New and continuing matters
1.1
This chapter provides assessments of the human rights compatibility of:
-
bills introduced into the Parliament between 11 and 14 September (consideration of 3 bills from this period has been
deferred);[1]
-
legislative instruments received between 11 August and 14 September
(consideration of 10 legislative instruments from this period has been
deferred);[2]
and
-
bills and legislative instruments previously deferred.
1.2
The chapter also includes reports on matters previously raised, in
relation to which the committee seeks further information following
consideration of a response from the legislation proponent.
1.3
The committee has concluded its consideration of three bills and
instruments that were previously deferred.[3]
Instruments not raising human rights concerns
1.4
The committee has examined the legislative instruments received in the
relevant period, as listed in the Journals of the Senate.[4]
Instruments raising human rights concerns are identified in this chapter.
1.5
The committee has concluded that the remaining instruments do not raise
human rights concerns, either because they do not engage human rights, they
contain only justifiable (or marginal) limitations on human rights or because
they promote human rights and do not require additional comment.
Response required
1.6
The committee seeks a response or further information from the relevant minister
or legislation proponent with respect to the following bills and instruments.
Crimes Legislation Amendment (Sexual Crimes Against Children and Community
Protection Measures) Bill 2017
Purpose |
To amend the Crimes Act
1914 to allow parole to be revoked without notice; remove the requirement
for the court to grant leave before admitting a video recording of an
interview of a vulnerable witness into evidence; remove the requirement for
vulnerable witnesses to be available to give evidence at committal
proceedings and to be cross examined; strengthen child sexual abuse offences
including introducing new offences; introduce increased maximum penalties for
child abuse offences; introduce mandatory minimum sentences for certain offences;
introduce a presumption against bail for a person alleged to have committed
serious child sex offences; introduce matters in respect of which the court
must have regard when sentencing an offender; insert a presumption in favour
of cumulative sentences; provide child sex offenders serve full terms of
imprisonment unless there are exceptional circumstances; provide additional
sentencing options; provide that if an offender is refused parole on the
basis of information that could prejudice national security this information
does not need to be disclosed |
Portfolio |
Justice |
Introduced |
House of Representatives,
13 September 2017 |
Rights |
Fair
trial; presumption of innocence; liberty (see Appendix 2) |
Status |
Seeking additional
information |
Mandatory minimum sentencing
1.7
Schedule 6 of the Crimes Legislation Amendment (Sexual Crimes Against
Children and Community Protection Measures) Bill 2017 (the bill) seeks to
introduce mandatory minimum sentences of imprisonment if a person is convicted
of particular child sexual abuse offences under the commonwealth Criminal
Code Act 1995 (Criminal Code).[5]
1.8
Where a person has previously been convicted of a Commonwealth child
sexual abuse offence and is subsequently convicted of a further child sexual
abuse offence, then mandatory minimum sentencing also applies to this
subsequent offence.[6]
Compatibility of the measure with
the right not to be arbitrarily detained
1.9
Article 9 of the International Covenant on Civil and Political Rights
(ICCPR) protects the right to liberty including the right not to be arbitrarily
detained. The United Nations Human Rights Committee has stated that
'arbitrariness' under international human rights law includes elements of
inappropriateness, injustice and lack of predictability.[7]
Depriving an individual of their liberty must be reasonable, necessary and
proportionate in all the circumstances in order to avoid being arbitrary.
1.10
An offence provision which requires mandatory minimum sentencing engages
the right to be free from arbitrary detention.[8]
Detention may be considered arbitrary where it is disproportionate to the crime
that has been committed (for example, as a result of a blanket policy).
Mandatory sentencing may lead to disproportionate or unduly harsh outcomes as
it removes judicial discretion to take into account all of the relevant
circumstances of a particular case in sentencing.
1.11
The right to liberty may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be arbitrary,
the measure must pursue a legitimate objective and be rationally connected
(that is, effective to achieve) and proportionate to achieving that objective.
1.12
The statement of compatibility acknowledges that the mandatory minimum
sentences engage and limit the right to liberty but argues that this limitation
is permissible.[9]
The statement of compatibility provides the following information about the
objective of the measure as:
...ensuring that the courts are handing down sentences for
Commonwealth child sex offenders that reflect the gravity of these offences and
ensure that the community is protected from child sex offenders. Current
sentences do not sufficiently recognise the harm suffered by victims of child
sex offences. They also do not recognise that the market demand for, and
commercialisation of, child abuse material often leads to further physical and
sexual abuse of children.[10]
1.13
Reflecting the gravity of offences generally appears to be a function of
the maximum term of imprisonment as set out in legislation. As such, based on
the information provided, it is unclear that this identified objective relates
to proposed mandatory sentencing. However, the other identified objective of
ensuring community protection may be capable of constituting a legitimate
objective for the purposes of international human rights law in respect of the
measure. While incapacitation through imprisonment could be capable of
addressing this objective, no specific information was provided in the
statement of compatibility about whether the measure will be rationally
connected to this objective. It is possible that a mandatory minimum sentence
may be unconnected to the specific risk posed by a particular offender and,
therefore, it is not evident that a mandatory minimum is effective to achieve
community protection.
1.14
Further, the statement of compatibility does not provide any specific
information about the scope of the problem or why judicial discretion is
insufficient to address these objectives. In particular, there is no analysis
as to why the exercise of judicial discretion, by judges who have experience in
sentencing, has been or is likely to be inappropriate or ineffective in
achieving the objective of reflecting gravity of offences and ensuring
community protection. This raises concerns that the measure may not be
necessary to address such objectives (that is, it may not be the least rights
restrictive way of achieving its stated objectives).
1.15
In relation to the proportionality of the measure, the statement of
compatibility states that mandatory sentencing is restricted to serious child
sex offenders for a first offence and will only apply to less serious offences
following a previous conviction.[11]
This may be a relevant factor in relation to the proportionality of the measure.
However, regardless of the type of offence, there may be considerable risk that
mandatory sentencing could lead to unduly harsh sentencing in cases in which a
court is unable to take into account the full circumstances of the offence and
the offender. The committee has previously raised concerns in relation to
mandatory sentencing on a number of occasions and has addressed this issue in
its Guidance Note 2.[12]
1.16
The statement of compatibility argues that the measure maintains some of
the court's discretion as to sentencing:
...because they only relate to the length of the head
sentence, not the term of actual imprisonment that an offender will serve.
Courts will retain discretion as to any term of actual imprisonment, and will
retain access to sentencing alternatives that may be appropriate, for example
where an offender has an intellectual disability that makes imprisonment
inappropriate.[13]
1.17
However, in relation to the discretion as to setting the minimum
non-parole period, there is a concern that the mandatory minimum sentence may
be seen by courts as a 'sentencing guidepost', which is to say the appropriate
sentence for the least serious case, and accordingly may feel constrained to
impose a non‑parole period that is in the usual proportion to the head
sentence. This is generally two-thirds of the head sentence (or maximum period
of the sentence to be served).
1.18
The statement of compatibility further explains that mandatory
sentencing will not apply to offenders who are under 18 years of age. This is a
relevant safeguard in relation to the operation of the measure, however,
concerns remain in relation to its application to adult offenders set out
above.
Committee comment
1.19
The preceding analysis indicates that there are questions as to
the compatibility of the measure with the right not to be arbitrarily detained.
1.20
The committee therefore seeks the advice of the minister as to:
-
how the measure is effective to achieve (that is, rationally
connected to) its stated objective;
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective, including:
-
why the exercise of judicial discretion, by judges who have
experience in sentencing, is inappropriate or ineffective in achieving the
stated objective;
-
whether less rights restrictive alternatives are reasonably
available;
-
the existence of adequate and effective safeguards to ensure a
person is not deprived of liberty where it is not reasonable, necessary and
proportionate in all the circumstances;
-
the scope of judicial discretion maintained by the measures;
and
-
if mandatory minimum sentencing is maintained, whether the
bill could be amended to clarify to the courts that the mandatory minimum
sentence is not intended to be used as a 'sentencing guidepost' and that there
may be a significant difference between the non-parole period and the head
sentence.
Right to have a sentence reviewed
by a higher tribunal
1.21
Mandatory sentencing is also likely to engage and limit article 14(5) of
the ICCPR, which protects the right to have a sentence reviewed by a higher
tribunal. This is because mandatory sentencing may prevent review of the
severity or appropriateness of a minimum sentence. In this respect, when a
trial judge imposes the prescribed mandatory minimum sentence, the appellate
court is likely to form the view that there are limited matters in the
sentencing processes to review. This is because the trial judge has imposed the
mandatory minimum sentence. This was not addressed in the statement of
compatibility.
Committee comment
1.22
The preceding analysis raises questions about the compatibility
of the measure with the right to have a sentence reviewed by a higher court.
1.23
The committee therefore requests the advice of the minister as to
the compatibility of the measure with the right to have a sentence reviewed by
a higher court.
Conditional release of offenders after conviction
1.24
Currently, section 20(1)(b) of the Crimes Act 1914 provides that,
following conviction for an offence, the court may sentence a person to
imprisonment but direct that the person be released upon giving certain forms
of security such as being of good behaviour, paying compensation or paying the
commonwealth a pecuniary penalty or other conditions. This is sometimes
referred to as a suspended sentence or recognisance order. Schedule 11 of the
bill removes this sentencing option for child sex offenders unless there are
exceptional circumstances. That is, it will mean that child sex offenders are
required to serve a period of imprisonment that is not suspended.[14]
Compatibility of the measure with
the right not to be arbitrarily detained
1.25
As noted above, the right to liberty includes the right not to be
arbitrarily detained. By restricting sentencing options available to a court
and requiring offenders to serve a sentence of imprisonment the measure engages
the right not to be arbitrarily detained. The statement of compatibility states
that:
The presumption in favour of a term of actual imprisonment
is... reasonable and necessary to achieve the legitimate objective of ensuring
that the courts are handing down sentences for child sex offenders that reflect
the gravity of these offences, and to ensure that the community is protected
from child sex offenders.[15]
1.26
As noted above, ensuring community protection may be capable of
constituting a legitimate objective for the purposes of international human
rights law. While incapacitation through imprisonment could be capable of
addressing this objective, no specific information was provided in the
statement of compatibility about whether the measure will be rationally connected
to this objective. It is possible that a mandatory minimum sentence may be
unconnected to the specific risk posed by a particular offender and, therefore,
it is not evident that a mandatory minimum is effective to achieve community
protection.
1.27
The statement of compatibility argues that the measure is proportionate
on the basis that it will only apply to child sex offenders who might otherwise
be released on recognisance orders.[16]
However, this does not explain why the exercise of judicial discretion as to
sentencing is insufficient to achieve the stated objective of the measure. It
also does not address whether the unavailability of recognisance orders could
lead to injustice in a particular case such that a term of imprisonment is
applied in circumstances where it amounts to arbitrary detention.
1.28
In relation to the proportionality of the measure, the statement of
compatibility further notes that the court retains discretion as to how long
the term of imprisonment should be.[17]
While this is the case, incarceration and loss of liberty for any length of
time is a serious matter and the presumption in favour of a term of actual
imprisonment may seriously alter a court's exercise of this discretion. In
order for a loss of liberty not to be arbitrary it must generally be
reasonable, necessary and proportionate in all the circumstances. By
restricting the court's discretion in this respect there is a serious risk that
such a deprivation of liberty may not be necessary in all the circumstances of
each individual case.
1.29
The court will retain discretion to make a recognisance order in
'exceptional circumstances'. The statement of compatibility does not explain
what types of circumstances are anticipated to engage this discretion, and
whether this will operate as an effective safeguard in relation to the
measure.
Committee comment
1.30
The preceding analysis indicates that there are questions as to
the compatibility of the measure with the right not to be arbitrarily detained.
1.31
The committee seeks the advice of the minister as to:
-
how the measure is effective to achieve (that is, rationally
connected to) its stated objective; and
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective, including:
-
why the exercise of judicial discretion, by judges who have
experience in sentencing, is inappropriate or ineffective in achieving the
stated objective;
-
whether less rights restrictive alternatives are reasonably
available;
-
the existence of adequate and effective safeguards to ensure a
person is not deprived of liberty where it is not reasonable, necessary and
proportionate in all the circumstances;
-
what is anticipated to constitute 'exceptional circumstances'
for the purpose of making a recognisance order; and
-
the scope of judicial discretion maintained by the measure.
Presumption against bail
1.32
Schedule 7 of the bill would introduce a presumption against bail for
persons charged with, or convicted of, certain Commonwealth child sex offences.
Proposed section 15AAA of the Crimes Act 1914 provides that a bail
authority must not grant bail unless satisfied by the person that circumstances
exist to grant bail.
1.33
The presumption against bail applies to persons charged with, or
convicted of, serious child sex offences to which mandatory minimum penalties
apply. It also applies to all offences subject to a mandatory minimum penalty
on a second or subsequent offence where the person has been previously
convicted of child sexual abuse.[18]
Compatibility of the measure with
the right to release pending trial
1.34
The right to liberty includes the right to release pending trial.
Article 9(3) of the ICCPR provides that the 'general rule' for people awaiting
trial is that they should not be detained in custody. The UN Human Rights
Committee has stated on a number of occasions that pre-trial detention should
remain the exception and that bail should be granted except in circumstances
where the likelihood exists that, for example, the accused would abscond,
tamper with evidence, influence witnesses or flee from the jurisdiction.[19]
As the measure creates a presumption against bail it engages and limits this
right.[20]
1.35
The statement of compatibility argues generally that the measure pursues
the objective of 'community protection from Commonwealth child sex offenders
whilst they are awaiting trial or sentencing',[21]
but does not provide any specific information as to how this measure addresses
a pressing and substantial concern as is required in order to constitute a
legitimate objective for the purposes of international human rights law. In a
broad sense, incapacitation through imprisonment could be capable of addressing
community protection, however, no specific information was provided in the
statement of compatibility about whether the measure will be rationally
connected to (that is, effective to achieve) the stated objective. In
particular, it would be relevant whether the offences to which the presumption
applies create particular risks while a person is on bail.
1.36
The presumption against bail applies not only to those convicted of
child sex offences, but also those who are accused and in respect of which
there has been no determination of guilt. That is, while the objective
identified in the statement of compatibility refers to 'community protection
from child sex offenders' it applies more broadly to those that are accused of
particular offences.
1.37
The statement of compatibility reasons that given the nature of online
exploitation 'it is particularly important to ensure that any risk is mitigated
through appropriate conditions. Where conditions cannot mitigate the risk to
the community, witnesses, and victims, bail should not be granted'.[22]
However, the presumption against bail goes further than requiring that bail
authorities and courts consider particular criteria, risks or conditions in
deciding whether to grant bail. It is not evident from the information provided
that the balancing exercise that bail authorities and courts usually undertake
in determining whether to grant bail would be insufficient to address the
stated objective of 'community protection' or that courts are failing to
consider the serious nature of an offence in determining whether to grant bail.[23]
1.38
Further, to the extent that the concern is that issues of community risk
are not being given sufficient weight in bail applications, it is unclear why
this could not be addressed through adjusting the criteria to be considered in
granting bail rather than imposing a presumption against bail. This raises a
specific concern that the measure may not be the least rights restrictive
alternative reasonably available, as required to be a proportionate limit on
human rights.
1.39
In relation to the proportionality of the measure, the statement of
compatibility further states that the measure provides courts with a 'starting
point of a presumption against bail' but that the presumption is rebuttable.[24]
However, the bill does not specify the threshold for rebutting this presumption
including what constitutes 'exceptional circumstances' to justify bail.
1.40
While bail may continue to be available in some circumstances, based on
the information provided, it is unclear that the presumption against bail is a
proportionate limitation on the right to release pending trial.[25]
Relevantly, in the context of the Human Rights Act 2004 (ACT) (ACT HRA),
the ACT Supreme Court considered whether a presumption against bail under
section 9C of the Bail Act 1992 (ACT) (ACT Bail Act) was incompatible
with section 18(5) of the ACT HRA. Section 18(5) of the ACT HRA relevantly
provides that a person awaiting trial is not to be detained in custody as a
general rule. However, section 9C of the ACT Bail Act contains a presumption
against bail in respect of particular offences and requires those accused of
murder, certain drug offences and ancillary offences, to show 'exceptional
circumstances' before the usual assessment as to whether bail should be granted
is undertaken. In the matter of an application for Bail
by Isa Islam [2010] ACTSC 147, the ACT Supreme Court considered these
provisions and decided that section 9C of the ACT Bail Act was not consistent
with the requirement in section 18(5) of the ACT HRA that a person awaiting
trial not be detained in custody as a general rule.
Committee comment
1.41
The preceding analysis indicates that there are questions as to
the compatibility of the measure with the right to release pending trial.
1.42
The committee seeks 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;
-
how the measure is effective to achieve (that is, rationally
connected to) its stated objective (including whether offences to which the
presumption applies create particular risks while a person is on bail);
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective including:
-
why the current balancing exercise undertaken by bail
authorities and courts is insufficient to address the stated objective of the
measure;
-
whether less rights restrictive alternatives are reasonably
available (such as adjusting criteria to be applied in determining whether to
grant bail rather than a presumption against bail);
-
the existence of adequate and effective safeguards to ensure a
person is not deprived of liberty where it is not reasonable, necessary and
proportionate in all the circumstances; and
-
advice as to the threshold for rebuttal of the presumption
against bail including what is likely to constitute 'exceptional circumstances'
to justify bail.
Power to restriction on information provided to offenders
1.43
Usually, in the course of making parole decisions, information adverse
to an individual is put to that person for comment prior to making a decision.
Schedule 13 of the bill would provide that information does not need to be
disclosed to an offender where in the opinion of the Attorney-General this
information is likely to prejudice national security.[26]
Compatibility of the measure with
the right to a fair hearing
1.44
The right to a fair trial and fair hearing is protected by article 14 of
the ICCPR and applies to both criminal and civil proceedings, including where
rights and obligations are determined. Withholding information from a person
which may be relevant to a decision to refuse that person parole engages and
limits the right to a fair hearing. This is particularly because they will not
be afforded the opportunity to respond to all adverse information in relation
to them.
1.45
The statement of compatibility acknowledges that the right to a fair
hearing is engaged but states that 'it is necessary to protect confidential
information, such as intelligence information, that would prejudice national
security'.[27]
It is acknowledged that this is likely in broad terms to constitute a
legitimate objective for the purposes of international human rights law.
1.46
In relation to the proportionality of the measure, the statement of
compatibility states that the measure is reasonable and proportionate because
'it applies only if the Attorney-General is satisfied that disclosure of the
information would be likely to prejudice national security'.[28]
However, it is unclear from the information provided that this necessarily
ensures that the limitation is proportionate or rationally connected to its
stated objective. It is noted that the assessment that information should not
be disclosed is based merely on the Attorney-General's 'opinion' rather than
objective criteria regarding risks to national security. There is also an
absence of any standard against which the need for confidentiality of
information is independently assessed or reviewed. There is also no assessment
provided in the statement of compatibility as to whether less rights
restrictive alternatives would be reasonably available (such as provision of
information to a person's lawyer). The committee has previously raised concerns
about measures that withhold information related to a decision from the person
affected by a decision.[29]
1.47
It is further noted that the withholding of information from offenders
in these circumstances may also have consequential impacts on other rights,
such as the right to liberty.
Committee comment
1.48
The preceding analysis indicates that there are questions as to
the compatibility of the measure with the right to a fair hearing.
1.49
The committee seeks the advice of the minister as to:
-
how the measure is effective to achieve (that is, rationally
connected to) its stated objective;
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective including:
-
the inability of affected individuals to contest or correct
information on which the refusal of parole is based;
-
the absence of any standard against which the need for
confidentiality of information is independently assessed or reviewed;
-
whether a decision to withhold information on the basis that
it prejudices national security could be based on objective criteria; and
-
whether there are less rights restrictive approaches which are
reasonably available.
Reverse burden offence
1.50
Items 16, 18, 37 and 39 of Schedule 4 propose to introduce new defences
or add to existing defences in relation to two new offences being introduced by
this bill. The changes would make it a defence for a defendant to a prosecution
for certain child sex abuse offences if the defendant proves that at the
relevant time the defendant believed that the child was at least 16 years of
age or that another person was under 18. Pursuant to section 13.4 of the
Criminal Code, the measure would thereby impose a legal burden of proof on the
defendant, such that the defendant would need to prove, on the balance of
probabilities, their belief at the relevant time.
Compatibility of the measure with
the right to be presumed innocent
1.51
Article 14(2) of the ICCPR protects the right to be presumed innocent
until proven guilty according to law. The right to be presumed innocent usually
requires that the prosecution prove each element of the offence beyond
reasonable doubt.
1.52
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. This is because a defendant's failure to discharge the burden of
proof may permit their conviction despite reasonable doubt as to their guilt.
Where a statutory exception, defence or excuse to an offence is provided in
legislation, these defences or exceptions may effectively reverse the burden of
proof and must be considered as part of a contextual and substantive assessment
of potential limitations on the right to be presumed innocent in the context of
an offence provision.
1.53
Reverse burden offences will not necessarily be inconsistent with the
presumption of innocence provided that they are within reasonable limits which
take into account the importance of the objective being sought and maintain the
defendant's right to a defence. In other words, such provisions must pursue a
legitimate objective, be rationally connected to that objective and be a
proportionate means of achieving that objective. The committee's Guidance
Note 2 sets out some of the key human rights compatibility issues in
relation to reverse burden offences. The statement of compatibility has not
addressed whether the reverse burden offences in this case are a permissible
limit on the right to be presumed innocent. It is noted in particular that it
is proposed to impose a legal burden of proof, on the defendant. The imposition
of an evidential burden of proof would appear to be an available less-rights
restrictive alternative.
Committee comment
1.54
Noting that reverse burden offences engage and limit the right to
be presumed innocent, the preceding legal analysis raises questions about
whether the reverse burden offence is a permissible limitation on this right.
1.55
The committee therefore requests the advice of the minister 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; and
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective.
Electoral and Referendum Amendment (ASADA) Regulations 2017 [F2017L00967]
Purpose |
Seeks to amend the Electoral
Referendum Regulation 2016 to include the Australian Sports
Anti-Doping Authority (ASADA) on the list of prescribed authorities for the
purposes of the Commonwealth Electoral Act 1918, so as to allow the
electoral commission to give ASADA commonwealth electoral roll information |
Portfolio |
Finance |
Authorising legislation |
Commonwealth Electoral Act
1918 |
Last day to disallow |
15 sitting days after
tabling (tabled in the House of Representatives and the Senate, 8 August
2017) |
Right |
Privacy (see Appendix 2) |
Status |
Seeking additional
information |
Providing electoral roll information to ASADA
1.56
The Electoral and Referendum Amendment (ASADA) Regulations 2017 (the
ASADA regulations) amend the Electoral and Referendum Regulation 2016 (the
electoral and referendum regulation) to include the Australian Sports
Anti-Doping Authority (ASADA) on the list of prescribed authorities for the
purposes of the Commonwealth Electoral Act 1918. The effect of the
amendment is that the Commonwealth Electoral Commission may give ASADA commonwealth
electoral roll information for the purpose of the administration of the
National Anti-Doping Scheme within the meaning of the Australian Sports
Anti-Doping Authority Act 2006 (the ASADA Act).[30]
Compatibility of the measure with
the right to privacy
1.57
The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information,
particularly the storing, use and sharing of such information; and the right to
control the dissemination of information about one's private life.
1.58
The amendments engage and limit the right to privacy by providing for
the disclosure of elector's information (which includes personal information
such as a person's name and address) from the commonwealth electoral roll to ASADA.
1.59
The right to privacy may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, the measure must pursue a legitimate objective and be rationally
connected and proportionate to achieving that objective.
1.60
The statement of compatibility acknowledges that the right to privacy is
engaged, but explains the measure is a permissible limitation as it is
reasonable, necessary and sufficiently precise to ensure that it addresses only
those matters it is intended to capture under the ASADA Act.
1.61
The statement of compatibility explains the objective of the measure as
being 'necessary in the interests of public safety and for the protection of
public health'.[31]
The statement of compatibility further explains that the measure will assist
the work of ASADA in investigating violations under the National Anti-Doping
scheme. While generally these matters are capable of constituting legitimate
objectives for the purposes of international human rights law, the statement of
compatibility provides no information about the importance of these objectives
in the specific context of the measure. In order to show that the measure
constitutes a legitimate objective for the purposes of international human rights
law, a reasoned and evidence-based explanation of why the measure addresses a
substantial and pressing concern is required. The statement of compatibility
also does not provide any information as to how the measure is rationally
connected to (that is, effective to achieve) the objectives.
1.62
As to the proportionality of the measure, limitations on the right to
privacy must be no more extensive than what is strictly necessary to achieve
the legitimate objective of the measure. The statement of compatibility
explains that having access to the electoral roll will 'assist the work of
ASADA in investigating violations under the National Anti-Doping scheme'.[32]
The statement of compatibility continues:
Providing access to the Commonwealth electoral Roll to ASADA
for the purpose of administering the National Anti-Doping scheme, it would be
particularly beneficial:
-
for identifying persons who are subject to tip-offs;
-
for locating athletes for testing purposes;
-
for establishing additional information to facilitate additional
records checks;
-
for establishing the identity of co-habitants and associations of
interest;
-
for linking seizures of Performance and Imaging Enhancing Drugs
to the occupants of the intended destination addresses; and
-
for maintaining the confidentiality of ASADA enquiries.
1.63
The statement of compatibility does not provide further information as
to whether these reasons for accessing information on the electoral roll are
the least rights restrictive means of achieving the stated objectives. For
example, based on the information provided it is unclear whether 'establishing
the identity of co‑habitants and associations of interest' is strictly
necessary to achieve the stated objectives of public safety and protection of
public health.
1.64
Further, whilst these reasons for access are specifically identified in
the statement of compatibility, the amendment itself is drafted more broadly,
stating that information can be accessed for 'the administration of the
National Anti-Doping Scheme (within the meaning of the Australian Sports
Anti-Doping Authority Act 2006)'.[33]
1.65
'Administration' appears to be broad in scope, particularly in contrast
to the purposes identified for access to the electoral roll for other
prescribed authorities. For example, the identified purposes for access
to the electoral roll for the Australian Federal Police is detailed in Clause 7
of Schedule 1 to the electoral and amendment regulation, and is more
prescriptive, as follows:
-
identifying or locating offenders, suspects or witnesses; or
-
deciding whether suspects can be eliminated from an investigation; or
-
target development; or
- intelligence checks; or
-
protecting the safety of officers, staff members, AFP employees and
special members; or
-
law enforcement; or
-
surveillance; or
-
identification or potential or actual disaster victims, and notification
of victims' families; or
-
security vetting of AFP officers or potential AFP officers.
1.66
The broad wording of the amendment raises questions as to whether the
measure as currently drafted is sufficiently circumscribed and therefore
whether it imposes a proportionate limitation on the right to privacy in the
pursuit of the stated objective.
1.67
Another relevant factor in assessing the proportionality of a measure is
whether there are adequate safeguards in place to protect the right to privacy.
In this respect the statement of compatibility states:
The disclosure of such information is protected in the first
instance by the discretion of the Electoral Commission who can decide when and
how to give this information, to the prescribed authority.[34]
1.68
No further information is provided in the statement of compatibility as
to the scope of the discretion of the Electoral Commission, including any
relevant safeguards. In any event, while the existence of a discretion is a
relevant factor, it often is not, by itself, an effective human rights
safeguard. No other information is provided about whether there are adequate
and effective safeguards in place to protect against unintended use of
information or on-disclosure to third parties.
Committee comment
1.69
The preceding analysis raises questions as to whether the measure
constitutes a permissible limitation on the right to privacy.
1.70
The committee therefore seeks 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 international 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
for the achievement of the stated objective (including whether the measure is
sufficiently circumscribed and whether there are adequate and effective
safeguards with respect to the right to privacy).
Migration Amendment (Prohibiting Items in Immigration Detention Facilities)
Bill 2017
Purpose |
Seeks to enable the
Minister for Immigration and Border Protection to prohibit certain items in
immigration detention facilities. The
bill also amends the search and seizure powers in immigration detention,
including the use of strip searches to identify and seize prohibited items |
Portfolio |
Immigration and Border
Protection |
Introduced |
House of Representatives,
13 September 2017 |
Rights |
Privacy; family; freedom of
expression; cruel, inhuman and degrading treatment; humane treatment in
detention, children's rights (see Appendix 2) |
Status |
Seeking additional
information |
Prohibiting items in relation to persons in immigration detention and the
immigration detention facilities
1.71
The Migration Amendment (Prohibiting Items in Immigration Detention
Facilities) Bill 2017 (the bill) seeks to amend the Migration Act 1958 (the
Migration Act) to regulate the possession of certain items in immigration detention
facilities. Proposed section 251A(2) enables the minister to determine, by
legislative instrument, whether an item is a 'prohibited thing'[35]
if the minister is satisfied that:
- possession of the thing is prohibited by law in a place
or places in Australia; or
- possession or use of the thing in an immigration
detention facility might be a risk to the health, safety or security of persons
in the facility, or to the order of the facility.
1.72
The bill includes a note which states that examples of things that might
be considered to pose a risk for the purposes of section 251(2)(b) are mobile
phones, SIM cards, computers and other electronic devices such as tablets,
medications or health care supplements in specific circumstances, or
publications or other material that could incite violence, racism or hatred.
Compatibility of the measure with
the right to privacy
1.73
Article 17 of the International Covenant on Civil and Political Rights
(ICCPR) prohibits arbitrary and unlawful interferences with an individual's
privacy, family, correspondence or home. This includes a requirement that the
state does not arbitrarily interfere with a person's private and home life.
1.74
A private life is linked to notions of personal autonomy and human
dignity. It includes the idea that individuals should have an area of
autonomous development; a 'private sphere' free from government intervention
and excessive unsolicited intervention by others. Additionally, for persons in
detention, the degree of restriction on a person's right to privacy must be
consistent with the standard of humane treatment of detained persons under
Article 10(1) of the ICCPR.[36]
Article 10 provides extra protection for persons in detention who are
particularly vulnerable as they have been deprived of their liberty, and
imposes a positive duty on states to provide detainees with a minimum of
services to satisfy basic needs, including means of communication and privacy.[37]
Persons in detention have the right to correspond under necessary supervision
with families and reputable friends on a regular basis.[38]
For immigration detention, supervision of detainees' correspondence must be
understood in the context that detainees are not being detained whilst serving
a term of imprisonment but rather are in administrative detention pending
removal from Australia.
1.75
The bill states that the items that will be declared as 'prohibited
things' will be set out in a legislative instrument. However, as noted earlier,
both the bill itself and the explanatory memorandum state that examples of
items that might be considered to be a 'prohibited thing' includes mobile
phones and SIM cards. Therefore, while the precise items to be prohibited
remain to be determined by legislative instrument,[39]
by setting up the mechanism in which the minister may declare certain items to
be prohibited (including mobile phones), the bill engages and limits the right
to privacy. In particular, this aspect of the bill may interfere with
detainees' private life and right to correspond with others without interference.
1.76
The right to privacy may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, they must seek to achieve a legitimate objective and be reasonable,
necessary and proportionate to achieving that objective.
1.77
The statement of compatibility does not specifically acknowledge the
engagement of the right to privacy in relation to the prohibition of items in
immigration detention. However, the statement of compatibility acknowledges
that the bill engages and limits the right to privacy in relation to the new
search and seizure powers, which includes the power to search and seize
'prohibited things'.[40]
In this respect, the statement of compatibility notes that the objective of the
bill is to 'provide for a safe and secure environment for people accommodated
at, visiting or working at an immigration detention facility'.[41]
The statement of compatibility states that the limitation on the right to
privacy is proportionate as it is 'commensurate to the risk that currently
exists in immigration detention facilities',[42]
and further states that:
These amendments are also proportionate to the serious
consequences of injury to staff and detainees, and the greater Australian
community if these risks are not properly managed. Any limitations on this
right, through the search and seizure for things which are prohibited in
immigration detention facilities, are reasonable, necessary and proportionate
and are directed at the legitimate objective of protecting the health, safety
and security of people in immigration detention and or to the order of the
facility.[43]
1.78
The risk that is said to exist in immigration detention is described by
the minister in the statement of compatibility as follows:
More than half of the detainee population consists of
high-risk individuals who do not hold a visa, pending their removal from
Australia. This includes members of outlaw motorcycle gangs and other organised
crime groups whose visas have been cancelled or refused.
The change to the demographics of the detention population is
due to the Government's successful border protection policy and the increase in
visa refusal or cancellation on character grounds resulting from implementing
the Government’s commitment to protecting the Australian community from
non-citizens of serious character concern. However, the changing nature of the
detention population has seen an increase in illegal activities in immigration
detention facilities across Australia...
Currently mobile phones are enabling criminal activity within
the immigration detention network. Activity facilitated or assisted by mobile
phone usage includes:
-
drug distribution
-
maintenance of criminal enterprises in and out of detention
facilities
-
commodity of exchange or currency
-
owners of mobile phones being subjected to intimidation tactics
(including theft of the phone)
-
threats and /or assaults between detainees including an attempted
contract killing.
In addition to the above mobile phones have been used to
coordinate disturbances and escapes.[44]
1.79
Protecting the health, safety and security of people in immigration
detention and/or to the order of the facility is likely to be a legitimate
objective for the purposes of international human rights law. Prohibiting
certain items that may enable criminal activity within the immigration
detention network also appears to be rationally connected to that objective.
1.80
To be a proportionate limitation on the right to privacy, the limitation
should only be as extensive as is strictly necessary to achieve its legitimate
objective and must be accompanied by appropriate safeguards. There are
questions as to whether the limitation on the right to privacy that arises from
the bill is proportionate to the stated objective.
1.81
First, prohibiting items in immigration detention for all
detainees in immigration detention appears to be broader than necessary to
address the stated objective. The minister's explanatory memorandum notes that
immigration detention facilities accommodate a number of higher risk detainees
who have entered immigration detention directly from a correctional facility,
including child sex offenders and members of outlaw motorcycle gangs.[45]
However, the bill applies to all detainees regardless of whether or not they
pose a risk. This appears to include, for example, persons detained while
awaiting determination of refugee status who may not pose any risk of the kind
described in the statement of compatibility yet may have items that allow them
to communicate with family and friends, such as mobile phones, prohibited. It
is also noted that the requisite threshold for whether an item constitutes a
risk is low, as the minister need only be satisfied that an item might
pose a risk before making that item prohibited for all detainees. These matters
raise serious concerns that the measure is overbroad and may not be the least
rights restrictive way to achieve the stated objective for the purposes of
international human rights law.
1.82
Further, another relevant consideration in determining the proportionality
of a measure is whether there are adequate safeguards or controls over the
measures. In particular, laws that interfere with the right to privacy must
specify in detail the precise circumstances in which such interferences may be
permitted.[46]
As noted earlier, proposed section 251A(2) provides that the minister may
determine a thing be prohibited if she or he is 'satisfied' that (relevantly)
possession or use of the thing in an immigration detention facility might be a
risk to the health, safety or security of persons in the facility, or to the
order of the facility. No information is provided in the statement of
compatibility as to how, and under what circumstances, the minister may be
'satisfied' that an item may pose a risk. For example, it is not clear whether
the minister's state of satisfaction is subject to any objective criteria, such
as that of reasonable satisfaction, or that the risk is common to all detainees
such that prohibition of the item is warranted in all cases.
Committee comment
1.83
The preceding analysis raises questions whether the
prohibition of certain items, including mobile phones, from immigration
detention facilities, is compatible with the right to privacy.
1.84
The committee seeks the advice of the minister as to whether the
measure is a proportionate limitation on the right to privacy, in particular:
-
whether the measure is sufficiently circumscribed and the least
rights restrictive way to achieve the stated objective for the purposes of
international human rights law; and
-
whether the measure is accompanied by adequate safeguards to
protect against arbitrary application (including whether the minister's state
of satisfaction when determining whether an item is to be prohibited must be
'reasonable' or that the risk arises in relation to all detainees).
Compatibility of the measure with
the right not to be subjected to arbitrary or unlawful interference with family
1.85
The right to respect for the family is protected by articles 17 and 23
of the ICCPR and article 10 of the International Covenant on Economic, Social
and Cultural Rights (ICESCR). An important element of protection of the family,
discussed above in relation to the right to privacy, includes the right to
correspond with families when in detention. By providing that the minister will
specify by legislative instrument that mobile phones and SIM cards will be
'prohibited things', the measure engages and limits the right to respect for
the family. The statement of compatibility acknowledges that the right to
respect for the family is engaged and limited by the bill. However, the
statement of compatibility states that the measures 'do not represent an
interference with family' on the following bases:
The Department acknowledges that regular contact with family
and friends supports detainee resilience and mental health and is committed to
ensuring detainees have reasonable access to means of maintaining contact with
their support networks. This contact will continue to be facilitated through
the availability of landline telephones, internet access, access to facsimile
machines and postal services. Additionally, immigration detention facilities
will continue to facilitate visits by detainees' family members and other
visitors.
The Department has, and continues to, review the availability
of telephone, internet and facsimile facilities for use by detainees across the
immigration detention network, to ensure these facilities are adequate to
contact and be contacted by family, friends and legal representatives. As a
result of reviews, additional landline telephones have been installed at most
immigration detention facilities. This has meant that detainees have even
greater and more readily available access to means of communication with their
families.
The amendments do not represent an interference with family,
given detainees have other readily available communication channels at their
disposal to communicate with their families.[47]
1.86
However, it is noted that a mobile telephone, for example, may be an
important mechanism for detainees and families to maintain regular and ongoing
contact with each other. In this context, prohibiting this item would appear to
limit the right to respect for the family.
1.87
As noted earlier, the stated objective of the measure (protecting the
health, safety and security of people in immigration detention and/or to the
order of the facility) is likely to be a legitimate objective for the purposes
of international human rights law and the measure appears to be rationally
connected to that objective. However, there are questions as to whether the
measure is a proportionate interference with the right to respect for the
family.
1.88
In particular, while the minister states in the statement of
compatibility that detainees have other available communication channels at
their disposal to communicate with their families, the extent of that access is
not clear from the information provided. For example, whereas the use of a
mobile telephone could occur at any time of day and in a private setting (such
as in a detainee's room), it is not clear that the availability of landline
telephones, internet access, access to facsimile machines and postal services
would provide a similar degree of privacy. In particular, no information is
provided as to the ease, frequency and cost of access to landline telephones
and the internet (and any restrictions upon that access), and the extent of
supervision when accessing those facilities (including whether detainees can
speak with family members in a private room or in a more public area). This
raises questions as to whether the measure is the least rights restrictive way
to achieve the stated objective for the purposes of international human rights
law.
Committee comment
1.89
The prohibition of certain items, including mobile phones, from
immigration detention facilities, engages and limits the right not to be
subjected to arbitrary or unlawful interference with family.
1.90
The committee seeks the advice of the minister as to whether the measure
is a proportionate limitation on this right, in particular whether the measure
is the least rights restrictive way to achieve the stated objective.
Information regarding the extent of access to landline telephones, internet
access, access to facsimile machines and postal services (including any
restrictions on access, and the privacy afforded to detainees when accessing)
will assist in determining the proportionality of the measure.
Compatibility of the measure with
the right to freedom of expression
1.91
The right to freedom of expression is protected by article 19 of the
ICCPR. The right to freedom of expression includes the freedom to seek,
receive, and impart information and ideas of all kinds, either orally, in
writing or in print or through any other media of a person's choice.[48]
By restricting access to 'prohibited things' including mobile phones and SIM
cards, the bill engages and limits the freedom of expression insofar as it
limits the ability of detainees to seek, receive and impart information.
1.92
The minister acknowledges in the statement of compatibility that the
freedom of expression is engaged by the bill. However, the minister considers
that the freedom of expression is not limited on the following bases:
Although mobile phones and SIM cards will be specified as
‘prohibited things’, a number of alternative communication avenues will remain
available to detainees. These include landline telephones, access to the
internet, access to facsimile machines and postal facilities. The Department
has, and continues to, review the availability of these communication
facilities for use by detainees across the immigration detention network to
ensure these facilities are adequate to contact and be contacted by family,
friends and legal representatives. As a result of reviews, additional landline
telephones have been installed at most immigration detention facilities.
Detainees therefore have even greater access to means of communication.
Additionally, immigration detention facilities will continue to facilitate
visits by detainees’ family members and other visitors.
The amendments do not limit the right to freedom of
expression, given the various other avenues of communication that are readily
available to detainees.[49]
1.93
Under article 19(3) of the ICCPR, freedom of expression may be subject
to limitations that are necessary to protect the rights or reputations of
others, national security, public order, or public health or morals.
Limitations must be prescribed by law, pursue a legitimate objective, be
rationally connected to the achievement of and proportionate to that objective.[50]
1.94
As noted earlier, the stated objective of the measure includes the
preservation of health, safety and security within immigration detention
facilities, which appears to fall within the permissible limitations on the
freedom of expression in Article 19(3).
1.95
In determining whether limitations on the freedom of expression are
proportionate, the UN Human Rights Committee has previously noted that
restrictions on the freedom of expression must not be overly broad.[51]
In particular, the UN Human Rights Committee has observed:
When a State party invokes a legitimate ground for
restriction of freedom of expression, it must demonstrate in specific and
individualized fashion the precise nature of the threat, and the necessity and
proportionality of the specific action taken, in particular by establishing a
direct and immediate connection between the expression and the threat.[52]
1.96
As noted above in relation to the right to privacy, the restrictions on
certain items in immigration detention appears to apply to all detainees
regardless of whether or not those detainees pose a risk. While some
alternative means of communication may be available (in some detention
centres), it does not appear that these will be equivalent to current
mechanisms. For example, mobile telephones have a range of functions such as
taking photos and video that may be used to exercise freedom of expression
including in relation to conditions of detention. Access to a mobile telephone
may also allow detainees more ready access to legal advice or other support
persons than alternative means of communication. This raises questions as to
whether the measure is sufficiently circumscribed and the least rights
restrictive way to achieve the stated objective for the purposes of
international human rights law.
Committee comment
1.97
The right to freedom of expression is engaged and limited by the
bill.
1.98
The committee seeks the advice of the minister as to whether the
measure is a proportionate limitation on the freedom of expression, in
particular whether the measure is sufficiently circumscribed and the least
rights restrictive way to achieve the stated objective.
Amended search and seizure powers in relation to prohibited things in
relation to detainees and detention facilities
1.99
At present, searches on detainees may only be undertaken for limited
purposes. For example, at present a strip search may only be conducted to find
out whether a detainee has a weapon or other thing capable of being used to
inflict bodily injury or to help a detainee escape.[53]
1.100
The bill seeks to strengthen the search and seizure powers in the
Migration Act to allow for searches for a 'prohibited thing'. This includes
the ability to search a person, the person's clothing and any property under
the immediate control of the person for a 'prohibited thing',[54]
the ability to take and retain possession of a 'prohibited thing' if found
pursuant to search,[55]
the ability to use screening equipment or detector dogs to screen a detainee's
person or possessions to search for a 'prohibited thing',[56]
and the ability to conduct strip searches to search for a 'prohibited thing'.[57]
There is also an amendment to the powers to search and screen persons entering
the immigration detention facility (such as visitors), including a power to
request persons visiting centres to remove outer clothing (such as a coat) if
an officer suspects a person has a prohibited thing in his or her possession,
and to leave the prohibited thing in a place specified by the officer while
visiting the immigration detention facility.[58]
1.101
A further search power introduced by the bill is the power for an
authorised officer to, without warrant, conduct a search of an immigration
detention facility including accommodation areas, common areas, detainees'
personal effects, detainees' rooms, and storage areas.[59]
In conducting such a search, an authorised officer who conducts a search 'must
not use force against a person or property, or subject a person to greater
indignity, than is reasonably necessary in order to conduct the search'.[60]
Compatibility of the measures with
the right to freedom from torture, cruel, inhuman and degrading treatment or
punishment and rights to humane treatment
1.102
Article 7 of the ICCPR provides that no person shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment.[61]
This right is an absolute right, and thus no limitations on this right are
permissible under international human rights law. The aim of article 7 is to
protect both the dignity and the physical and mental integrity of the
individual.[62]
Article 10 of the ICCPR, which guarantees a right to humane treatment in
detention, complements article 7 such that there is a positive obligation on
Australia to take actions to prevent the inhumane treatment of detained
persons.[63]
1.103
The UN Human Rights Committee has indicated that United Nations
standards applicable to the treatment of persons deprived of their liberty are
relevant to the interpretation of articles 7 and 10 of the ICCPR.[64]
In this respect, the United Nations Standard Minimum Rules for the Treatment
of Prisoners (Mandela Rules) state that intrusive searches (including strip
searches) should be undertaken only if absolutely necessary, that prison
administrations shall be encouraged to develop and use appropriate alternatives
to intrusive searches, and that intrusive searches shall be conducted in
private and by trained staff of the same sex as the prisoner.[65]
Further, the European Court of Human Rights (ECHR) has found that strip
searching of detainees may violate the prohibition on torture and cruel,
inhuman or degrading treatment or punishment where it involves an element of
suffering or humiliation going beyond what is inevitable for persons in
detention.[66]
While the Court accepted that strip-searches may be necessary on occasion to ensure prison security or to prevent disorder or
crime, the Court emphasised that prisoners must be detained in
conditions which are compatible with respect for their
human dignity.[67] While the jurisprudence of the ECHR is not binding on
Australia, the views of the Court in relation to the prohibition on torture,
cruel, inhuman or degrading treatment or punishment may be instructive in
determining the scope of Australia's human rights obligations.
1.104
The statement of compatibility does not acknowledge whether the right to
freedom from torture, cruel, inhuman and degrading treatment or punishment is
engaged. However, by providing the minister with the power to conduct strip
searches to find out whether there is a 'prohibited thing' hidden on a
detainee, it appears that this right is engaged. The right also appears to be
engaged by the power in section 252BA to use force where reasonably necessary
to conduct searches of immigration detention facilities.
1.105
The amended search and seizure powers also appear to engage the right to
humane treatment of persons in detention in article 10 of the ICCPR. In this
respect, the statement of compatibility acknowledges that the amendments to the
search and seizure powers may engage article 10. The minister emphasises a
number of current provisions and additional safeguards in place in relation to
strip searches:
Current provisions
With regard to strip searches under section 252A of the
Migration Act, authorisation must continue to be obtained from the departmental
Secretary or Australian Border Force Commissioner (or a Senior Executive
Service Band 3 level delegate) prior to a strip search being undertaken. Strip
searches will also remain subject to rules currently set out at section 252B of
the Migration Act, which include (but are not limited to):
(1) A strip
search of a detainee under section 252A:
-
must not subject the detainee to greater indignity than is
reasonably necessary to conduct the strip search;
-
must be conducted in a private area;
-
must not be conducted on a detainee who is under 10;
-
must not involve a search of the detainee's body cavities;
-
must not be conducted with greater force than is reasonably
necessary to conduct the strip search.
Additional protections
Additionally, the amendments
seek to introduce a number of provisions to protect detainees and their
property. These include section 252BA - Searches of certain immigration
detention facilities - general. This section includes sub-paragraph 252BA(6) -
an authorised officer who conducts a search under this section must not use
more force against a person or property, or subject a person to greater
indignity, than is reasonably necessary in order to conduct the
search.
The use of detector dogs will be subject to a number of
protections. For example, section 252AA(3A) provides that if an authorised
officer uses a dog in conducting a screening procedure, the officer must:
(a)
take all reasonable precautions to prevent the dog touching any person (other
than the officer); and
(b) keep
the dog under control while conducting the screening procedure.
The amendments also set out a number of provisions that seek
to return certain 'prohibited things' to detainees on their release from
detention. For example, section 252CA(2) will provide that an authorised
officer must take all reasonable steps to return a ‘prohibited thing’ seized
during a screening procedure, a strip search or a search of an immigration
detention facility to the detainee on their release from detention, if it
appears that the thing is owned or was controlled by the
detainee.
1.106
The statement of compatibility contends that the amendments are
consistent with the right under Article 10 as there are sufficient protections
provided by law to ensure that respect for detainees' inherent dignity is
maintained during the conduct of searches.[68]
1.107
The safeguards set out in the statement of compatibility and contained
in section 252A of the Migration Act indicate that there is oversight over the
conduct of strip searches. However, it is noted that the current power to
conduct strip searches is limited to circumstances where there are reasonable
grounds to suspect a detainee may have hidden in his or her clothing a weapon
or other thing capable of being used to inflict bodily injury or to help the
detainee escape from detention.[69]
The amendments will extend this power to where an officer suspects on
reasonable grounds that a person may have hidden on the person a 'prohibited
thing', including a mobile telephone. Given the broad power of the minister to
declare an item a 'prohibited thing' (discussed above), this considerably
expands the bases upon which strip searches can be conducted, which raises
questions as to whether the expanded powers to conduct strip searches are
consistent with the requirement under international human rights law that strip
searches only be conducted when absolutely necessary.
1.108
Further, in relation to the power of authorised officers to use force to
conduct searches of immigration detention facilities, while the power limits
the use of force to 'not...more force...than is reasonably necessary in order to
conduct the search', no information is provided in the statement of
compatibility as to whether there is any oversight over the exercise of that
power, such as consideration of any particular vulnerabilities of the detainee
who is subjected to the use of force, and any access to review to challenge the
use of force.
Committee comment
1.109
The preceding analysis raises questions as to whether the proposed
amendments to the search and seizure powers are compatible with the right to
freedom from torture, cruel, inhuman and degrading treatment or punishment and
right to humane treatment in detention.
1.110
In relation to the prohibition on torture, or cruel, inhuman and
degrading treatment or punishment, the committee seeks the advice of the
minister in relation to the compatibility of the measure with this right
(including the sufficiency of any relevant safeguards, whether strip searches to
seize 'prohibited items' are only conducted when absolutely necessary, and any
monitoring and oversight over the use of force by authorised officers).
1.111
In relation to the right to humane treatment in detention, the committee
seeks the advice of the minister as to:
-
the adequacy of the safeguards in relation to strip searches, in
particular whether conducting strip searches to seize 'prohibited items' are
conducted only when absolutely necessary; and
-
whether there exists any monitoring and oversight over the use of
force by authorised officers in section 252BA(6), including access to review
for detainees to challenge the use of force.
Compatibility of the measures with
the right to bodily integrity
1.112
The right to privacy extends to protecting a person's bodily integrity.
Bodily searches, and in particular strip searches, are an invasive procedure
and may violate a person's legitimate expectation of privacy. The amendments to
allow searches of persons, including strip searches, to seize prohibited items
therefore engage and limit the right to bodily integrity. The UN Human Rights
Committee has emphasised that personal and body searches must be accompanied by
effective measures to ensure that such searches are carried out in a manner
consistent with the dignity of the person who is being searched, and further
that persons subject to body searches should only be examined by persons of the
same sex.[70]
1.113
As noted above, limitations on the right to privacy and to bodily
integrity may be permissible where it is pursuant to a legitimate objective, is
rationally connected to (that is effective to achieve) that objective, and is
proportionate to achieve that objective.
1.114
As noted at [1.77] above, the statement of compatibility acknowledges
that the amended search and seizure powers engage and limit the right to
privacy, but considers that any limitation on this right is proportionate 'to
the serious consequences of injury to staff and detainees, and the greater
Australian community if these risks are not properly managed'.[71]
As noted above in relation to the right to freedom from torture, cruel, inhuman
and degrading treatment or punishment and the right to humane treatment in
detention, the statement of compatibility also identifies a number of
safeguards that are in place when conducting strip searches, quoted in full at
[1.105] above.
1.115
Limitations on the right to bodily integrity should only be as extensive
as is strictly necessary to achieve the legitimate objective (that is, the
limitation must be appropriately circumscribed). In relation to the power to
strip search to locate and seize a 'prohibited thing', no information is
provided in the statement of compatibility as to whether consideration is given
to alternative and less-intrusive methods of searching for prohibited items
prior to conducting a strip search. For example, in relation to mobile
telephones, it is unclear why it would be necessary to undertake a strip search
when alternative and less intrusive screening methods, such as a walk-through
metal detector, may adequately identify if a mobile phone is in a person's
possession. It would appear that a strip search is not necessarily a method of
last resort, as section 252A(7) provides that strip searches may be conducted
irrespective of whether a search or screening procedure is conducted under
sections 252 and 252AA (which are less intrusive). This raises concerns as to
whether this aspect of the bill is the least rights restrictive option
available.
1.116
It is also noted that while there are limitations placed on the power to
conduct strip searches (such as a requirement that an officer must suspect 'on
reasonable grounds' that a person may have items hidden on them, and it is
'necessary' to conduct a strip search to recover the item[72]),
the bases on which an officer may form a suspicion on reasonable grounds are
broad. In particular, one of the bases upon which an officer may form a
suspicion on reasonable grounds is based on 'any other information that is
available to the officer'.[73]
The statement of compatibility does not explain what 'any other information'
may entail. In light of the broad nature of the power to prohibit, search for
and seize 'prohibited things' that is introduced by the bill, and the
obligation under international human rights law that limitations on privacy are
appropriately circumscribed, there are concerns as to whether this aspect of
the bill is a proportionate limitation on the right to privacy.
Committee comment
1.117
The preceding analysis raises questions as to whether the amended search
and seizure powers are a permissible limitation on the right to bodily
integrity.
1.118
The committee seeks the advice of the minister as to whether the
limitation on the right to bodily integrity is proportionate, in particular
whether the power to conduct strip searches to locate and seize a 'prohibited
item' is the least rights restrictive measure available, and whether the power
to conduct a strip search is appropriately circumscribed.
Compatibility of the measures with
the rights of children
1.119
While the Migration Act prohibits strip searches of children under the
age of 10,[74]
children detained in immigration facilities between the ages of 10 and 18 may
be subject to the search and seizure powers, including strip searches, under
specified conditions.[75]
In this respect, a number of Australia's obligations under the Convention on
the Rights of the Child (CRC) are engaged. In particular, the amended search
and seizure powers may engage article 16 of the CRC, which provides that no
child shall be subject to arbitrary or unlawful interference with his or her
privacy. The bill may also engage article 37 of the CRC which provides
(relevantly) that children must not be subjected to torture or other cruel,
inhuman or degrading treatment or punishment,[76]
and that every child deprived of their liberty shall be treated with humanity
and respect for the inherent dignity of the human person.[77]
1.120
While the statement of compatibility discusses the right to privacy, the
right to freedom from torture, cruel, inhuman or degrading treatment and the
right to humane treatment in detention as they apply to all persons, the statement
of compatibility does not specifically acknowledge that the rights of the child
in particular are engaged or limited by the bill.
Committee comment
1.121
The preceding analysis raises questions as to whether the bill is
compatible with the rights of the child.
1.122
The committee seeks the advice of the minister as to whether the amended
search and seizure powers (in particular the power to strip search) are
compatible with the rights of the child, in particular articles 16 and 37 of
the Convention on the Rights of the Child.
Treasury Laws Amendment (Housing
Tax Integrity) Bill 2017; Foreign Acquisitions and Takeovers Fees Imposition
Amendment (Vacancy Fees) Bill 2017
Purpose |
The bills seek to introduce
a range of measures including amendments to the Foreign Acquisitions and
Takeovers Act 1975 to implement an annual vacancy charge on foreign
owners of residential real estate where the property is not occupied or genuinely
available on the rental market for at least six months in a 12 month period |
Portfolio |
Treasury |
Introduced |
House of Representatives, 7
September 2017 |
Rights |
Equality and
non-discrimination; criminal process rights (see Appendix 2) |
Status |
Seeking additional
information |
Introduction of an annual vacancy charge on foreign owners of residential
real estate
1.123
The Treasury Laws Amendment (Housing Tax Integrity) Bill 2017 (the
bill) amends the Foreign Acquisitions and Takeovers Act 1975 to implement
an annual vacancy fee payable by 'foreign persons'[78]
who own residential property where the property is not occupied or genuinely
available on the rental market for at least six months in a 12 month period.
The Foreign Acquisitions and Takeovers Fees Imposition Amendment (Vacancy Fees)
Bill 2017 amends the Foreign Acquisitions and Takeovers Fees
Imposition Act 2015 to set the level of vacancy fee payable.
Compatibility of the measure with
the right to equality and non-discrimination
1.124
The right to equality and non-discrimination provides that everyone is
entitled to enjoy their rights without discrimination of any kind, and that all
people are equal before the law and entitled without discrimination to equal
and non‑discriminatory protection of the law.
1.125
'Discrimination' under articles 2 and 26 of the International Covenant
on Civil and Political Rights (ICCPR) includes both measures that have a
discriminatory intent (direct discrimination) and measures that have a
discriminatory effect on the enjoyment of rights (indirect discrimination).[79]
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',
but which exclusively or disproportionality affects people with a particular
personal attribute.[80]
1.126
While 'residency' is not a personal attribute protected under article
26, Australia has obligations not to discriminate on grounds of nationality or
national origin. Although states enjoy some discretion in differentiating
between nationals and non-nationals, human rights are in principle to be
enjoyed by all persons, and states are under an obligation to guarantee
equality between citizens and non‑citizens in the enjoyment of human
rights to the extent recognised under international law.[81]
1.127
The statement of compatibility acknowledges that, while an Australian
citizen who is not ordinarily resident in Australia may be a 'foreign person',
the majority of individuals directly affected by the bill will not be Australian
citizens.[82]
Insofar as the operation of the scheme will introduce a fee that will primarily
affect non-citizens, Australia's obligations in relation to non-discrimination
on grounds of nationality and national origin may therefore be engaged and
limited. In particular, the measure may indirectly discriminate on these bases
insofar as the measure would have a disproportionate impact on individuals who
are not Australian citizens. Where a measure impacts on particular groups
disproportionately, it establishes prima facie that there may be
indirect discrimination.[83]
In this respect, it is noted that in 2015, the Victorian Scrutiny of Acts and
Regulations Committee referred to the Victorian Parliament for its
consideration whether a law, which imposed higher property taxes on foreign
citizens than on Australian and New Zealand citizens for the purpose of ensuring
that a larger number of local homebuyers remain competitive in the housing
market, reasonably limited the rights against discrimination on the basis of
nationality.[84]
1.128
Differential treatment (including the differential effect of a measure
that is neutral on its face) will not constitute unlawful discrimination if
that treatment is 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.[85]
1.129
The statement of compatibility acknowledges that the right to equality
and non-discrimination is engaged and limited, stating:
The Bill limits Article 26 of the ICCPR and Articles 2 and 5
of International Convention on the Elimination of All Forms of Racial
Discrimination because the core obligations imposed by the Bill only apply to a
‘foreign person’. While an Australian citizen who is not ordinarily resident in
Australia may be a ‘foreign person’ for the purposes of this Act, it is
anticipated that the majority of individuals who are directly affected by this
Bill will not be Australian citizens.[86]
1.130
The statement of compatibility identifies the objective of the measure
as follows:
This Schedule aims to create a larger stock of available
housing in Australia by creating an incentive for foreign persons who own
residential property to either occupy that property or make it available for
rent on the rental market through the creation of a vacancy fee...[87]
1.131
The explanatory memorandum further explains that the measure is part of
a number of initiatives to address housing affordability.[88]
1.132
The right to an adequate standard of living is guaranteed by article 11(1)
of the International Covenant on Economic Social and Cultural Rights (ICESCR) and
requires that the state take steps to ensure the availability, adequacy and
accessibility of food, clothing, water and housing for all people in Australia.
In this respect, the UN Special Rapporteur on adequate housing has recently
emphasised the importance of the right to adequate housing and noted that it
is a human right which is interdependent with other human rights, particularly
the right to equality and non-discrimination and the right to life.[89]
Therefore, the stated objectives of creating more available housing in
Australia and addressing housing affordability are likely to be legitimate
objectives for the purposes of international human rights law. Introducing a vacancy
fee to encourage occupying residential property or making property available on
the rental market appears to be rationally connected to these objectives.
1.133
In relation to the proportionality of the measure, the statement of
compatibility states that the limitation on the right to non-discrimination is
justified:
While the bill, if enacted, will primarily affect individuals
who are citizens of countries other than Australia, there is no less
restrictive way of achieving the objectives of the Bill. Accordingly those
limitations are reasonable, necessary and proportionate.[90]
1.134
The statement of compatibility does not address why it is necessary to
impose the vacancy fee only on foreign persons, as opposed to all persons who
may own residential property. Further, while the statement of compatibility
states that the measure is the least restrictive means of achieving the stated
objectives, there is no further information provided to support this statement,
including any information to explain the rationale for differential treatment
between foreign persons (the majority of whom will be non-nationals) and
residents. In these respects, information regarding the number of foreign
persons who leave properties vacant in contrast with Australian residents is
likely to be relevant to the proportionality analysis.
Committee comment
1.135
The measure would appear to have a disproportionate negative
effect on non-nationals, raising questions about whether this disproportionate
negative effect (which indicates prima facie indirect discrimination)
amounts to unlawful discrimination.
1.136
The committee therefore seeks the advice of the treasurer as to
whether the measure is reasonable and proportionate for the achievement of the
stated objectives (including how it is based on reasonable and objective
criteria; any evidence regarding the number of foreign persons who leave
properties vacant in contrast with Australian residents; or any other
information to explain the rationale for the differential treatment between
nationals and non-nationals; and whether there are other less rights
restrictive ways to achieve the stated objective).
Civil penalty provisions
1.137
Schedule 3 of the bill provides that a civil penalty may apply where a
foreign person fails to submit a ‘vacancy fee return’[91]
or keep the required records.[92]
The civil penalty for failing to submit a vacancy fee return and for failing to
keep required records is 250 penalty units (currently $52,500).[93]
Compatibility of the measure with
criminal process rights
1.138
Civil penalty provisions are dealt with in accordance with the rules and
procedures that apply in relation to civil matters (the burden of proof is on
the balance of probabilities).
1.139
However, civil penalty provisions engage the criminal process rights
under articles 14 and 15 of the ICCPR where the penalty is regarded as
'criminal' for the purposes of international human rights law. The term
'criminal' has an 'autonomous' meaning in human rights law. In other words, a
penalty or other sanction may be 'criminal' for the purposes of the ICCPR even
though it is described as 'civil' under Australian domestic law.
1.140
A penalty that qualifies as 'criminal' for the purposes of international
human rights law is not necessarily illegitimate, rather it means that criminal
process rights such as the right to be presumed innocent (including the
criminal standard of proof) and the right not to be tried and punished twice,
apply.[94]
The committee's Guidance Note 2 sets out some of the key human rights
compatibility issues in relation to provisions that create offences and civil
penalties.
1.141
The statement of compatibility does not discuss whether the civil
penalty provisions engage human rights and has not addressed whether they may
be classified as 'criminal' for the purposes of international human rights law.
The committee's general expectations in relation to the preparation of
statements of compatibility are set out in its Guidance Note 1.
1.142
Applying the tests set out in the committee's Guidance Note 2,
the first step in determining whether a penalty is 'criminal' is to look to its
classification under domestic law. In this instance, the penalty is classified
as 'civil' in the bill, however as stated above, this is not determinative of
its status under international human rights law.
1.143
The second step is to consider the nature and purpose of the penalty.
The penalty is likely to be considered to be criminal if the purpose of the
penalty is to punish or deter, and the penalty applies to the public in general
(rather than being restricted to people in a specific regulatory or
disciplinary context). Here, the purpose of the penalty appears to be to punish
and deter non-compliance, however the penalty applies only to those foreign
persons who fail to submit a vacancy fee return or keep the required records.
However, no information addressing the nature and purpose of the penalty is
provided in the statement of compatibility.
1.144
The third step is to consider the severity of the penalty. In this case
an individual could be exposed to a significant penalty of up to $52,500. A
penalty is likely to be considered 'criminal' where it carries a penalty of a
substantial pecuniary sanction. This must be assessed with due regard to
regulatory context, including the nature of the industry or sector being
regulated and the relative size of the pecuniary penalties being imposed.
Potential concerns arise as the severity of penalties in this particular
regulatory context is unclear due to the lack of information in the statement
of compatibility.
1.145
As described above, if the penalty is considered to be 'criminal' for
the purposes of international human rights law, the 'civil penalty' provisions
in the bill must be shown to be compatible with the criminal process guarantees
set out in articles 14 and 15 of the ICCPR. In this case the measure does not
appear to be consistent with criminal process guarantees. For example, the
application of a civil rather than a criminal standard of proof raises concerns
about the right to be presumed innocent. The right to be presumed innocent
generally requires that the prosecution prove each element of the offence to
the criminal standard of proof of beyond reasonable doubt. Accordingly, were
the civil penalty provisions to be considered 'criminal' for the purpose of
international human rights law, there would be serious questions about whether
they are compatible with criminal process rights.
Committee comment
1.146
The preceding analysis raises questions as to the compatibility of the
civil penalty with criminal process rights.
1.147
The committee draws the attention of the treasurer to its Guidance
Note 2 and seeks advice as to whether:
-
the civil penalty in the bill is 'criminal' in nature for the
purposes of international human rights law (having regard to the committee's Guidance
Note 2); and
-
if the penalty is considered 'criminal' for the purposes of
international human rights law, whether the measures could be amended to accord
with criminal process rights (including specific guarantees of the right to a
fair trial in the determination of a criminal charge such as the presumption of
innocence (article 14(2)), the right not to incriminate oneself (article
14(3)(g)), the right not to be tried and punished twice for an offence (article
14(7)) and a guarantee against retrospective criminal laws (article 15(1))).
Advice only
1.148
The committee draws the following bills and instruments to the attention
of the relevant minister or legislation proponent on an advice only basis. The
committee does not require a response to these comments.
Australian Citizenship (IMMI 17/073: Declared Terrorist Organisation—Jabhat
Al-Nusra) Declaration 2017 [F2017L01031]
Purpose |
The instrument declares
Jabhat Al-Nusra as a declared terrorist organisation for the purposes of
section 35AA of the Australian Citizenship Act 2007 |
Portfolio |
Immigration and Border
Protection |
Authorising legislation |
Australian Citizenship
Act 2007 |
Last day to disallow |
15 sitting days after
tabling (tabled in the House of Representatives 15 August 2017 and the Senate
16 August 2017) |
Rights |
Freedom of movement;
private life; protection of the family; take part in public affairs; liberty;
obligations of
non-refoulement; equality and non-discrimination; fair hearing and criminal
process rights; prohibition against retrospective criminal laws; prohibition
against double punishment; rights of children (see Appendix 2) |
Status |
Advice only |
Background
1.149
Measures providing for the automatic loss of a dual citizen's Australian
citizenship were introduced through the Australian Citizenship Amendment
(Allegiance to Australia) Bill 2015 (the bill). The bill passed both Houses of
Parliament on 3 December 2015 and received Royal Assent on 11 December
2015 and now forms part of the Australian Citizenship Act 2007 (Citizenship
Act).
1.150
The committee considered and reported on the bill in August 2015 and
March 2016.[95]
That detailed human rights assessment raised specific concerns in relation to
section 33AA of the bill (now section 33A of the Citizenship Act). Section 33A
provides that a dual Australian citizen will automatically cease to be an
Australian citizen if they engage in specified conduct with a specified intention.[96]
1.151
The previous human rights assessment of section 33A noted that measures
for the automatic loss of citizenship engage and limit a range of human rights,
including the right to freedom of movement; right to a private life; the right
to protection of the family; right to take part in public affairs; right to
liberty; obligations of non-refoulement; right to equality and
non-discrimination; right to a fair hearing and criminal process rights;
prohibition against retrospective criminal laws; prohibition against double
punishment; and rights of children.[97] The committee concluded
that insufficient evidence had been provided by the minister to demonstrate
that section 33A is compatible with these rights; and that the measure appears
to be incompatible with a number of these rights.[98]
1.152
For example, in relation to the right to a fair hearing, the process for
judicial review of a person's loss of citizenship is insufficient for a number
of reasons. Neither the bill nor the provisions of the Citizenship Act provide
for such review, rather, the Federal Court of Australia and High Court of
Australia's original jurisdiction is the only avenue available for judicial
review. It is unclear whether the onus of proof in such an application would
rest with the respondent or with the plaintiff (that is, with the person whose
citizenship has purportedly been lost). If the latter, the plaintiff may be
placed in the difficult position of having to prove that they had not engaged
in the conduct which led to the automatic loss of their citizenship. The
inherent difficulty in proving a negative for a plaintiff may seriously limit
that person's right to a fair hearing.
1.153
Second, the proceedings would be civil rather than criminal in nature
under Australian domestic law, operating on the civil standard of proof rather
than the criminal standard of beyond reasonable doubt, as well as lacking the
protections of a criminal proceeding. However, the conduct at issue would be
criminal conduct.
1.154
Third, the effect of the operation of sections 33AA and 35(1) of the
bill is that a person is considered to have lost their citizenship through
conduct. However, the evidence in relation to that alleged conduct in fact may
be contested, which means that an individual may be treated as a non-citizen
before having the opportunity to challenge or respond to allegations of
specified conduct. Accordingly, the committee concluded that the measure is
incompatible with the right to a fair hearing under international human rights
law.[99]
Declaration of a terrorist organisation
1.155
Australian Citizenship (IMMI 17/073: Declared Terrorist
Organisation—Jabhat Al-Nusra) Declaration 2017 [F2017L01031] (the declaration)
declares Jabhat Al-Nusra as a terrorist organisation for the purpose of section
35AA and section 33AA of the Citizenship Act. As noted above, section 33AA provides
that a dual Australian citizen will automatically cease to be an Australian
citizen if they engage in specified conduct with a specified intention. The
requisite intention for the purposes of section 33AA is if the conduct is done
with the intention of advancing a political, religious or ideological cause,
and coercing or influencing a government or intimidating the public or a
section of the public.
1.156
However, the declaration of a terrorist organisation has the effect that
the element of intention does not need to be proven in relation to a person.
Instead, if at the time the person engaged in the relevant conduct the person
was a member of a declared terrorist organisation (or acting on instruction of,
or in cooperation with, a declared terrorist organisation), the person is taken
to have engaged in the conduct with the requisite intention without further
need of proof of intention.
Compatibility of the measure with
human rights
1.157
By declaring an organisation to be a terrorist organisation under
section 35AA of the Citizenship Act, a person acting on instruction of, or
in cooperation with, the organisation or a member of the organisation is taken
to have engaged in the conduct with the requisite intention without the
requirement of further proof of intention. This expands the class of persons to
which the automatic cessation of citizenship may apply under section 33AA of
the Citizenship Act.
1.158
Accordingly, the declaration engages and limits the range of human
rights set out above at [1.151].
1.159
The statement of compatibility recognises that the declaration engages a
number of, though not all, these rights, but states that the declaration is
compatible with human rights because those limitations placed on human rights
are reasonable, necessary and proportionate in light of the declaration's
object and purpose, to protect the Australian community and Australia's
national security. The statement of compatibility addresses some of these
rights; however, it does not fully address the concerns previously raised in
the original assessment of the bill.[100]
1.160
The committee has also raised concerns in relation to the declaration of
other organisations for the purposes of section 33AA of the Citizenship Act.[101]
Committee comment
1.161
The original human rights assessment of the automatic loss of
citizenship by conduct now legislated for in section 33AA of the Citizenship
Act, including the requisite element of intention, concluded that the measure was
likely to be incompatible with multiple human rights.
1.162
The effect of the current instrument is to expand the class of
persons to which these provisions may apply. The preceding analysis indicates
that the instrument therefore raises the same significant human rights concerns
detailed in the original human rights assessment of the bill which introduced
the automatic loss of citizenship by conduct.
1.163
The statement of compatibility does not address a number of these
concerns, and the committee therefore draws to the attention of the minister
the requirements for the preparation of statements set out in the committee's Guidance
Note 1.
1.164
Noting the significant human rights concerns raised by the
automatic loss of citizenship by conduct, identified in the previous human
rights assessment of the measure, and the expansion of the class of persons to
which this automatic loss of citizenship applies under the declaration, the committee
draws the human rights implications of the declaration to the attention of the
parliament.
Charter of the United Nations (UN Sanction Enforcement Law) Amendment
Declaration 2017 (No. 2) [F2017L00991]
Purpose |
Replaces schedule 1 of the Charter
of the United Nations (UN Sanction Enforcement Law) Declaration 2008 to
provide a new list of specified 'UN sanction enforcement laws' to reflect the
making of the Charter of the United Nations (Sanctions – Democratic People's
Republic of Korea) Amendment (2017 Measures No.1) Regulations 2017 |
Portfolio |
Foreign Affairs and Trade |
Authorising legislation |
Charter of the United
Nations Act 1945 |
Last day to disallow |
15 sitting days after
tabling (tabled in the House of Representatives and the Senate 8 August 2017) |
Rights |
Fair trial; quality of law;
liberty (see Appendix 2) |
Status |
Advice only |
Background
1.165
The committee previously examined offence provisions arising out of sanctions
regulations on a number of previous occasions.[102]
The previous human rights assessment of such regulations noted that proposed
criminal offences arising from the breach of such regulations raised concerns
in relation to the right to a fair trial and the right to liberty.
Specifically, the offences did not appear to meet the quality of law test,
which provides that any measures which interfere with human rights must be
sufficiently certain and accessible, such that people are able to understand
when an interference with their rights will be justified.
Offences dealing with export and import sanctioned goods.
1.166
Schedule 1 of the Charter of the United Nations (UN Sanction Enforcement
Law) Declaration 2008 (the 2008 Declaration), defines various regulations as
'UN sanction enforcement laws'. The effect of this is to make a breach of those
regulations a criminal offence under the Charter of the United Nations Act
1945 (the United Nations Act). Accordingly, a person commits an offence
under the United Nations Act by engaging in conduct (including doing an act or
omitting to do an act) that contravenes the regulations set out in schedule 1
of the 2008 Declaration. This is then punishable by up to 10 years'
imprisonment and/or a fine of up to 2500 penalty units (or $450 000).
1.167
The Charter of the United Nations (UN Sanction Enforcement Law)
Amendment Declaration 2017 (No. 2) (the 2017 declaration) amends schedule 1 of
the 2008 Declaration and the list of regulations defined as 'UN sanction
enforcement laws'.
Compatibility of the measure with
human rights
1.168
The right to a fair trial and fair hearing is protected by article 14 of
the International Covenant on Civil and Political Rights (ICCPR). The right
applies to both criminal and civil proceedings. Article 9 of the ICCPR protects
the right to liberty including the right not to be arbitrarily detained. The prohibition
against arbitrary detention requires that the state should not deprive a person
of their liberty except in accordance with law. The notion of 'arbitrariness' includes
elements of inappropriateness, injustice and lack of predictability.
1.169
Human rights standards require that interferences with rights must have
a clear basis in law. This principle includes the requirement that laws must
satisfy the 'quality of law' test, which means that any measures which
interfere with human rights must be sufficiently certain and accessible, such
that people are able to understand when an interference with their rights will
be justified.
1.170
By amending the list of regulations which constitute 'UN sanction
enforcement laws' and consequently making a breach of those regulations a
criminal offence under the United Nations Act, the measure engages and may
limit the right to liberty. This is because they may result in a penalty of
imprisonment.
1.171
As the definition of 'UN sanction enforcement laws' may lack sufficient
certainty, the measure engages the right not to be arbitrarily detained and the
right to a fair trial. For example, the Charter of the United Nations
(Sanctions — Democratic People's Republic of Korea) Regulations 2008 (2008 DPRK
regulations) is listed in schedule 1 as a 'UN sanction enforcement law'. Breach
of these 2008 DPRK regulations is accordingly a criminal offence under the
United Nations Act. However, the definition of 'export sanctioned goods', which
is an important element of whether a person has engaged in prohibited conduct
such as export, import or supply under the 2008 DPRK regulations, may be
determined by reference to goods 'mentioned' in five listed documents.[103]
1.172
Alternatively, the Minister for Foreign Affairs may by legislative
instrument specify other 'goods mentioned in a document' to be prohibited for
export to, or importation from, the Democratic People's Republic of Korea
(DPRK).[104]
The Charter of the United Nations (Sanctions – Democratic People's Republic of
Korea) (Documents) Instrument 2017 [F2017L00539] (DPRK list) is such an
instrument. The previous human rights assessment of the DPRK list noted that
the list incorporates documents, including letters and information circulars,
into the definition of 'export and import sanctioned goods' for the purposes of
prohibited conduct in the 2008 DPRK regulations. Accordingly, the previous
human rights analysis stated that as the definition of an important element of
offences is determined by reference to goods 'mentioned' in the listed
documents, the offence appears to lack a clear legal basis as the definition is
vaguely drafted and imprecise.[105]
This raises specific concerns that, by making a breach of such regulations a
criminal offence, the application of such an offence provision may not be a
permissible limitation on the right to liberty as it may result in arbitrary
detention.
1.173
In this respect it is noted that measures limiting the right to liberty
must be precise enough that persons potentially subject to the offence
provisions are aware of the consequences of their actions.[106]
The United Nations Human Rights Committee has also noted that any substantive
grounds for detention 'must be prescribed by law and should be defined with
sufficient precision to avoid overly broad or arbitrary interpretation or
application'.[107]
1.174
Despite the human rights concerns raised in the committee's previous
reports, the statement of compatibility merely states that the measures in the
declaration 'do not engage, and are therefore compatible with, the human rights'.[108]
The statement of compatibility therefore does not meet the standards outlined
in the committee's Guidance Note 1.
Committee comment
1.175
The committee notes that the statement of compatibility for the
declaration provides no assessment of compatibility with the right to a fair
trial, the right to liberty, and quality of law test.
1.176
The committee requests that statements of compatibility for such
regulations going forward contain assessment of human rights compatibility in
accordance with Guidance Note 1.
1.177
Noting the human rights concerns identified in the preceding
analysis in relation to the Declaration, and the committee's previous
assessment of related regulations, the committee draws the human rights implications
of the Declaration to the attention of the Parliament.
Commission of Inquiry (Coal Seam Gas) Bill 2017
Purpose |
Seeks to establish a
Commission of Inquiry into the coal seam gas industry in Australia |
Sponsor |
Mr Bob Katter MP |
Introduced |
House of Representatives, 4
September 2017 |
Rights |
Fair hearing; not to
incriminate oneself; privacy; freedom of expression; freedom of assembly (see
Appendix 2) |
Status |
Advice only |
Requirement to provide evidence that may incriminate an individual
1.178
The Commission of Inquiry (Coal Seam Gas) Bill 2017 (the bill) seeks to
establish a Commission of Inquiry (Commission) into the coal seam gas industry
in Australia and for related purposes. The bill would invest the commission
with the full powers of a royal commission, as set out in the Royal
Commissions Act 1902 (RC Act).[109]
1.179
Section 6A of the RC Act provides that a person appearing as a witness for
a commission is not excused from answering a question on the ground that the
answer might tend to incriminate that person. Section 6P of the RC Act permits
a royal commission to disclose evidence relating to a contravention of a law to
certain persons and bodies, including the police and the Director of Public
Prosecutions.
Compatibility of the measure with
the right not to incriminate oneself
1.180
Specific guarantees of the right to a fair trial in the
determination of a criminal charge, guaranteed by article 14 of the International Covenant on Civil and Political Rights
(ICCPR), include the right not to incriminate oneself (article
14(3)(g)).
1.181
These rights are directly relevant where a person is required to give
information to a commission of inquiry which may incriminate them and that
incriminating information can be used either directly or indirectly by law
enforcement agencies to investigate criminal charges. Adopting the powers of a
royal commission, which include a power to require a witness to answer
questions even if it may incriminate them, engages and limits the right not to
incriminate oneself. The right not to incriminate oneself may be subject to
permissible limitations where the measure pursues a legitimate objective, and is
rationally connected to, and proportionate to achieving, that objective.
1.182
On a number of occasions previously, the committee has
outlined serious human rights concerns in relation to the powers of royal
commissions including in relation to a previous bill introduced by the
legislation proponent.[110] However, the statement of compatibility does not address the
limitation on the right not to incriminate oneself, but instead states that, by
applying the provisions of the RC Act, the bill:
...imports the same rights and protections that are given to
witnesses in Commonwealth Royal Commissions and judicial trials generally,
which have been found to be compatible with human rights and freedoms.
1.183
It is therefore unclear on what basis the statement of
compatibility claims that these powers have been found to be compatible with
human rights. It is further noted that powers of royal commissions are
different to judicial processes where ordinarily a person is not required to
provide information that may tend to incriminate themselves.
1.184
Additionally, while section 6A of the RC Act provides a 'use' immunity
for witnesses compelled to answer questions, the bill does not appear to
provide a 'derivative use' immunity in relation to self-incriminating evidence.
Use and derivative use immunities prevent compulsorily disclosed information
(or anything obtained as an indirect consequence of making a compulsory
disclosure) from being used in evidence against a witness.[111]
While the inclusion of both use and derivative use immunities is relevant to an
assessment of the proportionality of any measure that limits the right not to
incriminate oneself, they are not the only factors that may be relevant to whether
the limitation is the least rights restrictive approach to achieving a
legitimate objective.
Compatibility of the measure with the right to privacy
1.185
The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information,
particularly the storing, use and sharing of such information; and the right to
control the dissemination of information about one's private life.
1.186
By applying the RC Act offence for failure to appear as a witness and
answer questions, in circumstances where the witness is not afforded the
privilege against self-incrimination, the measure engages and limits the right
to privacy.
1.187
While the right to privacy may be subject to permissible limitations in
a range of circumstances, this particular limitation on the right to privacy
was not addressed in the statement of compatibility. The statement of
compatibility therefore does not meet the standards outlined in the committee's
Guidance Note 1, which require that, where a limitation on a right is
proposed, the statement of compatibility provide a reasoned and evidence-based
assessment of how the measure pursues a legitimate objective, is rationally
connected to that objective, and is proportionate.
Contempt of Commission
1.188
As set out above, the bill would invest the commission with the full
powers of a royal commission, as set out in the RC Act.[112]
1.189
Section 6O of the RC Act provides that a person commits an offence if
they:
-
intentionally insult or disturb a royal commission;
-
interrupt the proceedings of a royal commission;
-
use any insulting language towards a royal commission;
-
by writing or speech use words false and defamatory of a royal commission;
or
-
are in any manner guilty of any intentional contempt of a royal commission.
1.190
The penalty for the offence is two hundred dollars or imprisonment for
three months.
Compatibility of the measure with
the right to freedom of expression and the right to freedom of assembly
1.191
The right to freedom of expression requires the state not to arbitrarily
interfere with freedom of expression, particularly restrictions on political
debate. It protects all forms of expression and the means of their dissemination,
including spoken, written and sign language and non-verbal expression. The
right to peaceful assembly is the right of people to gather as a group for a
specific purpose.
1.192
On a number of occasions previously, the committee has
outlined potential human rights concerns in relation to the contempt of
commission powers.[113] As applied by the bill, the prohibition of any wilful
disturbance or disruption of a hearing of the Commission engages and may limit
the right to freedom of expression and the right to freedom of assembly. These
rights may be subject to permissible limitations where the measure pursues a
legitimate objective, is rationally connected to, and proportionate to
achieving, that objective. However, the statement of compatibility does not provide
any analysis or justification for the limitation on the freedom of expression
and the right to freedom of assembly.
1.193
It is not clear whether the restriction imposed may have the effect of
criminalising legitimate expression and assembly, for example, a demonstration
organised by persons to protest against what they consider as the excessive or
inappropriate use of the powers of the Commission or other matters relating to
the work of the Commission. As currently drafted, there may be a danger that
the provisions may limit legitimate criticism of or objection to the Commission
and its activities.
Issue of arrest warrants by the Commission
1.194
As set out above, the bill would invest the commission with the full
powers of a royal commission, as set out in the RC Act.[114]
1.195
Section 6B of the RC Act provides that if a person served with a summons
to attend before a royal commission as a witness fails to attend in accordance
with the summons, a President, Chair or Commissioner may issue a warrant to
arrest the person. This warrant authorises the arrest of the witness, the
bringing of the witness before the Commission and the detention of the witness
in custody for that purpose until the witness is released by order of the
member.
Compatibility of the measure with the
right to liberty
1.196
The right to liberty, which prohibits arbitrary detention, requires that
the state should not deprive a person of their liberty except in accordance
with law. The notion of 'arbitrariness' includes elements of inappropriateness,
injustice and lack of predictability.
1.197
Empowering the Commission to issue arrest warrants and to authorise the
detention of a witness, rather than requiring application to a court, engages
and limits the right to liberty. As noted above, the committee
has previously raised serious human rights concerns in relation to the powers
of royal commissions on a number of occasions.[115] The
statement of compatibility does not acknowledge the committee's previous
concerns with respect to related measures.
Committee comment
1.198
Noting the human rights concerns raised by the bill, the
committee draws the human rights implications of the bill to the attention of the
legislation proponent and the parliament.
1.199
If the bill proceeds to further stages of debate, the committee
may request further information from the legislation proponent.
Marriage Law Survey (Additional Safeguards) Bill 2017;
Advance to the Finance Minister Determination (No. 1 of 2017‑2018) [F2017L01005];
Census and Statistics (Statistical Information) Direction 2017
[F2017L01006]; and
Census and Statistics (Statistical Information) Amendment Direction 2017
[F2017L01041]
Purpose |
Introduces the framework
for the marriage law postal survey including a range of additional safeguards to support the conduct of the
Australian marriage law postal survey; an advance to the Finance Minister
which will be made available to the Australian Bureau of Statistics to
undertake the marriage law survey; and a direction by the treasurer to the
Australian Statistician to conduct the marriage law survey |
Portfolio |
Treasury; Finance |
Introduced |
Marriage Law Survey
(Additional Safeguards) Bill 2017: House of Representatives and Senate, 13
September 2017. The bill was passed in the House of Representatives and
Senate, and received Royal Assent, on 13 September 2017. Advance to the Finance Minister
Determination: Tabled in House of Representatives 9 August 2017, Senate 10
August 2017 (exempt from disallowance). Census and Statistics
(Statistical Information) Direction 2017 (as amended): Tabled in House of
Representatives 17 August 2017, Senate 4 September 2017 (exempt from
disallowance). |
Rights |
Multiple rights (see Appendix
2) |
Status |
Advice only |
Engagement of human rights in the marriage law survey
1.200
The Marriage Law Survey (Additional Safeguards) Bill 2017 (the bill) introduces
a range of measures to support the conduct of the Australian marriage law
postal survey. The bill was passed in the House of Representatives and Senate,
and received Royal Assent, on 13 September 2017. The Advance to the Finance
Minister Determination (No. 1 of 2017-2018) provides for an advance to the Minister
for Finance of $122 million which is to be made available to the Australian
Bureau of Statistics (ABS) to conduct a marriage law survey in which
Australians will be asked to express a view about whether the law should be
changed to allow same sex couples to marry. The Census and Statistics
(Statistical Information) Direction 2017 and the Census and Statistics
(Statistical Information) Amendment Direction 2017 make directions to the
Australian Statistician to collect and publish on or before 15 November
2017 statistical information on the marriage law survey.
1.201
In relation to the bill, as acknowledged in the statement of
compatibility, a number of the measures in the bill engage human rights, including
the right to freedom of expression and the right to equality and
non-discrimination.[116]
A number of the limitations the bill places on these rights are likely to be
permissible under international human rights law insofar as they are prescribed
by law, pursue a legitimate objective, are rationally connected to the
achievement of that objective, and are proportionate. For example, the
requirement in section 6 requiring all advertisements to identify the person or
entity authorising the advertisement restricts anonymous political speech and
may limit the right to privacy, but is likely to be a proportionate limitation
to the legitimate objectives of facilitating transparency and public confidence
in the survey process.[117]
1.202
Similarly, in prohibiting conduct which may vilify, intimidate or
threaten to cause harm to persons on the basis of their expression of views in
relation to the marriage law survey, or their religious conviction, sexual
orientation, gender identity or intersex status, section 15 of the bill engages
and promotes the right to equality and non‑discrimination and the right
to freedom of religion. It also engages and limits the right to freedom of
expression, however this aspect of the bill is likely to be a permissible
limitation on the right to freedom of expression as it pursues a legitimate
objective of protecting rights and freedoms of others, and appears to be
rationally connected with and proportionate to that objective.[118]
As the committee has previously reported, there is scope under international
law for Australia to determine the appropriate balance between the obligation
to provide protections against serious forms of discriminatory speech and the
right to freedom of expression.[119]
1.203
In relation to the legislative instruments, the statement of
compatibility for each of the instruments states that the instruments do not
engage or otherwise affect any applicable rights or freedoms. However, the
question in the marriage law survey concerns possible amendments to the
definition of 'marriage' in the Marriage Act 1961, specifically whether
the Marriage Act 1961 should be changed so as to allow same-sex couples
to marry. The committee has previously noted that by restricting marriage to
being between a man and a woman, the existing law[120]
appears to directly discriminate against same-sex couples on the basis of
sexual orientation.[121]
As the advance to the finance minister provides the funding through which the
marriage law survey can be undertaken, and the process through which the ABS
may collect data on the question of whether same-sex couples should be able to
marry, the right to equality and non-discrimination may be engaged. In this
respect, the committee notes that it has previously considered how the funding
of a plebiscite in relation to same-sex marriage may engage and limit these
rights.[122]
1.204
The remainder of the analysis below addresses specific human rights
issues that arise from the bill.
Obligations on broadcasters to give reasonable opportunities to broadcast
opposing views on marriage law survey matters
1.205
The bill introduced a series of obligations on broadcasters to give reasonable
opportunities to broadcast opposing views in relation to the marriage law
survey for a specified time. Section 11 requires that, during the limitation
period,[123]
broadcasters which broadcast 'marriage law survey matter' expressing a view in
relation to the 'marriage law survey question'[124]
must give a reasonable opportunity to a representative of an organisation that
holds the opposite view. 'Marriage law survey matter' is defined in section 5
to mean the following:
- matter commenting on same-sex marriage, the marriage law
survey process or the marriage law survey question (other than matter printed
or published by the Statistician);
- matter stating or indicating the marriage law survey
question (other than matter printed or published by the Statistician);
- matter referring to a meeting held or to be held in
connection with same-sex marriage, the marriage law survey process or the
marriage law survey question.
1.206
According to the explanatory memorandum, the effect of section 11 is to
require broadcasters to give representatives from both sides of the same-sex
marriage debate a reasonable opportunity to broadcast material while the
marriage law survey is underway.[125]
1.207
The requirements are similar to those imposed on broadcasters during
elections by the Broadcasting Services Act 1992 (Broadcasting Act).
Under the Broadcasting Act, broadcasters must give reasonable opportunities for
the broadcasting of election matter to all political parties contesting the
election period. However, this is limited to political parties that were
represented in either House of Parliament immediately before the election.[126]
It is also confined to 'election matters' which relates to soliciting votes for
a candidate, supporting a political party or commenting on policies of the
party to matters being put to the electors.[127]
Compatibility of the measure with
multiple rights
1.208
The statement of compatibility states that the bill would promote the
right to freedom of opinion and expression 'by ensuring that broadcasters
cannot selectively broadcast only one side of the debate, allowing both sides
of the debate the opportunity to broadcast in relation to the survey'.[128]
1.209
The right to freedom of expression requires states parties to the International
Covenant on Civil and Political Rights (ICCPR) to ensure that broadcasting
services to the public operate in an independent manner and should guarantee
their editorial freedom.[129]
While enabling both sides of the same-sex marriage debate to have a reasonable
opportunity to broadcast material may serve a legitimate objective of promoting
freedom of expression and the right to participate in public affairs, it is a
limitation on editorial freedom and therefore is a limitation on the right to
freedom of expression.
1.210
The right to freedom of expression may be subject to limitations that
are necessary to protect the rights or reputations of others, national
security, public order, or public health or morals. In order for a limitation
to be permissible under international human rights law, limitations must be
prescribed by law, pursue a legitimate objective, be rationally connected to
the achievement of that objective and be a proportionate means of achieving
that objective.
1.211
The limitation on the freedom of expression is acknowledged by the
minister in the statement of compatibility as follows:
While this requirement may affect editorial independence of
broadcasters, the requirement would be time limited. The impact on broadcasters
would be balanced with the promotion of the rights to freedom of opinion and
expression.[130]
1.212
In determining the proportionality of a measure, it is relevant whether
there are effective safeguards or control over the measures. In this respect,
the statement of compatibility cites the time-limited nature of the measure. In
contrast, in addition to a time-limit, the requirements under the Broadcasting
Act during elections include an additional safeguard insofar as broadcasting
opportunities are only required for political parties already represented in
parliament, the consequence of which is that broadcasters are not required to
broadcast the advertisements of organisations unlikely to be elected. No
equivalent safeguard is included in the bill. It is also noted that the
definition of 'marriage law survey' is quite broad as it is not restricted to
the question of whether the law should be amended, but also includes any matter
commenting on same-sex marriage more broadly.
1.213
Further, while the statement of compatibility acknowledges that the
rights of equality and non-discrimination are engaged by the bill, there is no
specific discussion of the limitations on the right to equality and
non-discrimination that arise from the obligations imposed on broadcasters. In
this respect, the committee has previously reported that requiring broadcasters
to give a reasonable opportunity to representatives of organisations opposed to
same sex marriage may limit the right to equality and non-discrimination.[131]
The committee noted as an example that the requirement could lead to
vilification of persons on the basis of their sexual orientation, which would
not further respect for the principles of equality and non-discrimination.[132]
The committee has previously noted that campaigns in favour of changing the law
to allow same-sex marriage could lead to vilification of persons on the basis
of religious belief.[133]
It is noted that the bill includes a safeguard in the form of a provision
prohibiting vilification on the basis of a person's expression of views in
relation to the marriage law survey, or their religious conviction, sexual
orientation, gender identity or intersex status (discussed above), which may
provide an effective safeguard or control over the measure.
Committee comment
1.214
The committee notes that the obligations on broadcasters to give
reasonable opportunities to broadcast opposing views on marriage law survey
matters engage the right to freedom of expression and the right to equality and
non-discrimination.
1.215
The committee draws the human rights implications of the bill to
the attention of parliament.
Bills not raising human rights
concerns
1.216
Of the bills introduced into the Parliament between 11 and 14 September,
the following did not raise human rights concerns (this may be because the bill
does not engage or promotes human rights, and/or permissibly limits human
rights):
-
Coastal Trading (Revitalising Australian Shipping) Amendment Bill
2017;
-
Competition and Consumer Amendment (Exploitation of Indigenous
Culture) Bill 2017;
-
Corporations Amendment (Crowd-sourced Funding for Proprietary
Companies) Bill 2017;
-
Criminal Code Amendment (Impersonating a Commonwealth Body) Bill
2017;
-
Customs Amendment (Anti-Dumping Measures) Bill 2017;
-
Customs Amendment (Safer Cladding) Bill 2017;
-
Fair Work Amendment (Recovering Unpaid Superannuation) Bill 2017;
-
Fair Work Amendment (Terminating Enterprise Agreements) Bill 2017;
-
Family Assistance and Child Support Legislation Amendment
(Protecting Children) Bill 2017;
-
Lands Acquisition Amendment (Public Purpose) Bill 2017;
-
Medicinal Cannabis Legislation Amendment (Securing Patient
Access) Bill 2017;
-
Parliamentary Business Resources Amendment (Voluntary Opt-out)
Bill 2017;
-
Renewable Fuel Bill 2017;
-
Superannuation Laws Amendment (Strengthening Trustee Arrangements)
Bill 2017;
-
Therapeutic Goods Amendment (2017 Measures No. 1) Bill 2017;
-
Therapeutic Goods (Charges) Amendment Bill 2017;
-
Treasury Laws Amendment (Improving Accountability and Member
Outcomes in Superannuation Measures No. 1) Bill 2017;
-
Treasury Laws Amendment (Improving Accountability and Member
Outcomes in Superannuation Measures No. 2) Bill 2017;
-
Treasury Laws Amendment (Putting Consumers First—Establishment of
the Australian Financial Complaints Authority) Bill 2017; and
-
Treasury Laws Amendment (2017 Measures No. 6) Bill 2017.
Navigation: Previous Page | Contents | Next Page