New and continuing matters
1.1
This chapter provides assessments of the human rights compatibility of:
-
bills introduced into the Parliament between 28
November 2016 and 9 February 2017 (consideration of eight bills from
this period has been deferred);[1]
-
legislative instruments received between 11 November and 15
December 2016 (consideration of four legislative instruments from this period
has been deferred);[2]
and
-
bills and legislative instruments previously deferred.
1.2
The chapter also includes reports on matters previously raised, in
relation to which the committee seeks further information following
consideration of a response from the legislation proponent.
Instruments not raising human rights concerns
1.3
The committee has examined the legislative instruments received in the
relevant period, as listed in the Journals of the Senate.[3]
Instruments raising human rights concerns are identified in this chapter.
1.4
The committee has concluded that the remaining instruments do not raise
human rights concerns, either because they do not engage human rights, they
contain only justifiable (or marginal) limitations on human rights or because
they promote human rights and do not require additional comment.
1.5
The committee has also concluded its examination of the previously
deferred Australian Border Force (Secrecy and Disclosure) Amendment (2016
Measures No. 1) Rule 2016 [F2016L01461] and Defence Force Discipline Appeals
Regulation 2016 [F2016L01452] and makes no further comment on the instruments.[4]
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.
Treasury Laws Amendment (2016 Measures No. 1) Bill 2016
|
Purpose
|
Seeks to amend: the Terrorism
Insurance Act 2003 to clarify that losses attributable to terrorist
attacks using chemical or biological means are covered by the terrorism
insurance scheme; the Corporations Act 2001 to provide that employee
share scheme disclosure documents lodged with the Australian Securities and
Investments Commission are not made publicly available for certain start-up
companies, and provide protection for retail client money and property held
by financial services licensees in relation to over-the-counter derivative
products; the Income Tax Assessment Act 1997 to update the list of
deductible gift recipients; and the Income Tax Assessment Act 1936 and
Income Tax Assessment Act 1997 to provide income tax relief to
eligible New Zealand special category visa holders who are impacted by
disasters in Australia
|
|
Portfolio
|
Treasury
|
|
Introduced
|
House of Representatives, 1
December 2016
|
|
Rights
|
Fair trial (see Appendix
2)
|
Civil penalty provisions
1.7
Schedule 5 of the Treasury Laws Amendment (2016 Measures No. 1) Bill
2016 (the bill) introduces a power into the Corporations Act 2001 for
the Australian Securities and Investments Commission to make rules by
legislative instrument in relation to derivative retail client money.[5]
The client money reporting rules may include a penalty amount for a rule, which
must not exceed $1,000,000.[6]
This penalty could apply to a natural person. Failure to comply with the rules
is a civil penalty provision.[7]
Compatibility of the measure with
the right to a fair trial
1.8
Many bills and existing statutes contain civil penalty provisions. These
are generally prohibitions on particular forms of conduct that give rise to
liability for a 'civil penalty' enforceable by a court. As these penalties are
pecuniary and do not include the possibility of imprisonment, they are said to
be 'civil' in nature and do not constitute criminal offences under Australian
law. Given their 'civil' character, applications for a civil penalty order are
dealt with in accordance with the rules and procedures that apply in relation
to civil matters; that is, proof is on the balance of probabilities.
1.9
However, civil penalty provisions may engage the criminal process rights
under articles 14 and 15 of the International Covenant on Civil and Political
Rights (ICCPR) where the penalty may be regarded as 'criminal' for the purposes
of international human rights law. The term 'criminal' has an 'autonomous'
meaning in human rights law (see Appendix 2). In other words, a penalty or
other sanction may be 'criminal' for the purposes of the ICCPR even though it
is considered to be 'civil' under Australian domestic law.
1.10
There is a range of international and comparative jurisprudence on
whether a 'civil' penalty is likely to be considered 'criminal' for the
purposes of human rights law. 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.
1.11
A civil penalty of up to $1,000,000 penalty units is a substantial
penalty. The measure in the bill therefore engages the right to a fair trial.
However, the statement of compatibility states that Schedule 5 does not engage
any of the applicable rights or freedoms.[8]
The committee's expectations in relation to the preparation of statements of
compatibility are set out in its Guidance Note 1.
1.12
When assessing the severity of a pecuniary penalty, regard must be had
to the amount of the penalty, the nature of the industry or sector being
regulated and the maximum amount of the civil penalty that may be imposed
relative to the penalty that may be imposed for a corresponding criminal
offence.
1.13
The explanatory memorandum provides that the maximum penalty that may be
included in the rules is 'equivalent to the maximum penalty under the market
integrity rules, which contain corresponding reporting and reconciliation requirements
made in connection with dealings in exchange-traded derivatives', and that this
proposed measure is 'consistent with the principle that penalties should be
consistent for offences of a similar kind or level of seriousness.'[9]
The explanatory memorandum goes on to state that the maximum penalty 'reflects
that misuse of retail client money is a serious matter', and further states
that:
[s]afekeeping of client monies is a critical factor in
preserving investor confidence in financial and derivatives markets, and it is
important that penalties for breaches of the law in this area (including the
reporting rules) are sufficiently severe to have a genuine deterrent effect. In
addition, the amount of client money that is entrusted to licensees may be very
large. For example, the collapse of the broker MF Global resulted in around
$320 million of client monies being placed at risk in Australia alone. As the
cost to the individual investors and wider confidence in the financial system
from a breach of the client money rules is potentially very significant, the
proposed penalty amount is considered appropriate for ensuring a commensurate
deterrent effect.[10]
1.14
However, the provision imposing a maximum civil penalty of $1,000,000
appears to impose a particularly severe penalty, and for this reason may be
considered to be 'criminal' for the purposes of international human rights law.
1.15
The consequence of this would be that the civil penalty provisions in
the bill must be shown to be consistent with the criminal process guarantees
set out in articles 14 and 15 of the ICCPR.
1.16
Section 1317P of the Corporations Act 2001 provides that criminal
proceedings may be started against a person for conduct that is substantially
the same as conduct constituting a contravention of a civil penalty provision
regardless of whether a penalty has been applied, except in limited
circumstances.[11]
If the civil penalty provision is considered criminal in nature, this raises
concerns under article 14(7) of the ICCPR which provides that no one is to be
tried or punished again for an offence for which he or she has already been
finally convicted or acquitted (double jeopardy).
Committee comment
1.17
The preceding analysis raises questions as to the compatibility
of the measure with the right to a fair trial.
1.18
The committee notes that the statement of compatibility does
not address the engagement of this right by the measure. The committee
therefore seeks further information from the Minister for Revenue and
Financial Services as to whether the civil penalty provision may be considered
to be criminal in nature for the purposes of international human rights law
(having regard to the committee's Guidance Note 2) and, if so, whether
the measure accords with the right to a fair trial.
Jervis Bay Territory Marine Safety Ordinance 2016 [F2016L01756]
|
Purpose
|
Provides safety protections
and navigation requirements similar to those established by the New South
Wales Marine Act 1998 to apply in the Jervis Bay Territory. Sets minimum
safety equipment standards, prescribes requirements for wearing lifejackets
and creates offences, including for operating vessels while under the
influence of alcohol and drugs in the Jervis Bay Territory
|
|
Portfolio
|
Infrastructure and Regional
Development
|
|
Authorising legislation
|
Jervis Bay Territory
Acceptance Act 1915
|
|
Last day to disallow
|
20 March 2017
|
|
Rights
|
Presumption of innocence;
liberty; privacy (see Appendix 2)
|
Reverse legal burden of proof
1.19
Section 56 of the Jervis Bay Territory Marine Safety Ordinance 2016
[F2016L01756] (the Ordinance) makes it an offence for a person under the age of
18 to either operate a vessel in Territory waters or supervise a junior
operator, where there is present in his or her breath or blood the youth range
prescribed concentration of alcohol. Section 63 makes it a defence for this
offence if the defendant proves that, at the time the defendant was operating a
vessel or supervising a juvenile operator of the vessel, the presence of
alcohol in the defendant's breath or blood of the youth was not caused (in
whole or in part) by either the consumption of an alcoholic beverage (other
than for religious observance) or consumption or use of any other substance
(such as food or medicine) for the purpose of consuming alcohol. This has the
effect of reversing the legal burden of proof applying to the section 56
offence pursuant to section 13.4 of the Commonwealth Criminal Code.[12]
Compatibility of the measure with
the right to the presumption of innocence
1.20
The right to a fair trial includes the right to be presumed innocent.
Generally, consistency with the presumption of innocence requires the
prosecution to prove each element of an offence beyond reasonable doubt (see Appendix
2).
1.21
The measure at section 63 of the Ordinance engages and limits the right
to a fair trial by requiring the defendant to prove the legal burden.
1.22
Where the right to the presumption of innocence is engaged and limited
by a measure, in order for this limitation to be justifiable under international
human rights law, it must be demonstrated that the measure pursues a legitimate
objective and that the limitation on the right is rationally connected and
proportionate to the stated objective.
1.23
The statement of compatibility does not identify that the right to the
presumption of innocence is engaged and limited by these measures. However the
explanatory statement provides that:
[t]he religious or medicinal consumption of alcohol is likely
to be exclusively within the knowledge of the defendant, and thus it would be
unworkable if the prosecution bore the legal burden in relation to this.
It is appropriate that the defendant bears the legal burden
in relation to this defence because of the potentially significant risks to
public safety posed by a person affected by alcohol who is in charge of a
vessel.[13]
1.24
It therefore appears that the objective of the measure is to ensure
public safety. This appears to be a legitimate objective for the purposes of
international human rights law. However, there is no discussion of whether this
measure is rationally connected or proportionate to the apparent objective. In
particular, while the explanatory statement sets out a possible basis for
reversing the evidential burden of proof (i.e. that the matters are peculiarly
in the knowledge of the defendant) it does not explain why it is necessary to
reverse the legal burden of proof. Additionally, while the explanatory
statement states that it is appropriate to reverse the legal burden of proof
because of the risks to public safety posed by people affected by alcohol in
charge of vessels, there is no explanation as to how reversing the legal burden
of proof for the offence would be more effective in reducing such risks as
opposed to having the offence in place without any reverse legal burden of
proof.
1.25
As set out the committee's Guidance Note 2,[14]
reverse burden offences are likely to be compatible with the presumption of
innocence where they are shown by the legislation proponent to be reasonable,
necessary and proportionate in pursuit of a legitimate objective. Claims of
greater convenience or ease for the prosecution in proving a case will be
insufficient, in and of themselves, to justify a limitation on the defendant's
right to be presumed innocent. This is particularly the case in relation to the
reversal of the legal burden of proof. A defendant's right to be
presumed innocent is a key principle of the criminal justice system, as it
safeguards the defendant's rights not to be wrongfully convicted. Reversing the
legal burden of proof undermines this principle by requiring the defendant to
prove his or her innocence on the balance of probabilities.
1.26
It is the committee's usual expectation that, where a reverse burden
offence is introduced, legislation proponents provide a human rights assessment
in the statement of compatibility, in accordance with the committee's Guidance
Note 1.[15]
Committee comment
1.27
The committee considers that the measure in section 63, which
reverses the legal burden of proof, engages and limits the right to be presumed
innocent, as it requires the defendant to prove elements of the offence. As set
out above, the statement of compatibility does not justify that limitation for
the purpose of international human rights law. The committee therefore seeks
the advice of the Minister for Local Government and Territories as to whether
the limitation on the presumption of innocence is rationally
connected to, and a proportionate approach to achieving, the stated objective.
Alcohol and drug testing
1.28
Section 64 of the Ordinance provides that the Road Transport (Alcohol
and Drugs) Act 1977 (Australian Capital Territory)[16]
(the ACT Act) applies in relation to a person who operates a vessel in
Territory waters.
1.29
As the ACT Act applies to the detection of people who drive motor
vehicles after consuming alcohol or drugs, offences by those people, and
measures for the treatment and rehabilitation of those people, the Ordinance
sets out how the ACT Act applies specifically to vessel owners and operators.[17]
1.30
As the Ordinance directly incorporates the law set out in the ACT Act,
in assessing the compatibility of the Ordinance with human rights, the
committee is required to assess the compatibility of the incorporated law with
human rights.
Compatibility of the measure with
multiple rights
1.31
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 (see Appendix 2).
1.32
The right to privacy prohibits arbitrary or unlawful interferences with
an individual's privacy, family, correspondence or home. The right to privacy
includes protection of our physical selves against invasive action, including
the right to personal autonomy and physical and psychological integrity,
including respect for reproductive autonomy and autonomy over one's own body
(including in relation to medical testing) (see Appendix 2).
1.33
The provisions of the ACT Act engage and limit a number of rights,
including the right to liberty and the right to privacy.[18]
1.34
The statement of compatibility recognises that the incorporation of the
ACT Act engages and limits the right to liberty and the right to privacy, and
provides some human rights analysis of the incorporation of the ACT Act.
1.35
In respect of the right to liberty, the statement of compatibility
recognises that the ACT Act, in enabling a police officer to take a person into
custody if they have a positive result or refuse to take a screening test,[19]
engages and limits this right.[20]
However, the statement of compatibility states that while it limits the right
to liberty it does so 'in circumstances where the person may cause danger to
others if they operate a vessel while under the influence of alcohol or drugs.'[21]
1.36
Ensuring public safety is a legitimate objective for the purposes of
international human rights law, however, the statement of compatibility does
not provide further analysis of how the limitation is rationally connected to
or proportionate to the achievement of the stated objective.[22]
In response to a review of the ACT Act, the ACT Human Rights Commission
identified that the right not to be arbitrarily detained and arrested may be
unlawfully restricted by random drug‑testing which is not predicated on
the relevant police officer having a 'reasonable suspicion' on which to ground
the request for a sample to test.[23]
1.37
The statement of compatibility also recognises[24]
that the right to privacy is engaged and limited by the incorporation of the
ACT Act, specifically in relation to provisions that:
-
require people to give samples of breath, blood and oral fluid
when requested;[25]
-
require a person to undergo a medical examination in some
circumstances,[26]
and create offences of refusing to undergo a drug or alcohol screening test,[27]
or a blood test;[28]
-
give police the power to enter premises to administer an alcohol
or drug screening test;[29]
and
-
give police the power to search a person who is taken into
custody, and to search their clothing. In this case, a police officer may
request the assistance of another police officer of the same sex as the person
being searched.[30]
1.38
The statement of compatibility, in recognising that the right to privacy
may be limited by applying these provisions in the Ordinance, identifies that
'[t]he public safety benefits offered by random breath testing drivers have
been established in Australia over decades'[31]
and that the limitations are 'consistent with existing marine safety
legislation in the adjoining NSW waters'.[32]
Accordingly, the measures appear to be rationally connected to the legitimate
objective of ensuring public safety.
1.39
In terms of whether the limitation on the right to privacy is
proportionate to the stated objective, the statement of compatibility
identifies that:
[t]he provisions from the ACT Act offer some privacy
protections: sections 13 and 13F require that reasonably practicable steps be
taken so that it is not readily apparent to the public that breath or oral
fluid analysis are being carried out. Section 14 also limits the circumstances
in which alcohol and drug tests can be carried out, particularly where
conducting the test may be detrimental to the health of the subject.[33]
1.40
However, there are questions over whether the limitation on the right to
privacy is proportionate to the stated objective. For example, the ACT Human
Rights Commission identified that where saliva and blood samples are collected,
there need to be measures in place to protect against the possibility that
these samples could become public knowledge through their tender in court in
criminal proceedings.[34]
1.41
Further, the statement of compatibility does not examine how other
rights, such as the right to a fair trial, are engaged and limited by the
measure. For example, there is no discussion of the strict liability offence in
the ACT Act for a refusal to undergo drug, alcohol and blood screening tests,
which carries a maximum of 30 penalty units.[35]
The ACT Human Rights Commission also identified concerns with the operation or
effect of the ACT Act in respect of this right.[36]
Committee comment
1.42
The committee notes that the right to liberty is engaged and
limited by the measure through the reference in the Ordinance to the ACT Act,
but notes that the statement of compatibility does not provide an analysis of
how the limitation is rationally connected to or proportionate to the
achievement of the stated objective.
1.43
The committee also notes that the right to privacy is engaged
through the reference in the Ordinance to the ACT Act and the ACT Human Rights
Commission has raised concerns with the ACT Act, in relation to the right to
privacy and other rights that may be engaged and limited by the ACT Act.
1.44
Accordingly, the committee seeks the advice of the Minister for Local
Government and Territories as to the extent to which the ACT Act complies with
international human rights law.
Search and entry powers
1.45
Section 83 of the Ordinance empowers a police officer to board a vessel
and exercise monitoring powers[37]
for the purpose of: finding out whether the Ordinance and the rules[38]
are being, or have been complied with; investigating a marine accident;
conducting a marine safety operation; or asking questions about the nature and
operations of the vessel.[39]
Compatibility of the measure with
the right to privacy
1.46
The search and entry powers engage and limit the right to privacy by
empowering police officers, without the need to obtain a warrant, to board and
search a person's vessel (which could, in some cases, include a person's place
of abode).
1.47
The statement of compatibility recognises that this right is engaged by
the measure.[40]
It states that these are coercive powers and that, as vessels are inherently
mobile, investigation and enforcement activities need to be undertaken when an
opportunity arises.[41]
As such, it states that obtaining a warrant for a vessel for the purposes of an
investigation 'may be impractical, and may limit police officers' capacity to
carry out their investigative functions under the Ordinance effectively'.[42]
1.48
The objective of enabling police officers to carry out investigations
and enforcement activities effectively is likely to be regarded as a legitimate
objective for the purposes of international human rights law. While the
limitation on the right to privacy of allowing police officers to board,
inspect and detain vessels may be effective in achieving that objective
(rationally connected), the question arises as to whether the limitation is
proportionate to the stated objective, in particular, whether it is the least
rights restrictive approach.
1.49
The statement of compatibility provides that the search and entry powers
under the Ordinance are limited to the Australian Federal Police, and may only
be exercised in limited circumstances.[43]
However, section 92 of the Ordinance provides that a police officer may be
'assisted by other persons in exercising powers or performing functions or
duties under this Part, if that assistance is necessary and reasonable'. Such a
person can also board the vessel and exercise the powers and perform the
functions or duties conferred on the police officer, in accordance with a
direction given by the officer. This would appear to allow the police to confer
on any person the power to assist in the exercise of these coercive
powers.
1.50
In addition, while the statement of compatibility states that the search
and entry powers can only be exercised in limited circumstances, section 83 in
fact confers a range of broad purposes for the exercise of these powers,
including 'finding out whether this Ordinance and the rules are being, or have
been, complied with' and 'asking questions' about the nature or operations of
the vessel.[44]
These are broad purposes that do not require the police officer to have any
suspicion at all as to whether an offence or a breach of the rules may have
been, or may be being, committed.
1.51
Additionally, there is also no requirement that the police officer first
seek the consent of the occupier before boarding. There is also no requirement
that, if consent is not granted, a warrant be sought before search and entry
powers are exercised where it is reasonably practicable to do so. While it may
be accepted that vessels are mobile and operating in areas where there is
limited or no mobile telephone coverage,[45]
there may be circumstances where it is possible to quickly obtain a warrant
before these coercive powers are exercised.
Committee comment
1.52
The committee notes that the right to privacy is engaged and
limited by the search and entry powers contained in the Ordinance and the above
analysis raises questions as to whether the measure is the least rights
restrictive way to achieve the stated aim.
1.53
Accordingly, the committee requests the advice of the Minister
for Local Government and Territories as to whether the limitation is
proportionate to achieving its objective, including whether there are less
rights restrictive ways to achieve the stated objective, such as:
-
limiting the exercise of the powers to police officers (and
not 'persons assisting' as under section 92); and
-
requiring a police officer to seek the consent of the occupier
of the vessel before exercising the search and entry powers; and
-
if consent is not granted, ensuring the search and entry
powers can only be exercised when the police officer holds a reasonable
suspicion that the Ordinance and rules may not be being complied with and to
investigate accidents or conduct investigations; and
-
that the default position is that a warrant be obtained to
exercise these powers if consent is not granted, unless it is not reasonably
practicable to obtain a search warrant.
Migration Legislation Amendment (2016 Measures No. 4)
Regulation 2016 [F2016L01696]
|
Purpose
|
Amends the Migration
Regulations 1994 to make various changes to the immigration citizenship
policy, including changing the definition of member of the family unit for
most visas except protection, refugee and humanitarian visas
|
|
Portfolio
|
Immigration and Border
Protection
|
|
Authorising legislation
|
Migration Act 1958
|
|
Last day to disallow
|
13 February 2017
|
|
Right
|
Protection of the family
(see Appendix 2)
|
Narrowing the definition of the member of a family unit
1.54
Schedule 4 of the Migration Legislation Amendment (2016 Measures No. 4)
Regulation 2016 [F2016L01696] (the regulation) changes the general definition
of 'member of the family unit' such that extended family members are no longer
included in this definition. A member of a family unit will therefore only
include the spouse or de facto partner of a primary applicant, and the
dependent children, under the age of 23 or who are over this age but
incapacitated, of the primary applicant or their partner (previously there was
no age limit for the children of an applicant).[46]
A child over 23 who is not incapacitated will therefore be considered an
extended family member, and would not fall within the definition of a 'member
of the family unit' (and therefore not entitled to family reunion).
1.55
In respect of protection, refugee and humanitarian visas,[47]
a person will continue to be a member of the family unit of another person (the
family head) if the person meets the criteria for the general definition of a
member of a family unit, as well as if the person is a dependent child of any
age or a single dependent relative of any age who is usually resident in the
household of the family head.[48]
Compatibility of the measure with
the right to protection of the family
1.56
The right to protection of the family includes ensuring that family
members are not involuntarily and unreasonably separated from one another (see Appendix 2).
Human rights gives a broad definition of what constitutes 'family'; it refers
not only to spouses, parents and children, but also to unmarried and same-sex
couples and extended family members.[49]
1.57
This measure engages and limits the right to protection of the family
for visa holders, other than holders of protection, refugee and humanitarian
visas,[50]
as it could operate to separate parents and their adult children and extended
members of the same family by excluding those family members from being
considered a 'member of the family unit'. This would apply regardless of the
circumstances of an individual family.
1.58
Where a measure limits a human right, in order to be a permissible
limitation, it must be demonstrated that the measure supports a legitimate
objective, is rationally connected to that objective and is a proportionate way
to achieve that objective.
1.59
The statement of compatibility identifies that the protection of the
family unit is engaged by the measure, however, it also states that:
...protection of the family unit under articles 17 and 23 [of
the ICCPR] does not amount to a right to enter and remain in Australia where
there is no other right to do so. Nor do they give rise to an obligation on a
State to take positive steps to facilitate family reunification.[51]
1.60
Although Australia's obligations under international human rights law do
not extend to non-citizens over whom Australia has no jurisdiction, where a
person is under Australia's jurisdiction for the purposes of international
human rights law, human rights obligations will apply. As such, Australia is
required not to arbitrarily or unlawfully (for the purposes of international
human rights law) interfere in the family life of visa holders. For example, if
a visa holder is residing in Australia, the government must respect, protect
and fulfil this person's right to protection of their family. This includes
ensuring family members are not involuntarily separated from one another.
1.61
The statement of compatibility does not explicitly identify a legitimate
objective that is supported by the measure; however, it does note that the new provisions
are intended to better align 'migration pathways for relatives of new migrants
with those for Australian citizens and existing permanent residents'.[52]
For a limitation on a right to seek to achieve a legitimate objective, it must
be demonstrated that it is one that is necessary and addresses an area of
public or social concern that is pressing and substantial enough to warrant
limiting the right.
1.62
The committee's usual expectation where a measure may limit a human
right is that the accompanying statement of compatibility provide a reasoned
and evidence-based explanation of how the measure supports a legitimate
objective for the purposes of international human rights law. This conforms
with the committee's Guidance Note 1,[53]
and the Attorney-General's Department's guidance on the preparation of
statements of compatibility, which states that the objective 'must be shown to
be a pressing and substantial concern. Where possible, provide empirical data
that demonstrates that the objectives being sought are important'.[54]
1.63
The statement of compatibility has not demonstrated that better aligning
conditions imposed on certain classes of visa holders with those conditions
imposed on citizens and permanent residents seeks to address an area of
pressing or social concern. Additionally, a limitation must be rationally
connected to, and a proportionate way to achieve, its legitimate objective in
order to be justifiable in international human rights law. The statement of
compatibility identifies that extended family members who are now excluded from
being a member of the family unit are nevertheless able to apply for other visa
classes where they meet the eligibility criteria in their own right. However,
there is no explanation in the statement of compatibility as to whether there
is sufficient flexibility to treat individual cases differently, based on their
merits.
Committee comment
1.64
The committee notes that the narrowing of the definition of
'member of the family unit' engages and limits the right to protection of the
family. The statement of compatibility has not sufficiently justified this
limitation for the purposes of international human rights law.
1.65
The committee notes that the preceding analysis raises questions
as to whether the limitation on the right to protection of the family seeks to
achieve a legitimate objective, whether it has a rational connection to that
objective, and whether it is proportionate to that objective.
1.66
Accordingly, the committee requests the advice of the Minister
for Immigration and Border Protection 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 that objective; and
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective.
Narcotic Drugs Regulation 2016 [F2016L01613]
|
Purpose
|
Makes regulations that are
necessary for the carrying out, or giving effect to, the regulatory framework
for the licencing of the cultivation of cannabis and the production of
cannabis and cannabis resins for medicinal and scientific purposes, as well
as in relation to the manufacture of drugs
|
|
Portfolio
|
Health
|
|
Authorising legislation
|
Narcotic Drugs Act 1967
|
|
Last day to disallow
|
13 February 2017
|
|
Rights
|
Work; equality and
non-discrimination (see Appendix 2)
|
Requirement to only engage 'suitable persons'
1.67
The Narcotic Drugs Regulation 2016 [F2016L01613] (the regulation)
implements part of the regulatory framework for licensing the cultivation,
production and manufacture of medicinal cannabis under the Narcotic Drugs
Act 1967[55]
(the Act).
1.68
The regulation prescribes a class of 'unsuitable persons' whom a
licence holder (with authority to cultivate, produce or manufacture medical
cannabis) must take all reasonable steps not to employ or engage to carry out
activities authorised by the licence.[56]
These include persons who are undertaking or have undertaken treatment for drug
addiction, persons who have a drug addiction, or persons who are undischarged
bankrupts. In the context of employing or engaging suitable staff, the
regulation also prescribes circumstances in which a person is taken not to be
suitable to carry out activities authorised by a cannabis licence at a
particular time.[57]
These include where, in the five years before the person is to be employed, the
person has used illicit drugs; been convicted of a drug related offence; or
been convicted of an offence against a law of the Commonwealth or a state or
territory that involved theft, or that was punishable by a maximum penalty of
imprisonment of three months or more.
Compatibility of the measure with
the right to work and the right to equality and non-discrimination
1.69
The right to work provides that everyone must be able to freely accept
or choose their work, and includes a right not to be unfairly deprived of work
(see Appendix 2). The right to work also requires that states provide a system
of protection guaranteeing access to employment. This right must be made
available in a non-discriminatory way.[58]
1.70
By prohibiting medicinal cannabis licence holders from employing or
engaging prescribed 'unsuitable persons', and by preventing certain persons
(who in the 5 years prior to employment or engagement have been subject to
certain prescribed circumstances) from carrying out activities authorised by a
cannabis licence, the measure engages and limits the right to work and the
right to equality and non-discrimination.
1.71
The statement of compatibility does not discuss this measure, or the
rights that are engaged and limited by the measure.
1.72
The committee's usual expectation where a measure may limit a human
right is that the accompanying statement of compatibility provide a reasoned
and evidence-based explanation of how the measure supports a legitimate
objective for the purposes of international human rights law. This conforms
with the committee's Guidance Note 1,[59]
and the Attorney-General's Department's guidance on the preparation of
statements of compatibility.[60]
1.73
To be capable of justifying a proposed limitation of human rights, a
legitimate objective must address a pressing or substantial concern and not
simply seek an outcome regarded as desirable or convenient. Additionally, a
limitation must be rationally connected to, and a proportionate way to achieve,
its legitimate objective in order to be justifiable in international human
rights law.
Committee comment
1.74
The committee notes that the right to work and the right to
equality and non‑discrimination are engaged and limited by:
-
the requirement not to employ or engage prescribed 'unsuitable
persons'; and
-
the prevention of persons, who in the 5 years prior to
employment or engagement have been subject to prescribed circumstances, from
carrying out activities authorised by a cannabis licence.
1.75
The statement of compatibility has not identified or addressed
these limitations. The committee therefore seeks the advice of the minister as
to:
-
whether the measure is aimed at achieving a legitimate
objective for the purposes of human rights law;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective; and
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective.
Parliamentary Service Amendment (Notification of Decisions and Other
Measures) Determination 2016 [F2016L01649]
|
Purpose
|
Amends the Parliamentary
Service Determination 2013 to remove the requirement for the Commissioner to
endorse a particular certification in relation to the selection process for
SES vacancies, remove the requirement for the Commissioner to be satisfied that
certain requirements have been met before a Secretary may give notice to an
SES employee, and remove the requirement that certain employment decisions
are to be notified in the Public Service Gazette
|
|
Portfolio
|
Prime Minister and Cabinet
|
|
Authorising legislation
|
Parliamentary Service
Act 1999
|
|
Last day to disallow
|
13 February 2017
|
|
Right
|
Privacy (see Appendix 2)
|
Background
1.76
The Parliamentary Service Amendment (Notification of Decisions and Other
Measures) Determination 2016 [F2016L01649] (the 2016 Determination) was made
partly in response to issues identified in relation to the Parliamentary
Service Determination 2013 [F2013L01201] (2013 Determination).
1.77
The 2016 Determination raises similar issues to those recently
considered by the committee in relation to the Australian Public Service
Commissioner's Directions 2016 [F2016L01430] (the 2016 APS Directions).[61]
2013 and 2016 APS Directions
1.78
The committee reported on the Australian Public Service Commissioner's
Directions 2013 [F2013L00448] (the 2013 APS Directions) in its Sixth Report
of 2013;[62]
and on the Australian Public Service Commissioner's Amendment (Notification of
Decisions and Other Measures) Direction 2014 [F2014L01426] (the amendment
direction) in its Eighteenth and Twenty-first Reports of the 44th
Parliament.[63]
1.79
The 2013 APS Directions provided, among other things, for the
notification in the Public Service Gazette (the Gazette) of certain employment
decisions. The committee raised concerns about the compatibility of these
measures, particularly in relation to the publication of decisions to terminate
employment and the grounds for termination, with the right to privacy and the
rights under the Convention on the Rights of Persons with Disabilities (CRPD).
1.80
In response to these concerns, the Australian Public Service
Commissioner (the Commissioner) conducted a review of the 2013 APS Directions.
As a result, the 2013 APS Directions were amended
to remove most of the requirements to publish termination decisions in respect
of Australian Public Service (APS) employees. However, the requirement to
notify termination on the grounds of the breach of the Code of Conduct in the
Gazette was retained.
1.81
The committee subsequently reported on the 2016 APS Directions,[64]
in particular the measure that decisions to terminate the employment of an
ongoing APS employee for breach of the Code of Conduct must be published in the
Gazette.[65]
The committee concluded its examination of this measure in its Report 10 of
2016,[66]
noting that the Commissioner has committed to undertake a review into the
necessity of publicly notifying information about termination decisions on the
grounds of breach of the Code of Conduct, and will notify the committee of the
findings by June 2017.[67]
2013 Determination
1.82
In respect of Parliamentary Service employees, the Parliamentary Service
Determination 2013 [F2013L01201] (2013 Determination) introduced similar
measures to the 2013 APS Directions. The committee reported on the
2013 Determination in its First Report of the 44th
Parliament,[68]
raising substantially the same issues as the committee had raised in respect of
the 2013 APS Directions.
1.83
The President of the Senate and the Speaker of the House of
Representatives provided a response on 13 February 2014, and wrote again to the
committee on this issue on 25 January 2016. The January 2016 letter noted the
outcome of the review of the 2013 APS Directions, and stated the decision to
similarly remove most of the requirements to publish termination decisions in
respect of Parliamentary Service employees, but ensure the continual
notification in the Gazette of the termination of an employee's employment
where they have breached the Code of Conduct.
1.84
The amendments in the 2016 Determination replicate those amendments to
the 2013 APS Directions.
Publishing termination decision for breach of the Code of Conduct
Compatibility of the measure with
the right to privacy
1.85
The amendments by the 2016 Determination to the 2013 Determination are
welcome as it addresses many of the concerns raised by the committee in its First
Report of the 44th Parliament about the limitation on the right
to privacy and the rights of persons with disabilities (in relation to the
notification of the termination of employment on the ground of physical or
mental incapacity).[69]
1.86
However, the 2016 Determination continues the requirement to publish in
the Gazette details of a Parliamentary Service employee when their employment
has been terminated on the grounds of breach of the Code of Conduct. This
engages and limits the right to privacy.
1.87
The statement of compatibility for the 2016 determination states that
the measure is not an arbitrary interference with privacy and that it:
...serves the public interest by enabling Parliamentary Service
departments, APS agencies and other employers to check the employment record of
applicants for employment for any history of serious misconduct. Publishing
these decisions also creates a public record that shows that serious misconduct
is dealt with properly.
1.88
The statement of compatibility goes on to state that the measure is
reasonable, necessary and proportionate with respect to the right to privacy.
1.89
In its Report 10 of 2016, the committee considered the
compatibility of a similar measure under the 2016 APS Directions. It identified
that there are other methods by which an employer could determine whether a
person has been dismissed from the APS for breach of the Code of Conduct,
rather than publishing an employee's personal details in the Gazette,[70]
for example, maintaining a centralised, internal record of dismissed employees,
or to use references to ensure that a previously dismissed APS employee is not
rehired by the APS. It was stated that these measures may be more likely to be
of use in the hiring process than an employer searching past editions of the
Gazette.[71]
1.90
The report in respect of the 2016 APS Directions also noted that it
would be possible to publish information in relation to the termination of
employment for breaches of the Code of Conduct without the need to name the
affected employee, which could serve to maintain public confidence that serious
misconduct is dealt with properly.[72]
1.91
In response to the committee's concerns about the 2016 APS Directions,
the Commissioner has advised the committee that:
The committee raised valid questions about whether the limitation
is a reasonable or proportionate measure in upholding integrity in the APS, and
as such, further investigation into the requirement is warranted. As the
provisions relating to the publication of details of employment termination
decisions were last reviewed in 2014, it is timely to consider the continued
publication of terminations of employment and whether there may be a less
rights restrictive means of achieving the same objective; and
A review will be undertaken into the necessity of publicly
notifying information about termination decisions on the grounds of breach of
the Code of Conduct, and will include appropriate consultation and examination
of evidence regarding the deterrent effects and impact on public confidence in
the good management and integrity of the APS. The committee will be notified of
these findings by June 2017.[73]
Committee comment
1.92
The committee welcomes the amendments by the 2016 Determination
to the 2013 Determination, which address many of the concerns previously raised
by the committee in relation to the right to privacy and rights of persons with
disabilities.
1.93
The committee notes that publishing details of a Parliamentary
Service employee when their employment has been terminated for breach of the
Code of Conduct engages and limits the right to privacy. The committee notes
that it has raised questions in relation a similar measure in the 2016 APS
Directions with the Australian Public Service Commissioner.
1.94
Noting the advice of the Australian Public Service Commissioner
with respect to the Australian Public Service Commissioner's Directions 2016,
the committee seeks advice from the Presiding Officers as to whether the 2016
Determination will also be reviewed in line with the review into the 2016 APS
Directions.
Transport Security Legislation Amendment (Identity Security) Regulation
2016 [F2016L01656]
|
Purpose
|
Amends the Aviation
Transport Security Regulations 2005 and the Maritime Transport and Offshore
Facilities Security Regulations 2003 with respect to the aviation security
identification card and the maritime security identification card schemes
|
|
Portfolio
|
Infrastructure and Regional
Development
|
|
Authorising legislation
|
Aviation Transport
Security Act 2004 and Maritime
Transport and Offshore Facilities Security Act 2003
|
|
Last day to disallow
|
13 February 2017
|
|
Right
|
Presumption of innocence
(see Appendix 2)
|
Strict liability offences
1.95
The Aviation Transport Security Regulations 2005 and the Maritime
Transport and Offshore Facilities Security Regulations 2003 establish the
regulatory frameworks for the aviation security identification card (ASIC) and
the maritime security identification card (MSIC) schemes.
1.96
Subregulation 6.06(5) of Schedule 1, Part 1 to the Transport Security
Legislation Amendment (Identity Security) Regulation 2016 (the regulation)
imposes a strict liability offence of 20 penalty units on an issuing body[74]
in respect of an ASIC program where the issuing body becomes aware of a change
in a specified detail[75]
and the issuing body does not, within 5 working days after becoming aware of
the change, notify the Secretary in writing of the detail as changed.
1.97
An equivalent offence is imposed on an issuing body[76]
by Schedule 2, Part 1, subregulation 6.07Q(5) of the regulation in respect of
an MSIC plan.
1.98
For the purposes of the regulations, an issuing body can be a natural
person.
Compatibility of the measure with
the right to the presumption of innocence
1.99
The right to the presumption of innocence requires that everyone charged
with a criminal offence has the right to be presumed innocent until proven
guilty according to law (see Appendix 2).
1.100
The regulation therefore engages and limits the right to the presumption
of innocence by imposing strict liability offences.
1.101
Strict liability offences limit the right to be presumed innocent until
proven guilty because they allow for the imposition of criminal liability
without the need to prove fault. However, strict liability offences will not
necessarily be inconsistent with the presumption of innocence provided that
they are within reasonable limits which take into account the importance of the
objective being sought and maintain the defendant's right to a defence.
1.102
The statement of compatibility for the regulation does not recognise
that the regulation engages 'any of the applicable rights or freedoms',[77]
and does not address the human rights implications of the strict liability offences.
1.103
Where an instrument provides for a strict liability offence, the
committee's usual expectation is that the statement of compatibility provide an
assessment of whether such limitations on the presumption of innocence are
proposed in pursuit of a legitimate objective, and are a reasonable, necessary
and proportionate means to achieving that objective.
Committee comment
1.104
The committee draws to the attention of the Minister for
Infrastructure and Transport the requirement for the preparation of statements
of compatibility under the Human Rights (Parliamentary Scrutiny) Act 2011,
and the committee's expectations in relation to the preparation of such
statements as set out in its Guidance Note 1.
1.105
The committee also notes that its Guidance Note 2 sets out
information specific to strict liability and absolute liability offences.
1.106
The committee therefore seeks the advice of the Minister for
Infrastructure and Transport as to:
-
whether the measure is aimed at achieving a legitimate
objective for the purposes of human rights law;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective; and
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective.
Advice only
1.107
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.
Commonwealth Electoral Amendment (Protect the Eureka Flag) Bill 2016
|
Purpose
|
Seeks to amend the Commonwealth
Electoral Act 1918 to allow the Australian Electoral Commission to
consider the historical and cultural context of flags and other symbols when
assessing their use in political party logos
|
|
Sponsor
|
Catherine King MP
|
|
Introduced
|
House of Representatives,
21 November 2016
|
|
Rights
|
Freedom of expression;
public affairs (see Appendix 2)
|
Restrictions on political debate
1.108
The Commonwealth Electoral Amendment (Protect the Eureka Flag) Bill 2016
(the bill) introduces a new provision into the Commonwealth Electoral Act
1918 (the Act) to allow any person to write to the Australian
Electoral Commission (AEC) and object to the continued use of a logo of a
registered political party, if that person believes that the use of a flag or
symbol as, or in, the logo is inconsistent with the history or cultural
significance of the flag or symbol.[78]
1.109
If the AEC is satisfied that this use is inconsistent with the history
or cultural significance of the flag or symbol, it is required to uphold the
objection; and notify the registered officer of the party that the party will
be deregistered under section 137 of the Act, should the party fail to meet
certain requirements.[79]
Compatibility of the measure with
the right to freedom of expression and the right to take part in public affairs
1.110
The right to freedom of expression requires the state not to arbitrarily
interfere with freedom of expression, particularly restrictions on political
debate (see Appendix 2). It protects all forms of expression and the means of
their dissemination, including spoken, written and sign language and non-verbal
expression, such as images and objects of art.[80]
This right embraces expression that may be regarded as deeply offensive,
subject to the provisions of article 19(3) and article 20 of the International
Covenant on Civil and Political Rights.[81]
1.111
The right to take part in public affairs applies only to citizens. In
order for this right to be meaningful, other rights such as freedom of
expression, association and assembly must also be respected, given the
importance of free speech and protest in a free and open democracy. This right
is an essential part of a democratic government that is accountable to the
people. It applies to all levels of government, including local government (see
Appendix 2).
1.112
The right to freedom of expression and the right to take part in public
affairs are engaged and limited by this measure, as the proposed amendments
seek to restrict the use of logos by registered political parties, and in so
doing impose restrictions upon non-verbal expression and direct participation
in the conduct of public affairs.
1.113
Measures limiting human rights may be permissible providing certain
criteria are satisfied. To be capable of justifying a limit on human rights,
the measure must address a legitimate objective, be rationally connected to
that objective, and be a proportionate way to achieve that objective.
1.114
The statement of compatibility for the bill recognises that the measure
engages and limits the rights to freedom of opinion and expression and the
right to take part in public affairs.[82]
It is notable that the AEC has existing powers under the Act to uphold an
objection and deregister a party under section 137, for reasons of a second
party using the same, or relevantly similar logo or name, to a registered
political party.[83]
1.115
The stated objective of the measure is to protect the rights and
reputations of others, as their symbols will not be aligned with inappropriate
causes.[84]
This appears to be a legitimate objective for the purposes of international
human rights law. It also appears that there is a rational connection between
the limitation and the objective, as the measure is likely to be effective to
achieve the stated objective.
1.116
In relation to whether or not the limitation is proportionate to the
objective sought to be achieved, in respect of the right to freedom of
expression, the statement of compatibility provides:
[t]he Bill is reasonable as it seeks only to limit
communications in regards to official political party logos registered with the
[AEC]. It would not impact upon communications in any broader context or
situation.[85]
1.117
In relation to whether or not the limitation is proportionate to the
objective sought to be achieved in respect of the right to take part in public
affairs, the statement of compatibility provides:
[t]he Bill takes the least restrictive approach in any
possible limitation as it does not infringe upon a party's right to participate
in elections or the images they use generally but instead gives the [AEC] the
ability to consider whether a party's chosen symbol is in fact representative
of that party's ideals, prohibiting the use of that symbol only if it is
culturally or historically inappropriate.[86]
1.118
The statement of compatibility also notes that the bill may in fact
positively contribute to the right to take part in public affairs by ensuring
that logo symbols are culturally and historically appropriate.[87]
1.119
In this particular context, and as the application of the measure is
restricted insofar as it reflects the AEC's existing powers and is limited to
the use of logos, the limitations on the right to freedom of expression and
the right to take part in public affairs are likely to be proportionate to the
stated objective.
Committee comment
1.120
The committee notes the limitations on the right to freedom of
expression and the right to take part in public affairs, and the explanation
provided in the statement of compatibility. The committee brings the matter to
the attention of the Parliament for information.
Proceeds of Crime Amendment (Approved Examiners and Other Measures)
Regulation 2016 [F2016L01617]
|
Purpose
|
This regulation amends the
Proceeds of Crime Regulations 2002 to reflect changes to the process for
appointment of approved proceeds of crime examiners, update references to
state and territory proceeds of crime-related orders, and increase the rate
of remuneration and the annual management fee for the Official Trustee.
|
|
Portfolio
|
Attorney-General
|
|
Authorising legislation
|
Proceeds of Crime Act
2002
|
|
Last day to disallow
|
13 February 2017
|
|
Rights
|
Fair trial; fair hearing
(see Appendix 2)
|
Prescription of state and territory 'corresponding laws' for the purposes
of the Proceeds of Crime Act 2002
1.121
The Proceeds of Crime Amendment (Approved Examiners and Other Measures)
Regulation 2016 [F2016L01617] (the regulation) amends the Proceeds of Crime Regulations
2002 (POC regulations) in response to changes to the Proceeds of Crime Act
2002 (POC Act) made by the Crimes Legislation Amendment (Powers,
Offences and Other Measures) Act 2015 and changes to corresponding state
and territory legislation. In particular, the regulation specifies certain
orders under the Criminal Property Forfeiture Act (NT) and the Confiscation
Act (Vic) to be 'corresponding laws' for the purposes of the POC Act.
1.122
Under the POC Act various actions can be taken in relation to the restraint,
freezing or forfeiture of property which may have been obtained as a result, or
used in the commission, of specified offences, including a 'serious offence'.
The POC Act and regulations also enable orders made under state and territory
proceeds of crime schemes to be recognised and enforced under the POC Act by
providing that prescribed state and territory laws are 'corresponding laws'.
1.123
The regulation therefore has the effect of broadening the circumstances
in which a person's assets may be subject to being frozen, restrained or
forfeited under the POC Act.
Compatibility of the measure with
the right to a fair trial and fair hearing
1.124
The statement of compatibility acknowledges that the POC Act scheme
engages the right to a fair trial and fair hearing,[88]
but notes that as the proceedings under the POC Act are civil proceedings, the
POC Act scheme engages the fair hearing rights provided for in article 14(1) of
the International Covenant on Civil and Political Rights (ICCPR), but not the
guarantees conferred by articles 14(2) to (7).
1.125
The committee previously examined the POC Act, most recently in its
consideration of the Law Enforcement Legislation Amendment (State Bodies and
Other Measures) Bill 2016 (the bill).[89]
The committee has previously raised concerns about the right to a fair hearing
and noted that asset confiscation may be considered criminal for the purposes
of international human rights law, and in particular the right to a fair trial,
even if the penalty is classified as civil or administrative under domestic
law.[90]
The POC Act was legislated prior to the establishment of the committee, and for
that reason, the scheme has never been required to be subject to a foundational
human rights compatibility assessment in accordance with the terms of the Human
Rights (Parliamentary Scrutiny) Act 2011.
1.126
As the committee has previously noted, 'it is clear that the POC
Act provides law enforcement agencies [with] important and necessary tools in
the fight against crime in Australia'.[91]
If forfeiture orders are assessed as involving the determination of a criminal
charge, this does not suggest that such measures cannot be taken; rather, it
requires that such measures are demonstrated to be consistent with the criminal
process rights under articles 14 and 15 of the ICCPR.
1.127
The committee has previously recommended that the Minister for Justice
undertake an assessment of the POC Act to determine its compatibility with the
right to a fair trial and fair hearing in light of the committee's concerns.[92]
The committee came to this conclusion on the basis that a full human rights
assessment of proposed measures which extend or amend existing legislation
requires an assessment of how such measures interact with the existing
legislation. Without this assessment of the POC Act, the committee is faced
with the difficult task of assessing the human rights compatibility of an
amendment to the POC regulations without the benefit of a foundational human
rights assessment of the POC Act from the Minister for Justice.
1.128
The statement of compatibility discusses various safeguards under the
POC Act 'that ensure that a person's procedural rights are protected with
respect to an examination and these safeguards are not affected by this
Regulation'.
1.129
The statement of compatibility concludes that the regulation does not
change either the scope or safeguards attached to fair hearing rights,
including the privilege against self‑incrimination, and on this basis,
does not limit or promote human rights with respect to a fair hearing. However,
and as noted above, the committee has previously raised concerns regarding the
sufficiency of existing POC Act safeguards.
1.130
The committee previously recommended that the Minister of Justice
undertake a detailed assessment of the POC Act to determine its compatibility
with the right to a fair trial and right to a fair hearing. In his recent
response to the committee in respect of the bill, the minister stated he did
not consider it necessary to conduct an assessment of the POC Act to determine
its compatibility with the right to a fair trial and fair hearing as
legislation enacted prior to the enactment of the Human Rights
(Parliamentary Scrutiny) Act 2011 is not required to be subject to a human
rights compatibility assessment, and the government continually reviews the POC
Act as it is amended [see concluding entry for the Law Enforcement Legislation
Amendment (State Bodies and Other Measures) Bill 2016 at page 35 of this
report].
Committee comment
1.131
The measure engages and limits the right to a fair trial and fair
hearing.
1.132
The committee notes that the regulation has the effect of
broadening the circumstances in which a person's assets may be subject to being
frozen, restrained or forfeited under the POC Act. The committee reiterates its
earlier comments that the proceeds of crime legislation provides law
enforcement agencies with important and necessary tools in the fight against
crime. However, it also raises concerns regarding the right to a fair hearing
and the right to a fair trial, as although a penalty is classified as civil or
administrative under domestic law, its content may nevertheless be considered
'criminal' under international human rights law. The committee reiterates its
previous view that the POC Act would benefit from a full review of the
human rights compatibility of the legislation.
Bills not raising human rights concerns
1.133
Of the bills introduced into the Parliament between 28 November and
1 December 2016, 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):
-
Agriculture and Water Resources Legislation Amendment Bill 2016;
-
Airports Amendment Bill 2016;
-
Air Services Amendment Bill 2016;
-
Australian Meat and Live-stock Industry (Amendment) (Tagging
Live-stock) Bill 2016;
-
Building and Construction Industry (Improving Productivity)
Amendment Bill 2017;
-
Charter of Budget Honesty Amendment (Regional Australia
Statements) Bill 2016;
-
Commonwealth Electoral Amendment (Donation Reform and
Transparency) Bill 2016;
-
Competition and Consumer Amendment (Misuse of Market Power) Bill
2016;
-
Customs and Other Legislation Amendment Bill 2016;
-
Customs Tariff Amendment Bill 2016;
-
Diverted Profits Tax Bill 2017;
-
Enhancing Online Safety for Children Amendment Bill 2017;
-
Excise Levies Legislation Amendment (Honey) Bill 2016;
-
Fair Work Amendment (Pay Protection) Bill 2016;
-
Farm Household Support Amendment Bill 2017;
-
Fisheries Legislation Amendment (Representation) Bill 2017;
-
Health Insurance Amendment (National Rural Health Commissioner)
Bill 2017;
-
Independent Parliamentary Expenses Authority (Consequential
Amendments) Bill 2017;
-
Independent Parliamentary Expenses Authority Bill 2017;
-
Income Tax Rates Amendment (Working Holiday Maker Reform) Bill
2016 (No. 2);
-
Parliamentary Entitlements Legislation Amendment Bill 2017;
-
Passenger Movement Charge Amendment Bill (No. 2) 2016;
-
Statute Update (ACT Self-Government (Consequential Provisions)
Regulations) Bill 2016;
-
Superannuation (Departing Australia Superannuation Payments Tax)
Amendment Bill (No. 2) 2016;
-
Superannuation Amendment (PSSAP Membership) Bill 2016;
-
Transport Security Legislation Amendment Bill 2016;
-
Treasury Laws Amendment (Bourke Street Fund) Bill 2017; and
-
Treasury Laws Amendment (Combating Multinational Tax Avoidance)
Bill 2017.
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