legitimate objective; and
-
whether the limitation is reasonable and proportionate to achieve
its stated objective, including:
- why existing section 14 of the Australian Passports Act 2005,
which provides that a travel document may be refused if a competent authority
reasonably suspects a person would engage in harmful conduct, is not sufficient
to address the legitimate objective of the measures;
- whether other less rights restrictive approaches are reasonably
available, including approaches which are tailored to the risk posed by an
individual;
- how the measures are sufficiently circumscribed (including whether
a person whose name is entered on a child protection offender register could
include offenders who have not committed sexual offences against children and,
if so, what is the justification for doing so; whether the competent authority
will be required to consider individual risk factors before making a request);
and
- whether there are adequate and effective safeguards (including
the extent to which a reportable offender could seek review of a
refusal/cancellation request or a decision to refuse a reportable offender's
case-by-case request to travel 'for good reasons').
Minister's response
2.82
The minister's response does not directly address a number of the
committee's questions and instead provides information of a more general
nature. It does not provide any information on how the measures are effective
to achieve the legitimate objective of the measure.
2.83
For the reasons set out in the initial analysis, the measure imposes a
serious limitation on freedom of movement by providing for the blanket denial
or cancellation of a reportable offender's passport and creating a criminal
offence for a reportable offender to leave Australia, after the offender has
fully served any criminal sentence and without requiring any individual
assessment of the risk the person poses to children overseas. Accordingly, it
is likely to be disproportionate to its legitimate objective of preventing the
abuse of children.
2.84
The information provided by the minister in relation to the
proportionality of the measures, while helpful, does not indicate that the
measure is likely to be proportionate.
2.85
In relation to why the existing law (section 14 of the Australian
Passports Act 2005) was not sufficient to address the legitimate objective
of the measures, the minister's response states:
As noted in the Explanatory Memorandum accompanying the
legislation, the current scheme, which does provide for case by case assessment
of such child sex offenders, has proved inadequate to address the sexual abuse
of children overseas. The inconsistency of decisions on review, and the
resulting uncertainty as to the level of risk an offender must pose before they
will be denied a passport, has rendered section 14 requests ineffective. The
Government is not prepared to allow these factors to have the perverse effect of
helping to perpetuate the sexual abuse of children overseas.
2.86
This statement does not substantially explain why this case-by-case
system has been ineffective. While the minister's response points generally to inconsistencies
and uncertainties in decisions on review, it does not explain the scope of such
uncertainties and the extent to which these may, or may not, have been
addressed by less rights restrictive alternatives. For example, to the extent
that the concern is uncertainty in the level of risk that an offender must
pose, having a clearer definition of the level of risk in the legislation would
appear to be an available method to address this concern. This would still
provide for a tailored approach to the restrictions on movement, namely,
restriction only in those cases where an offender is likely to cause harm.
2.87
The minister's response also has not addressed the committee's question
as to whether the measure is sufficiently circumscribed. In this respect, as
noted above, it is unclear from the bill, the statement of compatibility and
the explanatory memorandum which offenders will be included as subject to
having their passport cancelled or not issued. Of particular concern is the
question of whether a person whose name is entered on a child protection
offender register could include offenders who have not committed sexual
offences against children.
2.88
In relation to whether there are adequate and effective safeguards in
relation to the operation of the measure, the minister's response relies on the
discretion to provide permission for travel, which was discussed in the initial
analysis, and explains:
In deciding whether or not to grant such permission, it is
open to a competent authority to have regard to any considerations that may be
relevant, such as the nature and severity of the offence, the length of time
the person has been on a child sex offender register, the reason for travel,
and the person's behaviour since being sentenced.
2.89
While the existence of this exception is relevant to the proportionality
of the measure, permitting travel in particular circumstances also does not
address the concern about the potential blanket application of the measures to
all reportable offenders regardless of individually assessed risk.
2.90
Additionally, it is unclear what process will be in place in relation to
the competent authority's exercise of this discretion. In this respect, the
minister's response notes that '[d]ecisions made by state or Territory
competent authorities will be subject to relevant State and Territory
administrative law. Decisions made at Commonwealth or State and Territory level
may be subject to judicial review'. However, while administrative review may be
a relevant safeguard, it is not set out which state and territory
administrative law in fact provides scope to review a decision declining to
grant permission to travel.
2.91
In relation to the availability of judicial review, the minister's
response states:
The new passport measures may be judicially reviewable in the
Federal Court. A person whose passport is cancelled or refused under the new
laws may be able to seek review of the legality of the decision to cancel or
refuse them a passport. This safeguard adequately protects a child sex offender
from having their passport wrongfully refused or cancelled and provides such
persons with legal remedies. Additionally, decisions by State and Territory
competent authorities, which are responsible for granting permission for child
sex offenders to travel, are subject to State and Territory administrative law.
2.92
However, federal judicial review is only a limited safeguard, as it is
restricted to considering the legality of the decision by the minister on the
enumerated grounds of judicial review. The nature of the measure requires the
minister to refuse to issue or to cancel a passport in response to a request by
a competent authority. This means that there is no requirement for the minister
to consider underlying matters of risk but only that the request has been made.
Accordingly, there would appear to be only limited matters that could possibly
be subject to federal judicial review.
2.93
The minister's response further explains in relation to the operation of
the measure that:
Ultimately, decisions about a child sex offender's ability to
travel will be made by a competent authority. In denying the child sex offender
a passport, the Minister will only be acting on the advice of a competent
authority. This is appropriate, given the competent authority's expertise, its
familiarity with the circumstances of the offender and the fact it is better
placed to assess the risk they pose to children overseas than the Minister.
2.94
While it may be appropriate to draw on the competent authority's
expertise and experience in assessing questions of risk, the concern remains
that there is no requirement that the authority be satisfied that the person in
fact poses a risk to children overseas, let alone any requirement of a
particular level of risk, unlike other regimes that place restrictions on high
risk sex offenders or violent offenders.
Committee response
2.95
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.96
In light of the information provided, the preceding analysis
indicates that the measure is likely to be incompatible with the right to
freedom of movement.
Compatibility of the measure with
the right to a fair hearing
2.97
The right to a fair trial and fair hearing is protected by article 14 of
the International Covenant on Civil and Political Rights (ICCPR) and applies to
both criminal and civil proceedings, including where rights and obligations are
determined. The initial analysis stated that the measures may engage and limit
this right due to the restricted scope that is provided for review of the denial
or cancellation of an individual's passport and other decisions in this
process. The decision to deny or cancel an Australian passport will not be
subject to merits review. The statement of compatibility argues that:
The decision to cancel an Australian passport following a
competent authority request on the grounds that a person is a reportable
offender should not be subject to administrative review as the Minister's
decision will be a mandatory decision. The Minister is required to deny a
passport following a request by a competent authority, which has appropriate
expertise and full understanding of the circumstances of the offender.[41]
2.98
In the previous analysis, it was acknowledged that, given the mandatory
nature of the minister's decision to cancel or deny a passport, merits review
of the exercise of this power would potentially provide substantively no
further grounds of review than judicial review. It was noted in this respect
that an individual would continue to have access to judicial review.
2.99
However, it is not addressed in the statement of compatibility whether
the decision by the competent authority to make a refusal or a cancellation
request would be subject to merits review. Nor does the statement of
compatibility address whether a decision by a competent authority in relation
to whether a registrable offender is to be granted permission to travel
overseas would be subject to merits review.
2.100
Accordingly, the committee requested the advice of the minister as to
whether decisions of the competent authority will be subject to merits review.
If not, the committee requested the advice of the minister as to whether the
measure is compatible with the right to a fair hearing.
Minister's response
2.101
In relation to whether the decisions of the competent authority will be
subject to merits review, the minister's response states:
As noted in the preceding paragraphs, child sex offenders
will have the ability to apply to competent authorities for permission to
travel. Decisions made by state or Territory competent authorities will be
subject to relevant State and Territory administrative law. Decisions made at
Commonwealth or State and Territory level may be subject to judicial review.
As such, under the measures, child sex offenders not only
have the right to have their travel restrictions reconsidered by competent
authorities but also relevant remedies under relevant Commonwealth, State and
Territory law. Accordingly, any limitation to the right to a fair hearing, to
the extent that it applies to a right to seek administrative review of a
decision, is reasonable and necessary to protect children overseas from sexual
exploitation and sexual abuse.
2.102
It is a relevant safeguard that state and territory competent
authorities will be subject to state and territory administrative law and that judicial
review may also be available. However, it is noted that each jurisdiction
varies as to whether particular decisions may be subject to merits review under
state and territory administrative law. This means that it is unclear from the
information provided the exact scope of merits and judicial review that will be
provided. Access to merits and judicial review may be an important aspect of
the right to a fair hearing under international human rights law.
Committee comment
2.103
The preceding analysis indicates that access to merits and
judicial review may be important aspects of the right to a fair hearing under
international human rights law. However, it is unclear from the information
provided by the minister what scope is afforded to merits and judicial review
in each state and territory.
Compatibility of the measure with
criminal process rights
2.104
Article 14(7) of the ICCPR protects the right not to be tried and
punished twice (the prohibition against double jeopardy). Article 15 of the
ICCPR provides that a heavier penalty shall not be imposed than the one which
was applicable at the time a particular criminal offence was committed. These
rights apply in relation to criminal offences. As set out in the committee's Guidance
Note 2, even if a penalty is classified as civil under domestic law
it may nevertheless be considered 'criminal' under international human rights
law.[42]
2.105
The statement of compatibility acknowledges that the measures may engage
these rights as they impose a new restriction on reportable offenders following
their conviction.[43] However, the statement of compatibility argues that the measures are compatible
with these rights as 'they are not penal in nature and support the existing
requirements for reportable offenders to report their intention to travel' and
'attach a civil consequence... to individuals who have been proven to engage in
particular criminal conduct'.[44]
2.106
The committee sought the advice of the minister as to the compatibility
of the measures with the right not to be tried and punished twice and the right
not to be subject to retroactive harsher penalties (having regard to the
committee's Guidance Note 2), addressing in particular:
- whether the prohibition on travel may be considered a 'penalty';
- whether the nature and purpose of the measures is such that the
prohibition on travel may be considered 'criminal';
- whether the severity of the prohibition on travel that may be
imposed on individuals is such that the penalties may be considered 'criminal';
and
- if the prohibition on travel is considered 'criminal' for the
purposes of international human rights law, whether the measure accords with
criminal process rights (including the right not to be tried and punished twice
for an offence (article 14(7)) and a guarantee against retroactive application
of harsher penalties (article 15).
Minister's response
2.107
As to whether the measure is compatible with the right not to be tried
and punished twice and whether the penalties may be considered criminal under
international human rights law, the minister's response states:
The measures in the Act do not constitute a 'double
punishment'. They are not penal in nature, and they support current reporting
obligations, which require child sex offenders to report an intention to travel
overseas to a relevant authority.
The measures are not 'criminal' but rather attach a civil
consequence (the loss of the ability to travel overseas) to individuals who
have been assessed to pose an ongoing risk to children. The civil consequences
are necessary to protect vulnerable children overseas, because the existing
requirements imposed on the individual are insufficient to effectively ensure
the child sex offender cannot cause further harm to children overseas.
The measures are proportionate and reasonable because they
only capture those who have been convicted in a court of law for child sex
offences and/or who have been placed by a court on a State or Territory child
sex offender register due to the seriousness of their offences and risk of
reoffending. The measures are legislated, are not arbitrary and will cease to
have effect once an offender's reporting obligations cease.
The new provision in the Criminal Code makes it an offence
for a child sex offender to travel overseas without permission from a competent
authority. A person who is accused of committing an offence against this
section will be afforded the same rights and procedural fairness as any person
convicted of any other offence against Commonwealth law.
2.108
Noting the information provided and the nature of passport cancellation
in this particular context, it appears that the measure may not constitute a
double punishment for the purposes of international human rights law.
Committee response
2.109
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.110
The information provided by the minister and the preceding
analysis indicate that the measure is likely to be compatible with the
obligation not to be tried and punished twice.
Compatibility of the measure with
the right to be presumed innocent
2.111
Article 14(2) of the ICCPR protects the right to be presumed innocent
until proven guilty according to law. Generally, consistency with the
presumption of innocence requires the prosecution to prove each element of a
criminal offence beyond reasonable doubt.
2.112
An offence provision which requires the defendant to carry an evidential
or legal burden of proof (commonly referred to as 'a reverse burden') with
regard to the existence of some fact engages and limits the presumption of
innocence. Where a statutory exception, defence or excuse to an offence is
provided in legislation, these defences or exceptions may also effectively
reverse the burden of proof.
2.113
As set out above, section 271A.1(1) makes it an offence for an
Australian citizen, if their name is entered on a child protection offender
register and the person has reporting obligations in connection with that entry
on the register, to leave Australia. Section 271A.1(3) provides an exception
(an offence-specific defence) to this offence, stating that the offence does
not apply if a competent authority has given permission for the person to leave
Australia or the reporting obligations of the person are suspended at the time
the person leaves Australia. Section 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption,
excuse, qualification or justification bears an evidential burden in relation
to that matter.
2.114
Reverse burdens will not necessarily be inconsistent with the
presumption of innocence provided that they are within reasonable limits which
take into account the importance of the objective being sought and maintain the
defendant's right to a defence. In other words, such provisions must pursue a
legitimate objective, be rationally connected to that objective and be a
proportionate means of achieving that objective.
2.115
As noted in the previous analysis, the statement of compatibility states
that any limitation on the right to be presumed innocent is justified on the
basis that it is reasonable that the burden of proving relevant circumstances falls
to the defendant as these 'will be particularly within the knowledge of the
person concerned and easily evidenced by a reportable offender'.[45] The statement
of compatibility further states that 'it is clearly more practical for the
defendant to prove that they satisfy the requirements of the defence'.[46]
2.116
However, in this case, the previous analysis stated that it was unclear matters
such as whether a competent authority has given permission for the person to
leave Australia or the reporting obligations being suspended at the time the
person leaves Australia, are particularly within the defendant's knowledge.
Further, it was unclear why it is 'clearly more practical for the defendant to
prove that they satisfy the requirements of the defence' or whether this
provides a necessary justification for the reverse burden.
2.117
The committee drew to the attention of the minister its Guidance Note
2 which sets out information specific to reverse burden offences.
2.118
The committee requested the minister to provide further information as
to:
- whether the reverse burden offence is aimed at achieving a
legitimate objective for the purposes of international human rights law;
- how the reverse burden offence is effective to achieve (that is,
rationally connected to) that objective;
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective; and
- whether the offence provision may be modified such that the fact
that a competent authority has not given permission for the person to leave
Australia, or the reporting obligations of the person are not suspended at the
time the person leaves Australia, is one of the elements of the offence, to be
proved by the prosecution in the ordinary way.
Minister's response
2.119
The minister provided the following information in relation to the
objective of the reverse burden offence:
The reverse burden offence is aimed at achieving a legitimate
objective for the purposes of human rights law, namely to promote several
rights contained in the Convention on the Rights of the Child [1991] ATS 4
including (but not limited to) the best interests of the child (Article 3) and
the right of the child to be protected from all forms of sexual exploitation
and sexual abuse (Article 34).
When child sex offenders are in Australia, they are monitored
and subject to the rigorous legal framework Australia has in place for child
sex offenders. If allowed to travel overseas, these offenders may evade their
reporting obligations and supervision. There is a higher risk of such offenders
reoffending in countries where the legal framework is weaker, their activities
are not monitored and child sexual exploitation is rampant. Accordingly, the
legislation appropriately puts the right of a child not to be sexually
exploited or abused above the right of a child sex offender to travel
internationally. The new offence appropriately criminalises such travel,
thereby achieving the objectives of the Convention on the Rights of the Child.
The offence legitimately balances the need to protect
children from the ongoing risk posed by child sex offenders. The prohibition on
a child sex offender travelling only applies so long as the offender has
reporting obligations under a child protection register. It does not amount to
a permanent travel ban.
2.120
It is clear from the information provided that the reverse burden
offence pursues a legitimate objective for the purposes of international human
rights law.
2.121
In relation to the proportionality of the reverse burden, the minister's
response states:
To the extent that this evidential burden limits a person's
right to be presumed innocent, the limitation is justified as the circumstances
that must be proven are particularly within the knowledge of the person concerned
and easily evidenced by such offenders. As a child sex offender must apply for
and be granted permission to travel it is reasonable that the burden of proving
that they have permission to travel overseas falls to the defendant. Similarly,
as a child sex offender must apply to a relevant authority to have their
reporting requirement suspended, it is reasonable that the burden of proving
that their reporting requirements have been suspended falls to the defendant.
2.122
However, under the right to be presumed innocent it is ordinarily the
duty of the prosecution to prove all elements of an offence. Provisions that
reverse the burden of proof and require a defendant to disprove, or raise
evidence to disprove, one or more elements of an offence, engage and limit this
right. While the minister's response argues that this is permissible, in this
instance, it is not clear that the question of whether a competent authority,
usually a state or territory government, has given permission to travel would
be peculiarly within the defendant's knowledge. Rather, it appears to be
evidence in respect of which both the prosecution and defendant would be able
to obtain.
2.123
The fact that the reverse burden is an evidential rather than a legal
burden assists with the proportionality of the measure. On this basis, the
measure may be compatible with the right to be presumed innocent.
Committee response
2.124
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.125
The preceding analysis indicates that the measure may be
compatible with the right to be presumed innocent.
Compatibility of the measure with
the right to protection of the family
2.126
The right to the protection of the family includes ensuring that family
members are not involuntarily and unreasonably separated from one another. The
initial analysis noted that, if the reportable offender has family members
residing overseas the measures may engage and limit this right. The statement
of compatibility acknowledges that this right is engaged but notes that a
competent authority will be able to approve travel to visit family members.[47] As set out above, there are a number of questions about whether the measures
are rationally connected to and a proportionate means of achieving their
legitimate objective.
2.127
The statement of compatibility provided insufficient information to
justify this limitation.
2.128
The committee accordingly sought the advice of the minister as to:
-
how the measures are effective to achieve (that is, rationally
connected to) the legitimate objective; and
-
whether the limitation is reasonable and proportionate to achieve
the stated objective (including the existence of relevant safeguards in
relation to the right to the protection of the family).
Minister's response
2.129
The minister's response emphasises the importance of the measure and
reiterates that existing laws have been inadequate by noting that hundreds of
child sex offenders have travelled overseas to countries where the legal
framework is not sufficient to either detect or deter conduct. As recognised in
the initial analysis, the measure clearly pursues a legitimate objective for
the purposes of international human rights law.
2.130
In relation to the proportionality of the limitation on the right to
protection of the family, the minister's response states:
As noted in the preceding paragraphs, the measure allows for
exceptions for travel by child sex offenders where appropriate circumstances
exist. In this regard it is worth noting that the right to the protection of
the family will already be prescribed where such offenders are prohibited from
accessing children including their own. In such circumstances it is appropriate
to extend those protections to other children, whether they are family members
or not, given the risks posed by child sex offenders.
2.131
It is true that in some cases a registrable offender's access to their
own children may already be limited, however, the measure prohibits travel for
a broader group of offenders, and places restrictions much more broadly than
restricting access to children. As set out above, the new system facilitates
passport refusal or cancellation without individually assessed risk. It could
operate to prohibit travel to countries with well-developed legal systems and
in circumstances where the travel is to visit adult family members.
2.132
The availability of an exception permitting an individual to travel is
relevant to the proportionality of the limitation. However, as set out above
there are uncertainties about how this exception will operate.
2.133
In relation to whether the measures are the least rights restrictive
alternative which is reasonably available, the minister's response states:
The measures introduced by the Government directly address
the risks posed to vulnerable children by child sex offenders and represent the
only workable and effective way to protect the human rights of vulnerable
children from abuse at the hands of registered child sex offenders with
reporting obligations.
2.134
However, the minister provides no further information or analysis to
support this statement. For the reasons set out above in relation to freedom of
movement, there are serious concerns that the measures may not be the least
rights restrictive approach as required to be a proportionate limit on the
right to protection of family. This includes that the measure appears to be
insufficiently circumscribed in its application to all reportable offenders,
its blanket application in the absence of a requirement of individually
assessed risk, questions about how the measure will be applied by competent
authorities and the inadequacy of safeguards. On this basis, it cannot be
concluded that the measure will operate in a manner compatible with the right
to protection of the family.
Committee response
2.135
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.136
The preceding analysis indicates that it cannot be concluded that
the measure is compatible with the right to the protection of the family.
Social Services Legislation Amendment (Better Targeting Student Payments)
Bill 2017
Purpose |
Seeks to amend the Social Security Act 1991 to restrict access to the relocation scholarship
to students relocating within Australia and students studying in Australia |
Portfolio |
Social Services |
Introduced |
House of Representatives,
21 June 2017 |
Right |
Social security (see Appendix
2) |
Previous report |
8 of 2017 |
Status |
Concluded examination |
Background
2.137
The committee first reported on the Social Services Legislation
Amendment (Better Targeting Student Payments) Bill 2017 (the bill) in its Report
8 of 2017, and requested a response from the Minister for Social Services
by 28 August 2017.[48]
2.138
The minister's response to the committee's inquiries was received on 25
August 2017. The response is discussed below and is reproduced in full at Appendix 3.
Restricting access to the relocation scholarship
2.139
The relocation scholarship provides supplementary payments to recipients
of Youth Allowance or ABSTUDY who relocate for tertiary study.[49]
2.140
The bill seeks to remove access to the relocation scholarship for:
- students whose parental home or usual place of residence is
outside of Australia and who relocate to attend university in Australia; and
- students studying in Australia who relocate to undertake part of
their Australian courses outside of Australia.[50]
Compatibility of the measure with
the right to social security
2.141
The right to social security recognises the importance of adequate
social benefits in reducing the effects of poverty and plays an important role
in realising many other rights.
2.142
Under international human rights law, Australia has obligations to progressively
realise the right to social security using the maximum of resources available.
Australia has a corresponding duty to refrain from taking retrogressive
measures, or backwards steps, in relation to the realisation of this right. The
previous analysis stated that restricting access to the relocation scholarship
would appear to be a backwards step in relation to social security and
accordingly this limitation on the level of attainment needs to be justified. It
was noted that for an individual student the loss of the relocation scholarship
is significant as it currently pays $4,376 in the first year and between $2,189
and $1,094 in subsequent years in addition to regular Youth Allowance or
ABSTUDY social security payments.[51]
2.143
Limitations on the right to social security may be permissible providing
that they address a legitimate objective, are rationally connected to that
objective and are a proportionate way to achieve that objective. The initial
human rights analysis noted that the statement of compatibility acknowledges
that the measure engages the right to social security and identifies the
purpose of the measure as to 'simplify and streamline the delivery of the
Relocation Scholarship to better reflect the policy intent of the Scholarship'.[52] However, 'simplifying' and 'streamlining' do not constitute legitimate
objectives for the purposes of international human rights law and do not
acknowledge the extent of the payment reduction. Rather, a legitimate objective
must address a pressing or substantial concern, and not simply seek an outcome
regarded as desirable or convenient.
2.144
It was noted in the initial analysis that the statement of compatibility
identifies some safeguards that may go to the proportionality of the
limitation, and therefore its compatibility with human rights. However, in
order to assess whether the measure is a proportionate limitation, it is first
necessary to identify a legitimate objective.
2.145
Accordingly, the committee sought the advice of the minister 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 for
the purposes of human rights law;
- how the measure is effective to achieve (that is, rationally
connected to) that objective; and
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective.
Minister's response
2.146
The minister explained the objective of the measure by reference to the
objective of the underlying relocation scholarship scheme:
Consistent with human rights law, the objective of the
Relocation Scholarship is to remove financial barriers to the educational
participation of students from low socio-economic status (SES) backgrounds,
particularly those from regional and remote areas and Indigenous students. This
is in recognition that regional and remote and Indigenous students face
additional costs in pursing education and have much lower participation rates
in higher education than students from major city areas of Australia. These
students may not have access to a local university, or their local university
may not offer the course of their choice.
Changes to the Relocation Scholarship were made on 1 January
2015, to limit the Scholarship to students relocating from or to regional areas
to study. Students relocating within or between major city areas were no longer
eligible for the Scholarship. This recognised that students from major cities
are more likely than students from regional areas to have a suitable higher
education institution accessible to their parental home.
These 2015 changes to the Relocation Scholarship failed to
fully implement the intent of the policy and students with a parental home or
usual place of residence overseas, and students who study overseas remained
eligible for the Relocation Scholarship. This is also inconsistent with the
objective of the Relocation Scholarship. Students whose parental home or usual
place of residence is overseas, or who study overseas, do not face the same
financial barriers to education as those in regional and remote areas of
Australia.
From 1 January 2018, schedule 1 of the Bill restricts the
Relocation Scholarship to students relocating within and studying in Australia.
This will meet the stated objective to better reflect the policy intent [of]
the Relocation Scholarship.
2.147
The objective of the relocation scholarship of removing financial
barriers to educational participation for students from low socio-economic
backgrounds is undoubtedly a legitimate objective for the purpose of
international human rights law.
2.148
While it is not stated in these terms in the minister’s response,
ensuring that laws give priority to the right to social security of the least
well-off members of society, in the context of the government having limited
financial resources, is likely to be a legitimate objective under international
human rights law. The minister refers to the greater financial difficulties
facing students in regional and remote areas when accessing education when
compared to students from major cities. Insofar as the measures seek to ensure
that the relocation scholarship is targeted at those who face the greatest
financial barriers to educational participation in the context of limited
government resources, it is likely to pursue a legitimate objective for the
purposes of international human rights law.
2.149
Limiting the scholarship to those in regional and remote areas, who are
considered to have the greatest need due to their geographical location,
appears in broad terms to be rationally connected to this objective. However,
it is noted that no information is provided to support the statement in the
minister's response that students whose parental home or usual place of
residence is overseas, or who study overseas, do not face the same financial
barriers to education as those in regional and remote areas.
2.150
As to the proportionality of the measure, the minister's response
states:
The limitation placed on access to the relocation scholarship
as a result of Schedule 1 is a reasonable and proportionate response to
achieving the objective to better reflect the policy intent of the measure, as
only those for who the payment was not intended will be affected.
The measure will not affect access to Youth Allowance, which
assists with the living costs associated with study, for those students moving
to Australia or moving overseas to study. Students undertaking study overseas
as part of their full-time Australian course may continue to receive Youth
Allowance for the entire period of their overseas study as long as the study
can be credited towards their Australian course.
In addition, Commonwealth supported students who undertake
part of their Australian course overseas often relocate for short periods of
time – for example, a semester or a year – and may be able to access OS-HELP
loans to assist with airfares, accommodation or other travel or study expenses.
2.151
The fact that students affected by the bill remain eligible for Youth
Allowance and in some circumstances OS-HELP appears to provide a safeguard such
that affected individuals could afford the basic necessities to maintain an
adequate standard of living in circumstances of financial hardship. This
supports an assessment the measure is proportionate to the objective of
ensuring that the relocation scholarship is targeted at those who face the
greatest financial barriers to educational participation in the context of
limited government resources. On this basis, the measure is likely to be
compatible with the right to social security. It is noted, however, that
information in support of the minister's statement as to the financial barriers
facing students whose parental home or usual place of residence is overseas, or
who study overseas, would have been of assistance to assessing whether the
measure was a permissible limitation on human rights.
Committee response
2.152
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.153
The preceding analysis indicates that the measure is likely to be
compatible with the right to social security.
Social Services Legislation Amendment (Payment Integrity) Bill 2017
Purpose |
Seeks to amend the Social
Security Act 1991 to change the residency requirements for the age
pension and the disability support pension by changing certain timeframes
which need to be met before claims will be deemed payable to eligible
recipients; increase the maximum liquid assets waiting period for Youth
Allowance, Austudy, Newstart Allowance and Sickness Allowance from 13 weeks
to 26 weeks; amend the Social Security Act 1991 and the Veterans'
Entitlements Act 1986 to cease payment of the pension supplement after
six weeks temporary absence overseas and immediately for permanent
departures; and amend A New Tax System (Family Assistance) Act 1999 to
align the income test taper rates so that all income above the higher income
free area is treated equally when calculating an individual's rate of family
tax benefit Part A |
Portfolio |
Social Services |
Introduced |
House of Representatives,
21 June 2017 |
Rights |
Social security; adequate
standard of living; equality and non-discrimination (see Appendix 2) |
Previous report |
7 of 2017 |
Status |
Concluded examination |
Background
2.154
The committee first reported on the Social Services Legislation
Amendment (Payment Integrity) Bill 2017 (the bill) in its Report 7 of 2017,
and requested a response from the Minister for Social Services by 22 August
2017.[53]
2.155
The minister's response to the committee's inquiries was received on 23
August 2017. The response is discussed below and is reproduced in full at Appendix 3.
Residency requirement for disability support pension and age pensions
2.156
The age pension and the disability support pension have a
10-year qualifying residence requirement before a person can access these
social security payments. Currently, under the residency requirements a
person must either have been an Australian resident for a continuous period of
at least 10 years or, alternatively, for an aggregate period (comprising
separate periods of residency) in excess of 10 years but including a continuous
period of at least 5 years within that aggregate.[54]
2.157
Schedule 1 of the bill proposes to amend the Social Security Act 1991 to tighten the residency requirements in order to qualify for the age pension
or the disability pension and will introduce a 'self-sufficiency' test. It is
proposed that in order to meet residency requirements, at least 5 years of the
10 years of continuous Australian residency period must be during a person’s
working life.[55]
2.158
Alternatively, where that 5 years working life test is not met, a person
must demonstrate 'self-sufficiency' by having 10 years continuous Australian
residency with greater than 5 years (in aggregate) relating to periods in which
a person has not been in receipt of an activity tested income support payment
(currently Austudy, Newstart, Youth Allowance and Special Benefit).[56]
2.159
If a person does not meet the 10 years continuous Australian residency
period, with 5 years during that person’s working life, or has not demonstrated
'self-sufficiency', then at least 15 years of continuous Australian residency
will be required to satisfy residency requirements.[57]
Compatibility of the measure with
the right to social security and the right to an adequate standard of living
2.160
The right to social security recognises the importance of adequate
social benefits in reducing the effects of poverty and plays an important role
in realising many other rights. The right to an adequate standard of living requires
state parties to take steps to ensure the availability, adequacy and accessibility
of food, clothing, water and housing. Australia has obligations in relation to
these rights for all people in Australia.
2.161
The initial human rights analysis stated that the proposed tightening of
the residency waiting requirements in order to qualify for the age pension or
disability support pension engages the right to social security and an adequate
standard of living because it reduces access to social security and may impact
on a person's ability to afford the necessities to maintain an adequate
standard of living.
2.162
Under international human rights law, Australia has obligations to
progressively realise the right to social security and the right to an adequate
standard of living using the maximum of resources available. Australia has a
corresponding duty to refrain from taking retrogressive measures, or backwards
steps, in relation to the realisation of these rights. The initial analysis
stated that the tightening of the residency waiting requirements would appear
to be a backwards step in the realisation of these rights and accordingly this
limitation on the level of attainment needs to be justified. Such limitations
may be permissible providing that they address a legitimate objective, are
rationally connected to that objective and are a proportionate way to achieve
that objective.
2.163
While acknowledging that the measure engages the right to social
security, the statement of compatibility states that 'the schedule does not
place limitations on human rights'.[58] The previous analysis noted that, as such, the short statement of compatibility
provides no substantive assessment of whether the measure constitutes a
justifiable limitation on the right to social security and the right to an
adequate standard of living for the purposes of international human rights law.
2.164
The committee therefore sought the advice of the minister as to:
- whether the measure is aimed at achieving a legitimate objective
for the purposes of human rights law;
- how the measure is effective to achieve (that is, rationally
connected to) that objective;
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective;
- whether there are safeguards available (such as access to Special
Benefit or exemptions);
- whether alternatives to reducing access to social security have
been fully considered; and
- how the measure complies with Australia's obligation to use the
maximum of its available resources to progressively realise the right to social
security and the right to an adequate standard of living.
Compatibility of the measure with
the right to equality and non-discrimination
2.165
'Discrimination' under the International Covenant on Civil and Political
Rights (ICCPR) encompasses both measures that have a discriminatory intent
(direct discrimination) and measures which have a discriminatory effect on the
enjoyment of rights (indirect discrimination).[59] The UN Human Rights Committee has explained indirect discrimination as 'a rule
or measure that is neutral at face value or without intent to discriminate',
which nonetheless exclusively or disproportionately affects people with a
particular personal attribute (for example race, national or social origin, age
or disability).[60]
2.166
The previous human rights analysis stated that, as the measure relates
to social security payments for older people and people with a disability, the
restrictions on access to such payments may have a disproportionate negative
effect on some members of these groups on the basis of protected attributes
(such as age, disability, national origin or race). In this case, it appears
that the measure may have a disproportionate impact on, for example, persons
with disabilities and older people from non-Australian national origins.
2.167
Where a measure impacts on particular groups disproportionately, it
establishes prima facie that there may be indirect discrimination.[61] Differential treatment
(including the differential effect of a measure that is neutral on its face)[62] will not constitute unlawful discrimination if the differential treatment is
based on reasonable and objective criteria such that it serves a legitimate
objective, is effective to achieve that legitimate objective and is a
proportionate means of achieving that objective.
2.168
However, this right was not addressed in the statement of compatibility
so no assessment was provided as to the compatibility of the measure with the
right to equality and non-discrimination.
2.169
The preceding analysis raises questions about the compatibility of the
measure with the right to equality and non-discrimination, noting that it
appears the measure may have a disproportionate negative effect on particular
groups. This right was not addressed in the statement of compatibility.
2.170
Accordingly, the committee sought the advice of the minister as to
whether the measure is compatible with the right to equality and
non-discrimination.
Minister's response
2.171
In relation to whether the measure is aimed at achieving a legitimate
objective for the purposes of international law, the minister's response
states:
This measure achieves a range of legitimate objectives,
including ensuring a sustainable and well-targeted payments system into the
future, given the ongoing Budget constraints.
Budget repair remains a key focus for this Government as
outlined in the Treasurer's Budget speech, and reiterated in the 2017-18 Budget
papers. The Government has made, and continues to make necessary and sensible
decisions to keep spending under control in order to return the Budget to
surplus. This measure is similarly designed to ensure welfare payment
expenditure is sustainable into the future.
The measure also encourages people who migrate to Australia
to be more self-supporting and ensures that people have some reasonable
connection to the Australian economy and society before being granted the Age
Pension or Disability Support Pension (DSP). The Australian income support
system differs from those of most other developed countries, in that it is
funded from general tax revenue, rather than from direct contributions by
individuals and employers. Despite this, many OECD countries require greater
than 10 years contributions in order to receive even a part pension, such as
Spain (15 years), Poland (20 years) and Japan (25 years).
This measure strengthens the notion that the retirement costs
of a person should be fairly distributed between countries where the person has
lived and worked during their working life. The Age Pension and DSP are
payments made for the long-term and once granted are generally paid for the
remainder of a person's life. This measure ensures that these long-term
payments are linked to a period of ongoing connection to Australia through
residence.
The measure addresses concerns raised by the Productivity
Commission (No. 77, 13 April 2016, Migrant Intake into Australia) regarding the
cost of parent migrants who have not resided in Australia during any part of
their working lives and who subsequently receive Australian social security
payments to financially support themselves in their retirement.
2.172
It is acknowledged that budgetary constraints and ensuring
sustainability are likely to be legitimate objectives for the purposes of
international human rights law. In this respect, the minster's response has
provided a range of information in support of the importance of these
objectives in the particular circumstances of the measure. It is further noted
that such reductions in access to social security are likely to be rationally
connected to these objectives.
2.173
In relation to the proportionality of the limitation, the minister's
response notes 'that 98 per cent of Age
Pension and DSP claimants will be unaffected by this measure'. The minister's
response also points to a number of safeguards which mean that some people who
have spent time overseas may still qualify for the DSP or the age pension:
Australia also has 30 International Social Security
Agreements that allow people from these agreement countries to apply for and
receive their foreign pension contributions in Australia. These International
Social Security Agreements also commonly allow people to combine periods of
residence in those countries with Australian residence for the purpose of
meeting the Age Pension or DSP residence requirements.
Further, the measure contains provisions to ensure migrants
subject to an Assurance of Support can access the Age Pension or DSP. An
Assurance of Support is given for migrants who enter Australia under certain
visa types. It is a commitment by an Australian resident to repay certain
social security payments that have been paid to migrants during their Assurance
of Support period. Under this measure, where an individual receives an income
support payment while under an Assurance of Support, the time spent in receipt of
that payment will not be included as time in receipt of an income tested income
support program.
2.174
The minister's response identifies access to Special Benefit social
security payments as a further relevant safeguard:
Importantly, there is a safeguard to ensure individuals can
maintain an adequate standard of living by providing access to Special Benefit.
Special Benefit is an income support payment that provides financial assistance
to people who, due to reasons beyond their control, are in financial hardship
and unable to earn a sufficient livelihood for themselves and their dependants.
The rate of Special Benefit is the same as Newstart Allowance. Recipients of
Special Benefit may also be entitled to supplementary payments such as Rent
Assistance and the Pension Supplement, if over age pension age.
2.175
As such, the Special Benefit appears to provide a safeguard such that
these individuals could afford the basic necessities to maintain an adequate
standard of living in circumstances of financial hardship. However, at the same
time, as Special Benefit is paid at a lower rate than either the DSP or the age
pension, there is a question about whether it would, in all such cases, be
sufficient to address sometimes complex needs.
2.176
The minister's response further notes that there are also other forms of
social security payments that individuals may be able to access:
Australian residents with dependent children who are serving
the Age Pension or DSP residence qualifying period will still have immediate
access to Family Assistance payment, such as Family Tax Benefit, where eligible
to assist with the cost of raising children in Australia.
2.177
The minister's response identifies a further safeguard in relation to
persons who incur a disability after their arrival in Australia:
The measure also contains safeguards for individuals who
incur a continuing inability to work after arrival in Australia, by not
applying the residency requirements for the purposes of DSP in such instances.
2.178
This is a relevant safeguard as it will assist to ensure that
individuals who incur an inability to work while in Australia will be able to
access the DSP on an equal basis.
2.179
Finally, the minister's response states that the measure also maintains
age pension and DSP residency exemptions for humanitarian and refugee entrants.
2.180
The kinds of safeguards identified in the minister's response are
relevant to the question of proportionality. In this case, the safeguards
appear to be designed to assist to ensure that the most vulnerable will
continue to have access to social security payments to meet basic necessities
and to avoid destitution in a range of circumstances. This supports an
assessment that the measure overall is likely to be a proportionate limitation
on the right to social security and the right to an adequate standard of
living. Accordingly, the measure appears likely to be compatible with the right
to social security and the right to an adequate standard of living.
Committee response
2.181
The committee thanks the minister for his response and has concluded
its examination of this issue.
2.182
In light of the safeguards identified in the minister's response,
the committee notes that the measure appears likely to be compatible with the
right to social security and the right to an adequate standard of living.
However, it recommends that the measure be monitored by government to ensure
that individuals are able to maintain an adequate standard of living in
circumstances of financial hardship.
Mr Ian Goodenough MP
Chair
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