Concluded matters
2.1
This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
2.2
Correspondence relating to these matters is included at Appendix 3.
Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016
| Purpose |
Establishes a scheme to
permit the continuing detention of 'high risk terrorist offenders' at the
conclusion of their custodial sentence |
| Portfolio |
Attorney-General |
| Introduced |
Senate, 15 September 2016 |
| Rights |
Liberty; freedom from
arbitrary detention; right to humane treatment in detention; prohibition on
retrospective criminal laws (see Appendix 2) |
| Previous reports |
7 of 2016; 8 of 2016 |
| Status |
Concluded |
Background
2.3
The committee initially reported on the Criminal Code Amendment (High
Risk Terrorist Offenders) Bill 2016 (the bill) in its Report 7 of 2016,
and requested further information from the Attorney-General in relation to the
human rights issues identified in that report.[1]
2.4
In order to conclude its assessment of the bill while it
is still before the Parliament, the committee requested that the
Attorney-General's response be provided by 27 October 2016. A response
was not received by this date.
2.5
In the absence of this response, the committee again reported on the
bill in its Report 8 of 2016 and reiterated its previous request for
further information as well as seeking an additional response from the
Attorney-General as outlined below.[2]
2.6
The committee requested that the Attorney-General's
outstanding response as well as the additional response be provided by 18
November 2016. A response was still not received by this date.
2.7
However, the Attorney General's response to the committee's inquiries
was received on 28 November 2016. The response is discussed below and is
reproduced in full at Appendix 3.
2.8
The bill then passed both Houses of Parliament on 1 December 2016 and
received Royal Assent on 7 December 2016.
Continuing detention of persons currently imprisoned
2.9
The bill proposes to allow the Attorney-General (or a legal
representative) to apply to the Supreme Court of a state or territory for an
order providing for the continued detention of individuals who are imprisoned
for particular offences under the Criminal Code Act 1995 (Criminal
Code).[3]
The Attorney-General may also apply for an interim detention order pending the
hearing of the application for a continuing detention order.[4]
The effect of these orders is that a person may be detained in prison after the
end of their custodial sentence.[5]
2.10
The particular offences in respect of which a person may be subject to
continuing detention will include:
-
international terrorist activities using explosive or lethal
devices;[6]
-
treason;[7]
and
-
a 'serious offence' under Part 5.3,[8] or an offence under Part
5.5,[9] of the
Criminal Code.
2.11
Individuals who have committed crimes under these sections of the
Criminal Code are referred to in the bill as 'terrorist offenders'.
2.12
The court is empowered to make a continuing detention order where:
- an application has been made by the Attorney-General or their legal
representative for the continuing detention of a 'terrorist offender';
-
after having regard to certain matters,[10]
the court is satisfied to a high degree of probability, on the basis of admissible
evidence, that the offender poses an unacceptable risk of committing a serious
Part 5.3 offence if the offender is released into the community; and
-
the court is satisfied that there is no other less restrictive measure
that would be effective in preventing the unacceptable risk.[11]
2.13
The Attorney-General bears the onus of proof in relation to the above
criteria.[12]
The standard of proof to be applied is the civil standard of the balance of
probabilities.[13]
2.14
While each detention order is limited to a period of up to three years,
further applications may be made and there is no limit on the number of
applications.[14]
This means that a person's detention in prison could be continued for an
extended period of time.
2.15
This bill provides that a person detained under a continuing detention
order must not be held in the same area or unit of the prison as those
prisoners who are serving criminal sentences, unless it is necessary for
certain matters set out in proposed section 105A.4(2).[15]
2.16
The measure allows ongoing preventative detention of individuals who
will have completed their custodial sentence. The previous analysis observed
that the use of preventative detention, that is, detention of individuals that
does not arise from criminal conviction but is imposed on the basis of future
risk of offending, is a serious measure for a state to take.
2.17
While noting that the measure engages and limits a range of human
rights, the focus of the initial human rights assessment was on the right to
liberty, which includes the right to be free from arbitrary detention. Forms of
detention that do not arise from a criminal conviction are permissible under
international law, for example, the institutionalised care of persons suffering
from mental illness. However, the use of such detention must be carefully
controlled: it must reasonable, necessary and proportionate in all the
circumstances to avoid being arbitrary, and thereby unlawful under article 9 of
the International Covenant on Civil and Political Rights (ICCPR).
2.18
The initial human rights analysis noted that post-sentence preventative
detention of persons who have been convicted of a criminal offence may be
permissible under international human rights law in carefully circumscribed
circumstances.[16]
The United Nations Human Rights Committee (UNHRC) has stated that:
...to avoid arbitrariness, the additional
detention must be justified by compelling reasons arising from the gravity of
the crimes committed and the likelihood of the detainee's committing similar
crimes in the future. States should only use such detention as a last resort
and regular periodic reviews by an independent body must be assured to decide
whether continued detention is justified. State parties must exercise caution
and provide appropriate guarantees in evaluating future dangers. The conditions
in such detention must be distinct from the conditions for convicted prisoners
serving a punitive sentence and must be aimed at the detainee's rehabilitation
and reintegration into society.[17]
2.19
The initial analysis stated that the question therefore is
whether the proposed preventative detention regime is necessary and
proportionate, and not arbitrary within the meaning of article 9 of the ICCPR,
bearing in mind the specific guidance in relation to post-sentence preventative
detention.
2.20
For the purposes of this initial analysis, it was accepted that
the proposed continuing detention order regime pursues the legitimate objective
of 'protecting the community from the risk of terrorist attacks',[18]
and the measure is rationally connected to this stated objective in the sense
that the individual subject to an interim or continuing detention order will be
incapacitated while imprisoned. However, questions arose as to whether the
regime contains sufficient safeguards to ensure that preventative detention is
necessary and proportionate to this objective.
2.21
The proposed continuing detention order regime shares significant
features with the current continuing detention regimes that exist in New South
Wales (NSW),[19]
and Queensland.[20]
These state regimes apply in respect of sex offenders and/or 'high risk violent
offenders' and have the following elements:
-
the Attorney-General or the state may apply to the Supreme Court
for a continuing detention order for particular classes of offenders;[21]
-
the application must be accompanied by relevant evidence;[22]
-
the effect of the continuing detention order is that an offender
is detained in prison after having served their custodial sentence in relation
to the offence;[23]
-
the court may make a continuing detention order if it is
satisfied to a 'high degree of probability' that the offender poses an
'unacceptable risk' of committing particular offences;[24]
-
in determining whether to make the continuing detention order,
the court must have regard to a list of factors;[25]
-
the court must consider whether a non-custodial supervision order
would be adequate to address the risk;[26]
-
the term of continuing detention orders can be made for extended
periods of time;[27]
and
-
the availability of periodic review mechanisms.[28]
2.22
As noted in the previous analysis, these continuing detention schemes
were the subject of individual complaints to the UNHRC in Fardon v Australia,[29]
and Tillman v Australia.[30]
In Fardon v Australia, the author of the complaint had been convicted of
sex offences in 1989 and sentenced to 14 years' imprisonment in Queensland. At
the end of his sentence, the complainant was the subject of continuing
detention from June 2003 to December 2006. In Tillman v Australia the
complainant was convicted of sex offences in 1998 and sentenced to 10 years'
imprisonment in NSW. At the end of his sentence, the complainant was the
subject of a series of interim detention orders, and finally a continuing
detention order of one year (effectively for a period from May 2007 until July
2008).
2.23
The UNHRC found that the continued detention in both cases was arbitrary
in violation of article 9 of the ICCPR. In summary, the UNHRC identified the
following as relevant to reaching these determinations:
-
as the complainants remained incarcerated under the same prison
regime the continued detention effectively amounted to a fresh term of
imprisonment or new sentence. This was not permissible if a person has not been
convicted of a new offence; and is contrary to the prohibition against
retrospective criminal laws (article 15 of the ICCPR), particularly as in both
instances the enabling legislation was enacted after the complainants were
first convicted;
-
the procedures for subjecting the complainants to continuing
detention were civil in character, despite an effective penal sentence being
imposed. The procedures therefore fell short of the minimum guarantees in
criminal proceedings prescribed in article 14 of the ICCPR;
-
the continued detention of offenders on the basis of future
feared or predicted dangerousness was 'inherently problematic'. The application
process for continuing detention orders required the court to 'make a finding
of fact on the suspected future behaviour of a past offender which may or may
not materialise.' The complainants' predicted future offending was based on
past conduct, for which they had already served their sentences; and
-
the state should have demonstrated that the complainant could not
have been rehabilitated by means other than detention which were less rights
restrictive.
2.24
The UNHRC's findings and the Australian government's formal response
were not referred to in the statement of compatibility.
2.25
The previous analysis stated that a number of the concerns about the NSW
and Queensland schemes are relevant to an assessment of the current continuing
detention proposal, including:
-
individuals currently incarcerated may be subject to continuing
detention contrary to the prohibition on retrospective criminal law;
-
the civil standard of proof applies to proceedings (that is, the
standard of the balance of probabilities rather than the criminal standard of
beyond reasonable doubt);[31]
and
-
the difficulties arising from the court being asked to make a
finding of fact in relation to the risk of future behaviour.
2.26
However, the analysis noted two points of difference to the NSW and
Queensland schemes.
2.27
First, the bill provides that a person detained under a continuing
detention order must not be held in the same area or unit of the prison as
those prisoners who are serving criminal sentences, except in certain
circumstances. This safeguard appears to respond to one of the bases upon which
the state-level regimes were incompatible with article 9, namely, that the
applicants were incarcerated within the same prison regime, and therefore their
preventative detention in effect constituted a fresh term of imprisonment after
they had served their sentence. However, the bill nonetheless does provide that
persons subject to continuing detention orders are to be detained in prison and
that there is a series of circumstances in which they may be detained in the
same area or unit as those prisoners serving criminal sentences.
2.28
Second, the bill requires that a court may only make a continuing detention
order if satisfied that there is 'no other less restrictive measure that would
be effective in preventing the unacceptable risk'.[32]
Accordingly, the bill appears to incorporate some aspects of the test of
proportionality under international human rights law.[33]
2.29
The initial analysis noted that this aspect of the bill appears to be a
safeguard against the use of a continuing detention order in circumstances
where an alternative to detention is available. However, it is not apparent
from the bill how this safeguard would operate in practice including whether
and how the court would be able to assess or provide for less restrictive
alternatives. Under the NSW and Queensland regimes, if satisfied that a
prisoner is a serious danger to the community (in Queensland) or is a high risk
sex offender or high risk violent offender (in NSW), it is open to a court to
make either a continuing detention order or a supervision order.[34]
By contrast, the bill does not empower the court to make an order other than a
continuing detention order.[35]
2.30
Further, the previous analysis noted that the proposed legislative test
requires consideration of whether the continuing detention order is the least
rights restrictive only at the particular point of time at which it is being
contemplated by the court, at or towards the end of the sentence. It is likely
that interventions might be possible earlier in respect of a particular
offender, such as effective de‑radicalisation and rehabilitation
programs. Including a requirement to consider this type of intervention, both
prior to and after making any continuing detention order, would support an
assessment of the proposed regime as proportionate, particularly that
post-sentence detention is provided as a measure of last resort and is aimed at
the detainee's rehabilitation and reintegration into society.
2.31
Finally, in the proposed scheme the assessment of 'unacceptable risk' is
crucial in determining whether the court is empowered to make a continuing
detention order. As the risk being assessed relates to future conduct there are
inherent uncertainties in what the court is being asked to determine, akin to
the concerns in Fardon v Australia and Tillman v Australia. The
bill provides for the court to obtain expert evidence in reaching a
determination in relation to risk, though given the nature of the task inherent
uncertainties with risk assessments remain.[36]
2.32
Other jurisdictions have sought to minimise these uncertainties by
recommending that a 'Risk Management Monitor' be established to undertake a
range of functions including developing best practices for risk assessments;
developing guidelines and standards; validating new assessment tools; providing
for procedures by which experts become accredited for assessing risk; providing
education and training in the assessment of risk; and developing risk
management plans.[37]
Such a body is intended to act as a safeguard in relation to the quality of
risk assessments.
Committee's requests for further information from the Attorney-General
2.33
The committee noted that the bill contains certain safeguards which may
support an assessment that the regime of continuing detention orders is
necessary, reasonable and proportionate; however, its analysis raised questions
regarding the adequacy of these safeguards, particularly in light of the
UNHRC's determinations in relation to the state-level regimes.
2.34
Accordingly, the committee sought the advice of the Attorney-General as
to the extent to which the proposed scheme addresses the specific concerns
raised by the UNHRC as set out at [2.23] in respect of existing post-sentencing
preventative detention regimes.
2.35
The committee further sought the advice of the Attorney-General as to
how the court's consideration of less restrictive measures pursuant to proposed
section 105A.7 is intended to operate in practice, including:
-
what types of less restrictive measures may be considered by the
court;
-
what options might be available to the court to assess or make
orders in relation to the provision of less restrictive alternatives; and
-
whether the Attorney-General will consider whether there are less
restrictive alternatives in deciding whether to make an application for a
continuing detention order.
2.36
The committee also sought the advice of the Attorney-General as to the
feasibility of the following recommendations:
-
to address concerns regarding the application of the civil
standard of proof to proceedings, that the bill be amended to provide for a
criminal standard of proof (as currently is the case under the Dangerous
Sexual Offenders Act 2006 (WA), section 40);
-
to assist in addressing concerns regarding assessments of future
'unacceptable risk', that a Risk Management Monitor be established including
the functions outlined at [2.32];
-
to assist in addressing concerns regarding the application of
retrospective criminal laws (article 15 of the ICCPR), that the bill be amended
to only apply to new offenders; and
-
that the bill be amended to ensure the availability of
rehabilitation programs to offenders that may be subject to the continuing
detention order regime.
2.37
The committee did not receive a response from the Attorney-General within
the requested timeframe regarding the human rights issues identified in the
initial human rights assessment of the bill.
2.38
The committee therefore restated its request for advice from the
Attorney‑General in relation to the proposed scheme, including the
specific matters set out in its previous request at [2.34], observing the concern
that it was not possible to conclude that the proposed regime is compatible
with the right to liberty.
2.39
The committee also sought the further advice of the Attorney-General in
relation to the following possible amendments which may assist with the human
rights compatibility of the scheme:
-
to address concerns about whether the court would be empowered to
make orders in relation to the provision of less restrictive alternatives, that
the bill be amended to provide for alternative orders;
-
to assist with concerns about whether continuing detention would
be the least rights restrictive in an individual case, that the bill be amended
to provide that, prior to making an application for a continuing detention
order, the Attorney-General should be satisfied that there is no other less
restrictive measure to address any risk;
-
to address concerns regarding the application of the civil
standard of proof to proceedings, that the bill be amended to provide for a
criminal standard of proof (as currently is the case under the Dangerous
Sexual Offenders Act 2006 (WA), section 40);
-
to assist in addressing concerns regarding assessments of future
'unacceptable risk', that a Risk Management Monitor be established including
the functions outlined at [2.32];
-
to assist in addressing concerns regarding the application of
retrospective criminal laws (article 15 of the ICCPR), that the bill be amended
to only apply to new offenders; and
-
that the bill be amended to ensure the availability of
rehabilitation programs to offenders that may be subject to the continuing
detention order regime.
2.40
The previous legal analysis raised serious concerns in relation to the
proposed continuing detention regime in the context of its assessment against
international human rights law.
2.41
The requests by the committee were directed at being able to properly
analyse the human rights compatibility of the proposed scheme. This included
requests for advice in relation to particular recommendations which may have
assisted with the human rights compatibility of the scheme. In the absence of
the further advice of the Attorney-General it appeared that the continuing
detention regime, in its current form, was likely to be incompatible with the
right to liberty (including the right not to be subject to arbitrary
detention).
Attorney-General's response
2.42
In his response dated 28 November 2016, the Attorney General states that
he intends to move a number of amendments to the bill to implement certain
recommendations from the Parliamentary Joint Committee on Intelligence and
Security (PJCIS):
- an
application for a continuing detention order may be commenced up to 12 months
(rather than 6 months) prior to the expiry of a terrorist offender's sentence
- the
scope of the offences to which the scheme applies be limited by removing
offences against Subdivision B of Division 80 (treason) and offences against
subsections 119.7(2) and (3) of the Criminal Code (publishing recruitment
advertisements)
- the
Attorney-General must apply to the Supreme Court for a review of a continuing
detention order (at the end of the period of 12 months after the order began to
be in force, or 12 months after the most recent review ended) and that failure
to do so will mean that the continuing detention order will cease to be in
force
- the
Attorney-General must undertake reasonable inquiries to ascertain any facts
known to a Commonwealth law enforcement or intelligence or security officer that
would reasonably be regarded as supporting a finding that a continuing
detention order should not be made (or is no longer required)
- the
application for a continuing detention order, or review of a continuing
detention order, must include a copy of any material in the possession of the
Attorney-General or any statements of facts that the Attorney-General is aware
of that would reasonably be regarded as supporting a finding that an order
should not be made
- on
receiving an application for an interim detention order the Court must hold a
hearing where the Court must be satisfied that there are reasonable grounds for
considering that a continuing detention order will be made in relation to the
terrorist offender
- each
party to the proceeding may bring forward their own preferred relevant expert,
or experts, and the Court will then determine the admissibility of each
expert's evidence
- any
responses to questions or information given by the terrorist offender to an
expert during an assessment will not be admissible in evidence against the
offender in criminal and other civil proceedings
- the
criminal history of the offender that the Court must have regard to in making a
continuing detention order is confined to convictions for those offences
referred to in paragraph 105A.3(1)(a) of the Bill
- if the
offender, due to circumstances beyond their control, is unable to obtain legal
representation, the Court may stay the proceeding and/or require the
Commonwealth to bear all or part of the reasonable cost of the offender's legal
representation in the proceeding
- when
sentencing an offender convicted under any of the provisions of the Criminal
Code to which the continuing detention scheme applies, the sentencing court
must warn the offender that an application for continuing detention could be
considered
- the
continuing detention scheme be subject to a sunset period of 10 years after the
day the Bill receives Royal Assent, and
- a
control order can be applied for and obtained while an individual is in prison,
but the controls imposed by that order would not apply until the person is
released.
To enhance oversight of the continuing detention scheme, the
amendments also provide that:
- the Independent
National Security Legislation Monitor Act 2010 be amended to require the
Independent National Security Legislation Monitor (INSLM) to complete a review
of the continuing detention scheme five years after the day the Bill receives
Royal Assent, and
- the Intelligence
Services Act 2001 be amended to require that the Committee review the
continuing detention scheme six years after the day the Bill receives Royal
Assent.[38]
2.43
These amendments, which introduce certain additional safeguards, will
improve the legislation. Some of these additional safeguards address aspects of
whether a continuing detention order is necessary, reasonable and proportionate
in an individual case. The introduction of additional oversight mechanisms and
a ten year sunset clause may also assist to improve the proportionality of the
regime. This means that the committee will examine any proposed extension to
the regime in ten years' time.
2.44
However, many of the concerns identified in relation to the human rights
compatibility of the original bill remain in relation to the amended bill.
These are set out below.
2.45
The previous human rights analysis noted that the bill requires that a
court may only make a continuing detention order if satisfied that there is 'no
other less restrictive measure that would be effective in preventing the
unacceptable risk'.[39]
This aspect of the bill departs from the regimes in NSW and Queensland that
have been found by the UNHRC to be incompatible with the right to liberty, and
the bill appears to incorporate some aspects of the test of proportionality
under international human rights law.[40]
The Attorney-General's response refers to this requirement as assisting to
ensure the regime is the least restrictive of human rights. However, the
previous analysis identified concerns about how this requirement will work in
practice and its adequacy as a safeguard. In response to the committee's
request as to what types of less restrictive measures may be considered by the
court, the Attorney-General points to control orders. However, as explained in
the Attorney-General's response, the court will not be able to make a control
order in the alternative:
The Court that hears an application for a continuing
detention order will not be able to make a control order in the alternative.
This is due to the fact that currently control orders are issued by federal
courts, while applications for a continuing detention order as proposed by the
Bill are made to the Supreme Court of a State or Territory. There are also
different applicants under each regime, and there are also different threshold
requirements which must be met under the respective regimes.[41]
2.46
This gives rise to the concern that, even as amended, the proposed
legislation does not enable the court to fully assess or make orders in
relation to the provision of less restrictive alternatives. The
Attorney-General's response appears to contemplate that this issue might be
addressed in the future:
[The] Independent National Security Legislation Monitor and
PJCIS will conduct reviews into the control order regime by 7 September 2017
and 7 March 2018 respectively. Given the detailed and complex policy and
practical issues that would need to be explored about the interaction between
the proposed post-sentence preventative detention scheme and the control order
regime, I suggested to the PJCIS during its inquiry into the Bill that it may
be better to defer a detailed consideration of how the control order scheme and
the proposed scheme under the Bill interact with each other until those reviews
occur. The PJCIS agreed.[42]
2.47
As this issue has not been resolved, the bill currently does not appear
to ensure that continuing detention is the least rights restrictive approach in
each individual case.
2.48
The committee also requested a range of further information from the
Attorney-General in relation to the proposed regime. In relation to the
standard of proof to be applied in relation to proceedings, the
Attorney-General explains the standard as follows:
Civil standard of proof
The 'high degree of probability' standard is a statutory
standard which indicates something beyond the traditional civil standard of
proof of more probable than not. The existence of the risk of the offender
committing a further serious offence must be proved to a higher degree than the
normal civil standard of proof, though not to the criminal standard of beyond
reasonable doubt. This standard is modelled on the standard used by most States
and Territories that have post-sentence preventative detention schemes.[43]
2.49
However, in the case of the NSW and Queensland schemes referred to
above, the fact that those schemes contained a civil rather than criminal
standard of proof was one of the reasons leading the UNHRC to finding the
schemes to be incompatible with the right to be free from arbitrary detention.
The Attorney‑General's response does not explain, as requested, why the
criminal standard of beyond a reasonable doubt as is provided under the Dangerous
Sexual Offenders Act 2006 (WA) section 40 would not be feasible.
2.50
One of the factors identified in the previous human rights analysis of the
bill was the inherent difficulties arising from the court being asked to make a
finding of 'unacceptable risk' in relation to future behaviour. In relation to
the feasibility of establishing a Risk Management Monitor to assist in
addressing such concerns, the Attorney-General advises that:
Risk Management Monitor
My Department has convened an Implementation Working Group
with legal, corrections and law enforcement representatives from each
jurisdiction to progress all outstanding issues relating to implementation of
the proposed post sentence preventative detention scheme.
The implementation Working Group has developed an
implementation plan in response to PJCIS Recommendation 22. The plan sets the
process and timeframes for the development of the risk assessment tool and
ongoing validation. It notes that work will be undertaken in consultation with
correctional services, law enforcement and intelligence agencies, and
international partners, and ongoing validation will need to be undertaken.
The Working Group may consider whether a Risk Management
Monitor or similar will undertake the functions set out at paragraph 1.77 of
the Committee's Report 7 of 2016.[44]
2.51
Consideration of these issues going forward is to be welcomed and may
improve the scheme. It would, however, be preferable to incorporate any such
safeguards from the outset. A significant factor upon which the UNHRC
considered that the regimes in NSW and Queensland were incompatible with the
right to be free from arbitrary detention was that the continued detention of
offenders on the basis of future feared or predicted dangerousness was
'inherently problematic' and required the court to 'make a finding of fact on
the suspected future behaviour of a past offender which may or may not
materialise.' This was notwithstanding that courts under these regimes have
access to expert evidence as will be the case under the proposed regime.
2.52
Further, the previous analysis noted that it is likely that
interventions might be possible earlier in respect of a particular offender,
such as effective de‑radicalisation and rehabilitation programs. In
relation to the availability of rehabilitation programs and consideration of
interventions, the Attorney-General's response states:
Access to rehabilitation programs is an important part of the
scheme. When making a continuing detention order, paragraph 105A.8(e) requires
the Court to have regard to any treatment or rehabilitation programs in which
the offender has had an opportunity to participate and the level of the offender's
participation in any such programs. At present, Corrections Victoria and
Corrections New South Wales provide inmates with access to prison based
programs which aim to disengage individuals from advocating or using violence
to further their goals or beliefs. Jurisdictions other than Victoria and New
South Wales have a range of general rehabilitation programs, which are not
specifically tailored to violent extremist offenders.
The Commonwealth will continue to consider the availability
of such programs with states and territories through the Implementation Working
Group.[45]
2.53
Section 105A.8(e) contemplates that the court is to have regard to any
treatment or rehabilitation programs in which the offender has had an
opportunity to participate and the level of the offender's participation in any
such programs. However, what the proposed legislation does not require the
court to consider is whether such interventions were made available and whether
they were adequate. Including a requirement to consider the availability and
adequacy of this type of intervention, both prior to and after making any
continuing detention order, would support an assessment of the proposed regime
as proportionate as it would better ensure post-sentence detention is provided
as a measure of last resort and is aimed at the detainee's rehabilitation and
reintegration into society. The Attorney‑General's response provides some
information in relation to current programs that are available in NSW and
Victoria as well as noting that the government will continue to consider the
availability of such programs. The sufficiency of such intervention programs
going forward would be an important factor in ensuring the proposed regime is
one of last resort in practice.
2.54
In relation to whether the Attorney-General will consider whether there
are less restrictive alternatives in deciding whether to make an application
for a continuing detention order, the Attorney-General's response provides
that:
Attorney-General's consideration of less restrictive
measures
Before the Attorney-General initiated an application for a
continuing detention order in relation to a terrorist offender he or she would
need to carefully consider all of the information before them. Consideration
would also include whether there is a reasonable prospect of success, which
would require the Attorney-General to consider whether the risk to the
community could be appropriately managed through less restrictive means such as
a control order.[46]
2.55
While the Attorney-General's response makes clear that in deciding
whether to make an application for a continuing detention order the Attorney‑General
may consider whether the application has reasonable prospects of success and
whether the risk to the community could be appropriately managed through less
restrictive means such as a control order, this is not required under the
proposed legislation. A requirement for the Attorney-General to consider
whether there are less rights restrictive means of managing risk prior to
making an application would assist to ensure that the proposed regime imposes a
proportionate limit on the right to liberty.
2.56
In summary, the Attorney-General's response has pointed to some
additional safeguards that will be incorporated into the bill for the proposed
continuing detention scheme, which are to be welcomed. However, it appears
that, notwithstanding these amendments, the continuing detention regime remains
likely to be assessed as incompatible with the right to liberty (including the
right not to be subject to arbitrary detention).
Committee response
2.57
The committee has concluded its examination of this issue.
2.58
The proposed continuing detention scheme engages and limits the right
to liberty.
2.59
The UNHRC has previously found that substantially similar existing
preventative detention schemes in Queensland and NSW were incompatible with the
right to be free from arbitrary detention and lacked sufficient safeguards.
2.60
The Attorney-General's response has pointed to some additional
safeguards that will be incorporated into the bill for the proposed continuing
detention scheme.
2.61
These additional safeguards may address some aspects of whether a
continuing detention order is necessary, reasonable and proportionate in an
individual case.
2.62
However, the preceding legal analysis concludes that the continuing
detention regime, as amended, is likely to be incompatible with the right to
liberty under international human rights law.
2.63
The amendments to the proposed scheme introduce a 10 year sunset
period. This means that the committee will have the opportunity to examine any
proposed extension to the scheme when it comes before it against the principles
articulated above.
2.64
Noting the human rights concerns raised by the preceding legal
analysis, the committee draws the human rights implications of the bill to the
attention of the Parliament.
Fairer Paid Parental Leave Bill 2016
| Purpose |
Proposes to amend the Paid
Parental Leave Act 2010 to provide that primary carers of newborn
children will no longer receive both employer-provided primary carer leave
payments and the full amount of parental leave pay under the government‑provided
paid parental leave (PPL) scheme; and remove the requirement for employers to
provide paid parental leave to eligible employees |
| Portfolio |
Social Services |
| Introduced |
House of Representatives,
20 October 2016 |
| Rights |
Social security; work and
maternity leave; equality and non‑discrimination (see Appendix 2) |
| Previous report |
8 of 2016 |
| Status |
Concluded |
Background
2.65
The committee has previously examined the measures contained in the Paid
Parental Leave Amendment Bill 2014 (2014 bill) and Fairer Paid Parental Leave
Bill 2015 (2015 bill) in its Fifth Report of the 44th Parliament,
Eighth Report of the 44th Parliament, Twenty‑fifth
Report of the 44th Parliament, and Thirty-seventh Report of the 44th
Parliament.[47]
2.66
Following the commencement of the 45th Parliament, the Fairer Paid
Parental Leave Bill 2016 (the 2016 bill) was reintroduced to the House of
Representatives on 20 October 2016. While key measures in the 2016 bill remain
the same, there have also been some amendments to this bill (when compared to
the measures in the 2015 bill).
2.67
The committee first reported on the 2016 bill in its Report 8 of 2016,
and requested a response from the Minister for Social Services by 18 November
2016.[48]
2.68
The minister's response to the committee's inquiries was received on
18 November 2016. The response is reproduced in full at Appendix 3.
Restrictions on paid parental leave scheme
2.69
The previous human rights assessment of the 2014 and 2015 bills
considered that the measures engaged the rights to social security, work and
maternity leave, and equality and non‑discrimination. This is because
under the proposed measures primary carers who receive employer-funded parental
leave pay would have had their government-funded entitlements reduced or
removed. In reducing the social security support available to new parents, the
measure is a retrogressive measure for the purposes of international human
rights law, and engages the right to social security and the right to maternity
leave.[49]
Further, where a measure impacts on particular groups disproportionately, it
establishes prima facie that there may be indirect discrimination. As
women are the primary recipients of the paid parental leave scheme, reductions
to this scheme under the bill would disproportionately impact upon this group
and the right to equality and non‑discrimination is therefore also
engaged.
2.70
On the basis of further information provided by the minister, the
previous human rights assessments of the 2014 and 2015 bills concluded that
proposed restrictions to the paid parental leave scheme were compatible with
human rights.[50]
2.71
However, the assessment of the 2016 bill noted that there were questions
as to the proportionality of the reintroduced measures, despite the fact that
overall the measures pursued a legitimate objective for the purposes of
international human rights law.[51]
The provisions in the bill would have taken effect from the first 1 January, 1
April, 1 July or 1 October after the bill received Royal Assent. This
meant that under the proposed amendments, it was possible that parents who were
already pregnant would no longer qualify for the PPL scheme. The 2015 bill, in
comparison, had allowed a period of approximately one year from the date of
introduction of the bill for the proposed measures to come into effect.
2.72
As the 2016 bill contained a significant reduction in the period of time
before the provisions would take effect from that contained in the earlier
versions of the bill, the committee therefore sought the advice of the Minister
for Social Services as to whether the limitation was a reasonable and
proportionate measure for the achievement of its stated objective, and in
particular, why it is necessary to reduce the period of time before the
proposed measures will enter into force.
2.73
Subsequently, on 8 February 2017, the Social Services Legislation
Amendment (Omnibus Savings and Child Care Reform) Bill 2017 was introduced into
the House of Representatives. Schedule 17 of this bill also seeks to amend the
PPL Act to provide that primary caregivers of newborn children will no longer
receive both employer provided primary carer leave payments and the full amount
of parental leave pay under the government-provided PPL scheme. However, the
proposed changes will commence from the first 1 January, 1 April, 1 July or 1
October that is nine months after the date the Act receives Royal Assent, with
an earliest commencement date of 1 January 2018.
2.74
As these reintroduced measures will no longer reduce or remove payments
to parents who are already pregnant at the time of passage of the bill, they
address the committee's previous concerns regarding the proportionality of the
measures.
Committee response
2.75
The committee thanks the Minister for Social Services for his
response and has concluded its examination of this issue.
2.76
The committee draws its comments in relation to the Social Services
Legislation Amendment (Omnibus Savings and Child Care Reform) Bill 2017 in
Chapter 1 of this report to the attention of the Parliament.
Migration Amendment (Visa Revalidation and Other Measures) Bill 2016
| Purpose |
Seeks to empower the
Minister for Immigration and Border Protection to require that certain visa
holders complete a revalidation check; provides that certain events that
cause a visa that is held and not in effect to cease; and enables the use of
contactless technology in the immigration clearance system |
| Portfolio |
Immigration and Border
Protection |
| Introduced |
House of Representatives,
19 October 2016 |
| Rights |
Non-refoulement; effective
remedy and liberty; equality and non‑discrimination; privacy
(see Appendix 2) |
| Previous reports |
9 of 2016 |
| Status |
Concluded |
Background
2.77
The committee first reported on the Migration Amendment (Visa
Revalidation and Other Measures) Bill 2016 (the bill) in its Report 9 of
2016, and requested further information from the Minister for Immigration
and Border Protection in relation to the human rights issues identified in that
report.[52]
2.78
The minister's response to the committee's inquiries was received on
20 January 2017. The response is discussed below and is reproduced in full
at Appendix 3.
Power to require revalidation check relating to a prescribed visa
2.79
Schedule 1 of the bill introduces a new revalidation check framework
into the Migration Act 1958 (Migration Act) which would provide the
minister with the discretionary power to make a decision as to whether a person
who holds a visa, which is prescribed for the purposes of new subsections
96B(1) or 96E(1), is required to complete a revalidation check for that visa.[53]
A 'revalidation check' is 'a check as to whether there is any adverse
information relating to a person who holds a visa'.[54]
The scope, timing or nature of a revalidation check is otherwise not provided
for by the bill. If a revalidation check is not completed, or is not passed,
the affected person's visa will cease.
2.80
If the minister thinks it is in the public interest to do so, the
minister is also empowered to make a determination, by legislative instrument,
for a specified class of persons who are required to complete a revalidation
check.[55]
This power is a personal non‑compellable power and this instrument is not
subject to disallowance.
2.81
A person will pass a revalidation check if the minister is satisfied
there is no 'adverse information relating to the person'.[56]
2.82
The minister therefore has the power to prescribe any type of visa as
being subject to the revalidation check framework. While the explanatory
memorandum stated that the measures in Schedule 1 of the bill are designed to
initially apply to Chinese nationals who will be granted a new 'longer validity
Visitor visa',[57]
the bill places no limit on the breadth of this power. Therefore, the proposed
measure is not restricted to this class of visa or to any particular group of
people.
2.83
The previous analysis identified that the proposed measure engages the
right to non-refoulement, as it is possible that the minister's proposed powers
regarding the revalidation check could apply to a visa holder or class of visa
holders who hold a protection visa, and could lead to a protection visa holder
failing the revalidation check and having their visa cancelled. As Schedules 1
and 2 of the bill are administrative measures that would not be reviewable by
the Administrative Appeals Tribunal under Part 5 of the Migration Act, the
measure also engages the right to an effective remedy. The previous analysis
identified that the right to liberty and the right to protection of the family
were also engaged.
2.84
As the statement of compatibility did not recognise that these rights
were engaged by the measure, the committee therefore sought the advice of the
Minister for Immigration and Border Protection as to:
-
why there is no limit on the face of the bill as to the type of
visas that may be prescribed as being subject to the possibility of a
revalidation check; and
-
whether, in light of the broad power to prescribe any kind of
visa, the measure is compatible with Australia's non-refoulement obligations,
the right to an effective remedy, the right to liberty and the right to
protection of the family.
2.85
The previous analysis also identified that the measure engages and may
limit the right to equality and non-discrimination insofar as there is nothing
on the face of the bill that limits the minister's powers to apply the
revalidation check to this class of visitor visa for Chinese nationals,
contrary to the stated intended application of the provisions.
2.86
In assessing whether the measure is proportionate to managing risks to
the Australian community through immigration channels, a possible legitimate
objective for the purposes of international human rights law, the previous
analysis noted that it is uncertain whether the bill, as currently drafted,
will guarantee the right to equality and non-discrimination. This is because
there is nothing in the bill that would restrict the use of the power to the
stated intention,[58]
and the administrative safeguards referred to in the statement of compatibility
are less reliable than the protection statutory processes offer.
2.87
The committee therefore also sought the advice of the minister as to
whether safeguards could be included in the legislation, such as:
-
the minister's power to require a revalidation check be limited
to long-term visitor visas;
-
the basis upon which a revalidation check may be required be made
clear in the legislation, rather than being a matter of ministerial discretion;
and
-
a requirement that the minister's power to require a person or
classes of persons to complete a revalidation check is based on an objective
assessment of an increased risk to the Australian community.
Minister's response
2.88
The minister's response addresses each of the matters set out at [2.84]
in respect of the compatibility of the measure with multiple rights.
2.89
In response to the committee's question as to why there is no limit on
the face of the bill as to the type of visas that may be prescribed as being
subject to the possibility of a revalidation check, the minister has advised
that the classes of visas that may become subject to a revalidation check would
be prescribed through a disallowable instrument, allowing for parliamentary
scrutiny over the visas prescribed, and the possibility of disallowance of the
instrument.
2.90
The minister also stated that at present, only the new Frequent
Traveller stream of the Subclass 600 (Visitor) visa (Frequent Traveller visa)
will be prescribed for the purposes of requiring a revalidation check, and this
will support the trial of a new longer validity visitor visa, initially only
available to Chinese nationals. The minister's response explained why there is
no restriction on the class of visas that may be subject to the revalidation
check:
[f]lexibility has been provided to enable other longer
validity visa products to be implemented in the future. The revalidation
framework may be an appropriate mechanism to manage identified risks in these
products. Limiting the types of visas that can be prescribed would restrict the
ability to use the revalidation framework to reduce red tape and manage risks
associated with newly developed or reformed visa products.[59]
2.91
In response to the committee's question as to whether the measure is
compatible with Australia's non‑refoulement obligations, the right to an
effective remedy, the right to liberty and the right to protection of the
family, the minister responded that the revalidation framework has no impact on
the department's existing protection, cancellation, detention or removal
frameworks, and set out that the revalidation framework does not engage
Australia's non‑refoulement obligations, the right to an effective remedy
or the right to liberty for the following reasons:
-
where an onshore visa holder does not pass a revalidation check
for the visa, this will be referred to a visa cancellation delegate who will
consider whether a visa cancellation ground exists under the existing
cancellation framework;
-
an onshore visa holder will not become an unlawful non-citizen as
a direct consequence of not passing a revalidation check, or failing to comply
with a revalidation requirement. New subsections 96D(2) and 96H(2) of the bill
provide that where an onshore visa holder does not complete or pass a
revalidation check, their visa will only cease to be in effect upon departure
from Australia;
-
an onshore visa holder will not be detained or removed from
Australia as a direct consequence of not passing a revalidation check or
failing to comply with a revalidation requirement; and
-
the revalidation check framework does not prevent a visa holder
from applying for a protection visa if they wish to make protection claims
while they are still in Australia – therefore the framework does not breach
Australia's non-refoulement obligations by requiring a revalidation check,
noting that the onus is on the individual to declare that they have protection
claims.[60]
2.92
The minister's response also discussed the right to protection of the
family, noting that currently only the new Frequent Traveller visa will be
prescribed which provides only for a 3-month stay period and a cumulative stay
period of no more than 12 months in any 24-month period, and that any other
visa classes subject to the revalidation check would first be prescribed by a
disallowable instrument.
2.93
It is noted that the prescription of the type of visa subject to a
revalidation check will be done through a disallowable instrument. It is
generally preferable that limits on the exercise of a broad power are included
in primary legislation. However, the committee will examine any instrument that
prescribes a visa for the purposes of the revalidation check framework for
compatibility with human rights. Depending on the type of visa prescribed, the
instrument may engage a number of human rights (including the right to
protection of the family and freedom of movement).
2.94
The minister's response also addresses each of the matters set out at [2.87]
in respect of the right to equality and non-discrimination. The minister did
not agree that it would be effective to include the suggested safeguards in the
legislation:
-
in respect of limiting the revalidation check to long-term
visitor visas, the minister stated that '[f]lexibility has been provided to
cater for visa products that may be developed or reformed in the future', and
noted that new classes of visas made subject to a revalidation check will be
prescribed through a disallowable instrument;
-
in respect of clarifying the basis of the requirement for a
revalidation check in legislation, the minister stated that '[f]lexibility has
been provided in the legislation to reduce regulatory burden, whilst managing
risks associated with newly developed or reformed visa products'. The minister
stated that it is intended that a routine revalidation requirement will be
conducted every two years, and that '[s]pecifying a particular interval for a
routine revalidation requirement in the legislation would reduce the Department's
ability to accommodate changes in government policy that reflect changing
global circumstances and may result in an unintended increase in red tape for
visa holders.' It was further noted that '[i]f the Parliament considered it was
inappropriate for a visa which has been prescribed to be subject to the
revalidation check process, a motion could be moved to disallow that
regulation'; and
-
in response to the committee's suggestion that the legislation
include a requirement that the minister's power to require a person or classes
of persons to complete a revalidation check be based on an objective assessment
of an increased risk to the Australian community, the minister stated that it
is intended this power will be exercised in circumstances requiring immediate
response, and that:
[t]he tabling provisions in new
subsections 96E(3), 96E(4) and 96E(5) of the Bill ensure that the Parliament
can scrutinise the Minister's decision and provide comment on such a
determination through a motion of disapproval or other mechanism. This provides
additional scrutiny of the Minister's decision.[61]
2.95
While the flexibility that will apparently be provided by delegated
legislation goes to the stated objective of the measure,[62]
the minister's response does not address the discussion in the previous
analysis that there is nothing in the bill that would restrict the use of the
power to the stated intention,[63]
and that the administrative safeguards discussed are less reliable than the
protection statutory processes offer.
2.96
Further, while proposed subsections 96E(3), 96E(4) and 96E(5) of the
bill allow for some oversight by Parliament of the minister's decision to
require a person or classes of persons to complete a revalidation check,
Parliament has no authority to prevent the minister from exercising this power.
As such, as the legislation is currently drafted, the minister could exercise
this power in such a way that could have a disproportionate effect on people on
the basis of their nationality, religion, race or sex. These provisions are
therefore insufficient to protect against a misuse of the minister's power that
could have the effect of unjustifiably limiting the right to equality and
non-discrimination.
Committee response
2.97
The committee thanks the Minister for Immigration and Border
Protection for his detailed response and has concluded its examination of the
issue.
2.98
The committee considers that the minister's response has addressed
the committee's concerns regarding the right to non‑refoulement (the
associated right to an effective remedy) and the right to liberty. In respect
of other human rights, the committee accepts that the disallowance process for
instruments prescribing a visa for the purposes of the revalidation check
framework will allow a human rights compatibility assessment to be undertaken
once a visa is prescribed.
2.99
The measure in section 96E is capable of operating in a manner that
is incompatible with the right to equality and non-discrimination. Accordingly,
the committee draws this to the attention of the Parliament.
2.100
The committee notes that it will continue to examine instruments made
pursuant to the proposed measures in order to assess their compatibility with
human rights.
Migration Legislation Amendment (Regional Processing Cohort) Bill 2016
| Purpose |
Seeks to amend the Migration Act 1958 and the
Migration Regulations 1994 to prevent 'unauthorised maritime arrivals' and
'transitory persons' who were at least 18 years of age and were taken to a
regional processing country after 19 July 2013 from making a valid
application for an Australian visa |
| Portfolio |
Immigration and Border
Protection |
| Introduced |
House of Representatives, 8
November 2016 |
| Rights |
Protection of the family;
family reunion; children; equality and non‑discrimination (see Appendix
2) |
| Previous report |
9 of 2016 |
| Status |
Concluded |
Background
2.101
The committee first reported on the Migration Legislation Amendment
(Regional Processing Cohort) Bill 2016 (the bill) in its Report 9 of 2016,
and requested further information from the Minister for Immigration and Border
Protection in relation to the human rights issues identified in that report.[64]
2.102
The minister's response to the committee's inquiries was received on
20 January 2017. The response is discussed below and is reproduced in full
at Appendix 3.
Permanent lifetime visa ban for classes of asylum seekers
2.103
The proposed amendments to the Migration Act 1958 (Migration Act)
would serve to prevent asylum seekers who were at least 18 years of age, and
were taken to a regional processing country after 19 July 2013,[65]
from making a valid application for an Australian visa.[66]
Such asylum seekers would accordingly face a permanent lifetime ban from
obtaining a visa to enter or remain in Australia. If the minister thinks that
it is in the public interest to do so, pursuant to the proposed personal,
discretionary, non-compellable power of the minister, the minister may
determine that the proposed statutory bar to making a valid visa application
does not apply to an individual or class of persons in respect of visas
specified in the determination.[67]
2.104
The previous analysis identified that the bill engages the right to
equality and non-discrimination by its differential treatment of 'cohorts' or
groups of people in materially similar situations, that is, people making an
application for a visa to enter or remain in Australia. It was noted that the
statement of compatibility acknowledged that the proposed ban could amount to
differential treatment.[68]
2.105
The previous analysis also noted that the ban would appear to apply a
penalty on those who seek asylum and are part of the 'regional processing
cohort', contrary to article 31 of the Convention Relating to the Status of
Refugees and its Protocol.[69]
2.106
The previous analysis also identified that the ban may also have a
disproportionate negative effect on individuals from particular national
origins; nationalities; or on the basis of race, which gives rise to concerns
regarding indirect discrimination on these grounds.
2.107
The previous analysis stated that, on the information available, the
proposed ban does not appear to be compatible with the right to equality and
non‑discrimination.
2.108
The committee therefore sought the advice of the minister as to whether,
in respect to the right to equality and non-discrimination, there is a rational
connection between the limitation and the stated objective, and whether the
measure is reasonable and proportionate for the achievement of that objective.
2.109
The previous analysis also identified that the measure engages and
limits the right to protection of the family and rights of the child. The
measure would foreseeably operate to separate families on the basis that an
individual subject to the visa ban will be prevented from joining family
members in Australia, including where these family members have been granted a
visa to come to or remain in Australia or are Australian citizens. The measure
may also impact upon children by preventing an individual subject to a visa ban
from being with a child who is an Australian citizen or child who is otherwise
entitled to reside in Australia.
2.110
It was noted in the previous analysis that the statement of
compatibility acknowledges that the right to protection of the family and
rights of the child are engaged and could be limited by the measure, but did
not specifically address whether the measure is a permissible limit on the
right to protection of the family or rights of the child. It was stated that,
on its own, the exercise of the discretionary power by the minister is unlikely
to be sufficient to ensure that the measure is a proportionate limit on the
right to protection of the family in the context of a blanket visa ban.
2.111
The committee therefore sought the advice of the minister as to whether,
in respect to the right to protection of the family and rights of the child,
there is a rational connection between the limitation and the stated objective,
and whether the measure is reasonable and proportionate for the achievement of
that objective.
Minister's response
2.112
In respect of the committee's query about whether the limitation
criteria applies to the right to equality and non-discrimination, the minister
stated that '[p]ersonal characteristics such as race, ethnicity, nationality
(other than not being an Australian citizen), religion, gender or sexual
orientation are not criteria for identifying non-citizens in the affected
cohort', and that the measure has already been limited insofar as it will not
apply to children who were under 18 at the time they were first transferred to
a regional processing country, or were born to a member of the affected cohort.[70]
2.113
The minister stated that while differential treatment of the cohort on
the basis of 'other status' could amount to a distinction on a prohibited
ground under international law, the government's view is that this differential
treatment 'is for a legitimate purpose and based on relevant objective criteria
and that it is reasonable and proportionate in the circumstances'. This is
because the differential treatment is 'a proportionate response to prevent a
cohort of non-citizens who have previously sought to circumvent Australia's
managed migration program by entering or attempting to enter Australia as a
[unauthorised maritime arrival] from applying for a visa to enter Australia.'[71]
2.114
The previous analysis identified that to penalise those who seek to
enter Australia illegally for the purpose of seeking asylum cannot be a
legitimate objective under international law.[72]
It is apparent from the minister's response that this is indeed the objective
being sought by the measure, as:
[t]he measures are aimed at further discouraging persons from
attempting hazardous boat journeys with the assistance of people smugglers in
the future and encouraging them to pursue regular migration pathways instead.
People smugglers are still active in attempting to encourage illegal migration
to Australia and use changes in circumstances and the ongoing media discussion
as a basis for proposing the current policy is softening or will soften in the
future. The measures are intended to counter this to diminish the ability for
people smugglers to attract potential clients.[73]
2.115
Therefore, on the basis of the information provided in the minister's
response, and as stated in the previous analysis, the proposed ban does not
appear to be compatible with the right to equality and non‑discrimination.
2.116
In respect of the committee's query about whether the measure is
rationally connected to and proportionate to achieving the stated objective in
respect of the right to protection of the family and rights of the child, the
minister stated that the flexibility to personally lift the bar and consider
the individual circumstances of applicants and their relationships with family
members enables the government to 'ensure that it acts consistently with its
obligations to families and children in Australia.'[74]
2.117
The minister further noted that the measures are intended to counter the
use of people smugglers by asylum seekers in order to 'diminish the ability for
people smugglers to attract potential clients.'[75]
2.118
However, as with the statement of compatibility, the minister's response
does not specifically address whether the measure is a permissible limit on the
right to protection of the family or rights of the child.
2.119
Therefore, and as stated in the previous analysis, the exercise of the
discretionary power by the minister is unlikely to be sufficient to ensure that
the measure is a proportionate limitation on the right to protection of the
family in the context of a blanket visa ban.[76]
In this respect, it is noted that the default position (without discretionary
intervention by the minister) would be for families to remain separated.
Committee response
2.120
The committee thanks the Minister for Immigration and Border
Protection for his response and has concluded its examination of the issue.
2.121
Noting the human rights concerns raised above, the committee is
unable to conclude that the measure is compatible with the right to equality
and non‑discrimination, the right to protection of the family and rights
of the child. The objective identified in the minister's response, that is,
seeking to impose a penalty on those who seek to enter Australia for the
purpose of claiming asylum, cannot be a legitimate objective for the purpose of
limiting human rights under international law.
2.122
The committee draws the human rights implications of the proposed
lifetime visa ban for certain classes of asylum seekers to the attention of the
Parliament.
Privacy Amendment (Re-identification Offence) Bill 2016
| Purpose |
Seeks to amend the Privacy
Act 1988 to introduce provisions which prohibit conduct related to the
re-identification of de‑identified personal information published or
released by Commonwealth entities |
| Portfolio |
Attorney-General |
| Introduced |
Senate, 12 October 2016 |
| Rights |
Fair trial; presumption of
innocence; prohibition on retrospective criminal laws (see Appendix 2) |
| Previous report |
9 of 2016 |
| Status |
Concluded |
Background
2.123
The committee first reported on the Privacy Amendment (Re-identification
Offence) Bill 2016 (the bill) in its Report 9 of 2016, and requested a
response from the Attorney-General by 16 December 2016.[77]
2.124
The Attorney-General's response to the committee's inquiries was
received on 21 December 2016. The response is discussed below and is reproduced
in full at Appendix 3.
Retrospective effect of the proposed offences
2.125
The bill seeks to act as a deterrent against attempts to re‑identify
de‑identified personal information in published government datasets. It
would apply to entities (including small businesses) and individuals.[78]
2.126
Proposed sections 16D, 16E and 16F of the bill all apply to acts that
were committed on or after 29 September 2016,[79]
this being the date following the Attorney-General's media release that stated
the government's intention to introduce a criminal offence of re-identifying
de-identified government data.[80]
This differs from the usual practice that legislation creating criminal offences
operates prospectively from or after the Royal Assent is given to the
legislation.
2.127
As proposed sections 16D and 16E of the bill would make the proposed
offence provisions operate retrospectively, the absolute prohibition on
retrospective criminal law is engaged.
2.128
The committee therefore sought the advice of the Attorney-General as to
whether consideration has been given to amending paragraphs 16D(1)(c) and
16E(1)(c) such that the offences in these sections operate prospectively, that
is, from or after the date of the Royal Assent.
Attorney-General's response
2.129
In his response, the Attorney-General stated that the government 'gave
careful consideration' as to whether the proposed offences could operate
prospectively from the date of Royal Assent.[81]
2.130
The Attorney-General stated that the amendments were proposed
immediately in response to the recently identified vulnerability in the
Department of Health's Medicare and Pharmaceutical Benefits Scheme dataset, in
order for the government to 'strengthen protections for personal information
against re‑identification'.[82]
2.131
The Attorney-General noted:
The release of personal information can have significant
consequences for individuals which cannot be easily remedied. In particular,
once personal information is made available online it is very difficult - in
many cases impossible - to fully retract that information or prevent further
access. Applying the offences to conduct occurring from the day after [the
media release] provides a strong disincentive to entities who, upon hearing of
this intention, may have been tempted to attempt re-identification of any
published datasets while the Parliament considers the Bill.[83]
2.132
The Attorney-General also noted that the government took 'swift action
to introduce the Bill in the Parliament at the earliest available opportunity'
such that the retrospective application will only apply for a short time
period.[84]
2.133
The Attorney-General stated that, given these circumstances, the
government considered that these 'narrowly prescribed offences' are likely to
have a limited retrospective effect, and that entities were clearly given
notice that this particular conduct would be made subject to offences from 29
September 2016.[85]
2.134
The previous legal analysis identified that the prohibition on retrospective
criminal laws is absolute, which means that it can never be permissibly
limited. Therefore, any criminal offence that applies retrospectively breaches
the absolute prohibition on retrospective criminal liability, regardless of the
reason for the retrospectivity. As a matter of human rights law, this measure
is therefore incompatible with the prohibition on retrospective criminal laws.
Committee response
2.135
The committee thanks the Attorney-General for his response, notes the
detailed explanation provided, and has concluded its examination of this issue.
2.136
As the prohibition on retrospective criminal laws is absolute under
international human rights law, the measure, in applying the criminal offences
retrospectively, is incompatible with the prohibition on retrospective criminal
laws.
2.137
The committee draws the Attorney-General's advice and the human
rights implications of the retrospective criminal offences to the attention of
the Parliament.
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 |
| Right |
Fair trial (see Appendix
2) |
| Previous report |
1 of 2017 |
| Status |
Concluded |
Background
2.138
The committee first reported on the Treasury Laws Amendment (2016 Measures
No. 1) Bill 2016 (the bill) in its Report 1 of 2017, and requested a
response from the Minister for Revenue and Financial Services by 3 March 2017.[86]
2.139
The minister's response to the committee's inquiries was received on
8 March 2017. The response is discussed below and is reproduced in full at
Appendix 3.
Civil penalty provisions
2.140
Schedule 5 of the bill introduces a power into the Corporations Act
2001 (Corporations Act) for the Australian Securities and Investments
Commission to make rules by legislative instrument in relation to derivative
retail client money.[87]
The client money reporting rules may include a penalty amount for a rule, which
must not exceed $1 000 000.[88]
This penalty could apply to a natural person. Failure to comply with the rules
is a civil penalty provision.[89]
2.141
The initial analysis identified that the measure raised questions as to
the compatibility of the measure with the right to a fair trial, insofar as
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. This was not addressed in the statement of
compatibility.
2.142
The committee therefore sought the advice of the minister 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.
Minister's response
2.143
The minister's response applies the committee's Guidance Note 2
in relation to whether the civil penalty provisions should be considered
'criminal' for the purposes of international human rights law. The minister
identifies the following factors which she considers support the view that the
client money penalty regime is not 'criminal' in nature:
-
the $1 000 000 penalty is not a criminal penalty under Australian
law;
-
the penalty applies exclusively to licensees and not to the
general public;
-
there is no criminal sanction if there was a failure to pay the
penalty; and
-
the size of the maximum penalty is proportionate, 'given the
corporate nature of the financial services industry and the amounts of client
money that may be handled by licensees subject to the rules.'[90]
2.144
In her response, the minister stated that the government considers that
a maximum penalty of $1 000 000 'is appropriate given the scale of potential
loss that may result from a contravention', noting that '[t]he market integrity
rules have an equivalent penalty regime for the same reason.'[91]
2.145
The question as to whether a civil penalty might be considered to be
'criminal' for the purposes of international human rights law may be a
difficult one and often requires a contextual assessment. However, it is
settled that a penalty or other sanction may be 'criminal' for the purposes of
the ICCPR, despite being classified as 'civil' under Australian domestic law.
Where a penalty is 'criminal' for the purposes of international human rights
law this does not mean that it is illegitimate or unjustified. Rather it means
that criminal process rights such as the right to be presumed innocent
(including the criminal standard of proof) and the prohibition against double
jeopardy apply.
2.146
In this particular case, on balance, although the proposed civil penalty
is substantial, owing to the fact that the penalty will not apply to the
general public and reflects the corporate nature of the financial services
industry and the amounts of client money that may be handled by licensees
subject to the rules, the penalty is unlikely to be criminal in nature.
Committee response
2.147
The committee thanks the Minister for Revenue and Financial Services
for her response and has concluded its examination of this issue.
2.148
The committee considers that, although the proposed civil penalty is
substantial, the circumstances surrounding its application suggest that it is
unlikely that it would be considered criminal for the purposes of international
human rights law.
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 (NSW) 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) |
| Previous report |
1 of 2017 |
| Status |
Concluded |
Background
2.149
The committee first reported on the Jervis Bay Territory Marine Safety
Ordinance 2016 [F2016L01756] (the Ordinance) in its Report 1 of 2017,
and requested a response from the Minister for Local Government and Territories
by 3 March 2017.[92]
2.150
The Minister for Local Government and Territories' response to the
committee's inquiries was received on 3 March 2017. The response is discussed
below and is reproduced in full at Appendix 3.
Reverse legal burden of proof
2.151
Section 56 of 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 Criminal Code Act 1995 (Criminal
Code).
2.152
The previous analysis noted that 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. However, this was not identified in the
statement of compatibility.
2.153
The previous analysis noted that the explanatory statement appeared to
set out a legitimate objective for the purposes of international human rights
law, namely to ensure public safety. While the explanatory statement also set
out a possible basis for reversing the evidential burden of proof it did not
explain why it is necessary to reverse the legal burden of proof.
2.154
Additionally, the previous analysis noted that while the explanatory
statement stated 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 was 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.
2.155
The committee therefore sought 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.
Minister's response
2.156
The minister's response advises that the objective of the Ordinance is
to 'provide a comprehensive regime for marine safety in the Jervis Bay
Territory' and thereby protect the right to life. The minister's response
advises that the Ordinance ensures public safety by imposing limits on the permissible
level of alcohol present in the breath or blood of persons operating or
supervising the operation of vessels in the Jervis Bay Territory (the territory).
The minister's response notes that the Ordinance recognises that there are
circumstances where such persons will inadvertently or unavoidably have alcohol
in their breath or blood and that the defence in section 63 exists to allow for
these circumstances.
2.157
The minister's response states that the reversal of the onus of proof in
section 63 is appropriate because the circumstances set out in that section are
matters that are specifically within the knowledge of the defendant. In
relation to applying a legal (rather than an evidential) burden of proof, the
minister states that the approach is appropriate because:
-
the matters set out in section 63 relate to the purpose of the
defendant's consumption of a substance, and would be difficult to prove in the
negative if a lower evidential burden applied; and
-
the inappropriate use of alcohol and drugs in a marine
environment could cause injury or loss of life.[93]
2.158
However, the Attorney-General's Department's Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement Powers (the
Guide) states that the fact that it is difficult for the prosecution to prove a
particular matter has not traditionally been considered in itself to be a sound
justification for placing the burden of proof on a defendant.[94]
This statement is made in the context of evidential (rather than legal) burdens
of proof: legal reversals of the burden of proof encroach even more
significantly on the presumption of innocence, and the Guide has stated that
placing a legal burden of proof on a defendant should be kept to a minimum.
2.159
As noted in the initial analysis, the minister's response provides
information that may justify the reversal of the evidential burden of
proof, but has not explained why it is necessary to reverse the legal burden
of proof. The measure may therefore not be the least rights restrictive way to
achieve the stated objective.
Committee response
2.160
The committee thanks the Minister for Local Government and
Territories for her response and has concluded its examination of this issue.
2.161
The committee notes that, while the minister's response may justify
the reversal of the evidential burden with respect to the defence in section
63, it has not provided sufficient information to justify placing a legal
burden on the defendant in these circumstances. The measure may therefore not
be the least rights restrictive way to achieve the stated objective.
2.162
The committee therefore concludes that the measure, in placing the
legal burden of proof on the defendant, unjustifiably limits the right to the
presumption of innocence.
Alcohol and drug testing
2.163
Section 64 of the Ordinance provides that the Road Transport (Alcohol
and Drugs) Act 1977 (Australian Capital Territory) (the ACT Act) applies in
relation to a person who operates a vessel in territory waters.
2.164
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.
2.165
As the Ordinance directly incorporates the law set out in the ACT Act,
the previous analysis noted that, 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.
2.166
The previous analysis noted that the provisions of the ACT Act engage
and limit a number of rights, including the right to liberty and the right to
privacy.
2.167
With respect to the right to liberty, the previous analysis noted that
the statement of compatibility states that while the measure 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.'[95]
While ensuring public safety is a legitimate objective for the purposes of
international human rights law, the statement of compatibility does not provide
further analysis of how the limitation is rationally connected, or
proportionate, to the achievement of the stated objective.[96]
2.168
The previous analysis further noted that, 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 when random drug
testing is not predicated on the relevant police officer having a 'reasonable
suspicion' on which to ground the request for a sample to test.[97]
2.169
With respect to the right to privacy, the previous analysis noted that
the measures appear to be rationally connected to the legitimate objective of
ensuring public safety, but that there are questions over whether the
limitation on the right to privacy is proportionate to the stated objective.
The previous analysis noted that 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.[98]
2.170
Further, the previous analysis noted that 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.
2.171
The committee therefore sought 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.
Minister's response
2.172
Noting that the ACT Act was previously subject to human rights scrutiny
by the ACT Human Rights Commission, the minister's response states that it is
not established practice for ACT laws applied to the Jervis Bay Territory to be
scrutinised for human rights compatibility at the Commonwealth level. The
minister's response advises that the rationale for incorporating ACT Act
provisions that relate to road transport into provisions in the Ordinance is
that officers of the Australian Federal Police are familiar with the provisions
and it is desirable for similar procedures to be adopted in the marine
environment for consistency.[99]
2.173
With respect to incorporated ACT measures that engage the right to
liberty (by allowing police officers to take persons into custody in certain
circumstances), the minister's response states that these measures are a
rational and proportionate response to reduce the likelihood of persons
injuring themselves and others.[100]
2.174
With respect to incorporated measures that allow alcohol and drug
testing on persons operating vehicles in territory waters, the minister's
response notes that random drug testing has a deterrent effect on individuals
unlawfully using such substances, resulting in safety benefits accruing to the
general public. The response also states that similar justifications apply to
provisions that make it an offence to refuse to undergo an alcohol or drug
test. The minister's response concludes that consequential behavioural changes
brought about by these measures indicate that they are the least rights
restrictive way to protect the public.[101]
2.175
While deterrence of behaviour that causes a risk to public safety may be
a legitimate objective for the purposes of international human rights law, with
respect to the right to privacy, the minister's response provides no
information about what safeguards are available in the ACT Act to protect the
right to privacy for persons who are subject to alcohol and drug testing.
2.176
It is noted that the ACT Act contains some safeguards relating to the
collection and retention of samples. For example section 16D requires the
destruction of samples and sections 13 and 13F provide precautions for privacy
in relation to breath and oral fluid analysis. In addition, section 18B
provides that samples may only be used for four restricted purposes.[102]
However, section 64(2) of the Ordinance exempts section 18B of the ACT Act from
applying in the territory. The minister's response does not provide information
as to whether an equivalent safeguard will apply to samples taken in the
territory.
Committee response
2.177
The committee thanks the Minister for Local Government and
Territories for her response and has concluded its examination of this issue.
2.178
However, noting the concerns raised around measures that incorporate
ACT laws which limit human rights, the committee considers that the minister's
response has not sufficiently addressed the question of whether the
incorporation of ACT laws is the least rights restrictive approach to achieve
the stated objective of the Ordinance. In order to avoid potential
incompatibility with the right to privacy, the committee considers it may be
appropriate if the Ordinance incorporated further safeguards around the
retention, destruction and use of samples.
Search and entry powers
2.179
Section 83 of the Ordinance empowers a police officer to board a vessel
and exercise monitoring powers,[103]
for the purpose of: finding out whether the Ordinance and the rules are being,
or have been, complied with;[104]
investigating a marine accident; conducting a marine safety operation; or
asking questions about the nature and operations of the vessel.[105]
2.180
The previous analysis noted that the statement of compatibility
recognises that the right to privacy is engaged by the measure,[106] and
that 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. However, the
previous analysis questioned whether the limitation is proportionate to the
stated objective, in particular, whether it is the least rights restrictive
approach.
2.181
The previous analysis noted that while 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,[107]
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'. The previous analysis
noted that this would appear to allow the police to confer on any person
the power to assist in the exercise of these coercive powers.
2.182
The previous analysis also noted that section 83 confers a range of
broad purposes for the exercise of these powers 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. The previous analysis also
noted that there are no requirements that the police officer first seek the
consent of the occupier before boarding and 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.
2.183
The committee therefore sought 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.
Minister's response
2.184
With respect to section 92, and 'persons assisting' police officers,
the minister's response advises that the exercise of such a power would be
'extremely rare' in practice. The minister further states that persons
assisting a police officer must at all times act at the direction of the police
officer they are assisting, and that the police officer is accountable for the
actions of the people from whom they have requested assistance. The minister's
response concludes that she considers that, on this basis, there is no reason
to limit powers under section 64 to police officers.[108]
2.185
It should be noted in this regard that there is no requirement in the
instrument that persons assisting a police officer must act at the direction of
the officer they are assisting, and the minister's response does not provide
information as to the consequences of not following a police officer's
direction.
2.186
With respect to search and entry powers more broadly, the minister's
response states that it is reasonable to require operators of vessels to permit
entry by police officers for marine safety purposes because such persons are
aware that their vessels are subject to regulatory oversight and therefore
implicitly accept that their compliance with regulatory requirements will be
monitored, including through entry into premises, and so it is not necessary for
a police officer to seek consent to enter.[109]
2.187
While it may be accepted that those operating a vessel are subject to
regulatory oversight this does not mean that the owners or operators of those
vessels waive their right to privacy. The minister's response refers to the
Attorney‑General's Department's Guide to Framing Commonwealth Offence,
Infringement Notices and Enforcement Powers (the Guide) which provides that
persons who obtain a licence or registration for non-residential premises can
be taken to accept entry to those premises for the purposes of ensuring
compliance with licensing or registration conditions. However, the minister's
response does not go on to consider the next paragraph in the Guide which
states that in respect of licensed premises the applicable legislation should
impose as a condition of the licence consent to entry onto non-residential
premises where the licensed activity happens.[110]
2.188
The Ordinance does not provide that simply by registering a vessel the
owner or operator of that vessel has consented to entry for the purpose of
ensuring compliance.
2.189
The minister's response also states that, while in practice the relevant
powers will normally be exercised where a police officer has established that a
reasonable suspicion exists, in 'exceptional rare circumstances' police
officers should be able to intervene without first determining whether
reasonable suspicion exists. The minister's response concludes that she does
not consider it necessary for the Ordinance to require that a police officer must
hold a reasonable suspicion before entering and searching a vessel as to do so
may impact on the capacity of a police officer to ensure users of the territory
marine environment are safe.[111]
2.190
Finally, the minister's response states that, as vessels are able to
leave territory waters in a short timeframe, it is generally impractical for a
police officer to obtain a warrant, and that requiring a police officer to do
so would 'severely limit' their capacity to undertake their safety regulatory
role in a responsive manner. The minister concludes that the limitations on the
right to privacy imposed by sections 83 and 92 are the least restrictive way to
protect the right to life of users of the territory marine environment.[112]
2.191
While recognising the importance of public safety, and that measures
pursuing a public safety objective could promote the right to life,
consideration of the proportionality of measures in the Ordinance that limit
human rights must balance the likelihood of an event occurring that may cause death
or injury against the impact of those measures on other rights, such as the
right to privacy. In this respect, the minister's response does not demonstrate
how the impact of requiring a police officer to determine whether a reasonable
suspicion exists or attempt to obtain a warrant where reasonable before
exercising these coercive powers would so 'severely limit' the capacity of
police officers to protect the safety of users of the marine environment as to
limit the right to life. It therefore does not appear that the measures are the
least rights restrictive approach to achieve the stated objective.
Committee response
2.192
The committee thanks the Minister for Local Government and
Territories for her response and has concluded its examination of this issue.
2.193
However, the committee considers that the minister's response has not
sufficiently addressed the question of whether the search and entry powers are
the least rights restrictive approach to achieve the stated objective of the
Ordinance. In order to avoid potential incompatibility with the right to
privacy, the committee considers it may be appropriate if the Ordinance:
-
limited the exercise of the powers to police officers (and not
'persons assisting' as under section 92), or at a minimum, required that the
persons assisting must act at the direction of the police officer;
-
required a police officer to seek the consent of the occupier of
the vessel before exercising the search and entry powers;
-
if consent is not granted, ensured 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.
Narcotic Drugs Regulation 2016 [F2016L01613]
| Purpose |
Makes regulations that are
necessary for 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) |
| Previous report |
1 of 2017 |
| Status |
Concluded |
Background
2.194
The committee first reported on the instrument in its Report 1 of
2017, and requested a response from the Minister for Health by 3 March
2017.[113]
2.195
The minister's response to the committee's inquiries was received on
6 March 2017. The response is discussed below and is reproduced in full at
Appendix 3.
Requirement to only engage 'suitable persons'
2.196
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 (the Act).[114]
2.197
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.[115]
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.[116]
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.
2.198
The committee noted that the right to work and the right to equality and
non-discrimination are engaged and limited by the prohibition on medicinal
cannabis licence holders employing or engaging prescribed 'unsuitable persons',
and the prevention of certain persons (who in the five years prior to
employment or engagement have been subject to certain prescribed circumstances)
from carrying out activities authorised by a cannabis licence.
2.199
As the statement of compatibility failed to discuss how the measure
engages and limits the right to work and the right to equality and
non-discrimination, the committee sought the advice of the Minister for Health
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.
Minister's response
2.200
In his response, the minister referred the committee to the statement of
compatibility for the Narcotic Drugs Amendment Act 2016 (Amendment Act).
2.201
In respect to the right to work, the minister referred to the
discussion in the statement of compatibility for the Amendment Act regarding
the statutory condition under sections 10F and 12H of the Act, which require a
licence holder only employ suitable persons. The statement provided that, for
the sake of the 'protection of public health and to help meet Australia's
international obligation to control diversion', the provision 'is designed to
address the risk of infiltration by organised crime below management level',
noting that '[e]mployees will have access to highly divertible cannabis
material with a high "street value"'.[117]
2.202
In respect to the right to equality and non-discrimination, the minister
stated that the discrimination and prevention of 'unsuitable persons' from
being employed is:
...necessary to address the high risk of diversion of cannabis
and other drugs to the illicit drug market, ensure that the medicinal cannabis
products made available to the Australian patients are from licit activities
and licit sources and comply with Australia's obligations under the Single
Convention on Narcotic Drugs as they relate to limiting the risk of diversion
of drugs.[118]
2.203
The protection of public health and compliance with Australia's
international obligation to control diversion would appear to be a legitimate
objective for the purposes of international human rights law. The minister's
response provides some information as to why it is considered necessary to
prescribe each particular class of people in order to achieve the legitimate
objective of the measure:
These persons will be physically handling, and will have
direct access to, highly divertible cannabis material with high 'street value'. A person who has a drug addiction, is undertaking
or has undertaken treatment for drug addiction, undischarged bankrupts, has
used illicit drugs, been convicted for a drug related offence or been convicted
of an offence that involved theft, would be unsuitable to engage in activities
such as cultivation, production and manufacture of drugs.
2.204
It is acknowledged that in light of the types of circumstances
that are prescribed, the nature of the industry and associated risks, it may be
that each prescribed category is necessary. The minister's response further identifies that the
circumstances in which a person is not taken to be suitable under subsections
18(2) and 39(2) of the regulation are limited to a period of five years, and
are not indefinite. Accordingly, on balance, it appears that the measure is
likely to be a proportionate limit on the right to work and the right to
equality and non‑discrimination.
Committee response
2.205
The committee thanks the Minister for Health for his response and has
concluded its examination of this issue.
2.206
The preceding analysis indicates that measure is likely to be
compatible with the right to work and the right to equality and
non-discrimination.
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) |
| Previous report |
1 of 2017 |
| Status |
Concluded |
Background
2.207
The committee first reported on the instrument in its Report 1 of
2017, and requested a response from the Presiding Officers by 3 March 2017.[119]
2.208
The Presiding Officers' response to the committee's inquiries was
received on 3 March 2017. The response is discussed below and is reproduced in
full at Appendix 3.
Publishing termination decision for breach of the Code of Conduct
2.209
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).
2.210
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).[120]
2.211
The 2016 Determination, which amends the 2013 Determination, addresses
many of the concerns raised by the committee in its First Report of the 44th Parliament
in respect of the 2013 Determination 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).[121]
The amendments made by the 2016 Determination reflect the provisions of the
2016 APS Directions.
2.212
In its recent consideration of the 2016 APS Directions, the committee
raised concerns with respect to the requirement to notify termination on the
grounds of the breach of the Code of Conduct in the Gazette, which engages and
limits the right to privacy.[122]
2.213
In his response to the committee's concerns, the Australian Public
Service Commissioner (the Commissioner) 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.[123]
2.214
The initial human rights analysis identified that the committee's
concerns with respect to the right to privacy in the 2016 APS Directions also
applied to the 2016 Determination.
2.215
Noting the advice of the Commissioner with respect to the APS Directions
2016, the committee therefore sought the advice of the Presiding Officers as to
whether the 2016 Determination will also be reviewed in line with the
Commissioner's review into the 2016 APS Directions.
Presiding Officers' response
2.216
The Presiding Officers' response notes that the Australian Public
Service Commission is conducting a review of the necessity to gazette
information in relation to termination decisions made on the grounds of a
breach of the Code of Conduct.
2.217
The Presiding Officers' response notes that a further examination of the
2016 Determination will be conducted in light of the findings of this review.
Committee response
2.218
The committee thanks the Presiding Officers for their response and
has concluded its examination of this issue.
2.219
The committee notes that the Presiding Officers will further examine
the 2016 Determination in light of the Australian Public Service Commission's
review into the 2016 APS Directions.
2.220
The committee will assess any further changes made to the
2016 Determination for their compatibility with international human rights
law.
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) |
| Previous report |
1 of 2017 |
| Status |
Concluded |
Background
2.221
The committee first reported on the instrument in its Report 1 of
2017, and requested a response from the Minister for Infrastructure and
Transport by 3 March 2017.[124]
2.222
The minister's response to the committee's inquiries was received on
3 March 2017. The response is discussed below and is reproduced in full at
Appendix 3.
Strict liability offences
2.223
The Aviation Transport Security Regulations 2005 [F2016C01035] and the
Maritime Transport and Offshore Facilities Security Regulations 2003 [F2016C00956]
(the regulations) establish the regulatory frameworks for the aviation security
identification card (ASIC) and the maritime security identification card (MSIC)
schemes.
2.224
Subregulation 6.06(5) of Schedule 1, Part 1 to the Transport Security
Legislation Amendment (Identity Security) Regulation 2016 [F2016L01656] (the regulation)
imposes a strict liability offence of 20 penalty units on an issuing body,[125]
which may be a natural person, in respect of an ASIC program where the issuing
body becomes aware of a change in a specified detail,[126]
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.
2.225
An equivalent offence is imposed on an issuing body[127]
by Schedule 2, Part 1, subregulation 6.07Q(5) of the regulation in respect of
an MSIC plan.
2.226
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.
2.227
The statement of compatibility for the regulation does not recognise
that the right to the presumption of innocence is engaged and limited by
imposing strict liability offences.
2.228
The committee drew to the attention of the minister 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.
2.229
The committee also noted that its Guidance Note 2 sets out
information specific to strict liability and absolute liability offences.
2.230
The committee therefore sought 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.
Minister's response
2.231
In his response, the minister stated that it is crucial that the
Department of Infrastructure and Regional Development (the department), as the
transport security regulator, has the most up-to-date contact information for
issuing bodies, noting that the regulations prescribe multiple circumstances
when the Secretary of the department 'must contact an issuing body, including
for security-sensitive purposes.'[128]
The minister also stated that:
The requirement for issuing bodies to update their contact
(or company) details is intrinsically linked to protecting aviation and
maritime infrastructure from unlawful interference (including terrorism).[129]
2.232
The minister also noted that since 2012 the department had consulted
with industry on changes to enhance issuing body practices, and specifically,
from 2014 to 2016, consulted with industry in respect of the draft regulation.
The minister noted that '[n]o issuing body expressed concern about the
inclusion of the offence in the new Regulation.'[130]
2.233
Whether or not industry agrees with the changes to the regulations does
not signify the compatibility of the measure with international human rights
law. However, as noted above, strict liability offences will not necessarily be
inconsistent with the presumption of innocence where they pursue a legitimate
objective, are rationally connected to that objective, and are a proportionate
means of achieving that objective.
2.234
While not directly addressed in the minister's response, the protection
of aviation and maritime infrastructure from unlawful interference, including
terrorism, appears to constitute a legitimate objective for the purpose of
international human rights law. Further explanation in the minister's response
as to why a strict liability offence rather than a regular offence provision
was necessary to address this apparent objective would have been useful to the
committee in assessing the human rights compatibility of the measure including
matters of proportionality.
2.235
However, on balance, given that the defence of mistake of fact will
still be available, the particular context of the offences and that the
penalties for these offences impose only a fine of 20 penalty units (rather
than imprisonment), it is likely that the limitation is proportionate to the
objective being sought.[131]
Committee response
2.236
The committee thanks the Minister for Infrastructure and Transport
for his response and has concluded its examination of this issue.
2.237
On balance the committee considers that the strict liability offence
in this case is likely to be compatible with the presumption of innocence.
Mr Ian Goodenough MP
Chair
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