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.
Biosecurity Amendment (Ballast Water and Other Measures) Bill 2017
Purpose |
Seeks
to amend the Biosecurity Act 2015 to |
Portfolio |
Agriculture
and Water Resources |
Introduced |
House
of Representatives, 15 February 2017 |
Rights |
Fair trial; presumption of
innocence (see Appendix 2) |
Previous report |
3 of 2017 |
Status |
Concluded examination |
Background
2.3
The committee first reported on the Biosecurity Amendment (Ballast Water
and Other Measures) Bill 2017 (the bill) in its Report 3 of 2017, and
requested a response from the Minister for Agriculture and Water Resources by 21
April 2017.[1]
2.4
The minister's response to the committee's inquiries was received on 1 May
2017. The response is discussed below and is reproduced in full at Appendix 3.
Strict liability offence
2.5
Proposed section 299A of the bill would introduce a strict liability
offence where the person in charge of or the operator of a vessel fails to make
a required report. The penalty for contravention of this section is 120 penalty
units ($21,600).
Compatibility of strict liability
offences with the right to be presumed innocent
2.6
The initial analysis noted that article 14(2) of the International
Covenant on Civil and Political Rights (ICCPR) protects the right to be
presumed innocent until proven guilty according to law. The right to be
presumed innocent usually requires that the prosecution prove each element of
the offence (including fault elements and physical elements). Strict liability
offences engage and limit the right to be presumed innocent as they allow for
the imposition of criminal liability without the need for the prosecution to
prove fault. In the case of a strict liability offence, the prosecution is only
required to prove the physical elements of the offence. The defence of honest
and reasonable mistake of fact is available to the defendant. Strict liability
may apply to whole offences or to elements of offences.
2.7
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. The committee's Guidance Note 2 sets out some
of the key human rights compatibility issues in relation to provisions that
create offences including that:
It is the committee's usual expectation that, where strict
liability and absolute liability criminal offences or elements are introduced,
legislation proponents should provide a human rights assessment of their
compatibility with the presumption of innocence, in accordance with Guidance
Note 1.[2]
2.8
The explanatory material accompanying the bill did not sufficiently
address whether the strict liability offence is a permissible limit on human
rights.
2.9
Accordingly, the committee sought the advice of the Minister for
Agriculture and Water Resources as to:
- whether the strict liability offence is aimed at achieving a
legitimate objective for the purposes of international human rights law;
-
how the strict liability offence is effective to achieve (that
is, rationally connected to) that objective; and
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective.
Minister's response
2.10
In relation to the questions raised by the committee, the minister's
response provides that:
The strict liability offence proposed by item 126 [proposed
section 299A] of the Bill is essential for enforcing the report of a disposal
of sediment where the disposal is:
-
for the purpose of ensuring the safety of the vessel in an
emergency or saving life at sea;
-
accidental; or
-
for the purpose of avoiding or minimising pollution from the
vessel.
The strict liability offence is compatible with the right to
be presumed innocent, as this information would be peculiarly within the
knowledge of the defendant. The defendant (the person in charge or the operator
of a vessel) will have access to the appropriate information, to detail why the
disposal of sediment was necessary due to safety, accident or pollution.
Further, it would be significantly more difficult and costly for the
prosecution to disprove than for the defendant to establish the circumstances
of the disposal, as the defendant (the person in charge or the operator of the
vessel) will have the easiest access to appropriate records to show that the
disposal related to safety, accident or pollution and that the requirement to
report has been met.
Disposal of sediment within Australian territorial seas could
pose a significant biosecurity risk, which may need to be managed and
monitored. Without the strict liability offence, a report of disposal of
sediment may not occur, making it difficult to identify any such biosecurity
risk. The requirement to report a disposal of sediment relating to safety
accident or pollution is necessary to manage the risk in an appropriate and
timely manner.
There is a strong public interest in appropriately managing
biosecurity risks and preventing serious damage to Australia's marine
environment and adverse effects to related industries. The strict liability
offence is necessary to achieve this legitimate policy objective because it
aims to deter a failure to report a disposal of sediment relating to safety,
accident or pollution.
2.11
Based on the detailed information provided, the measure appears likely
to be compatible with the right to be presumed innocent and the right to a fair
trial.
Committee response
2.12
The committee thanks the Minister for Agriculture and Water
Resources for his response and has concluded its examination of this issue.
2.13
In light of the additional information provided the committee
notes that the measure appears likely to be compatible with the presumption of
innocence and right to a fair trial. The committee notes that this information
would have been useful in the statement of compatibility.
Reverse burden offence
2.14
Proposed section 270 would provide that a person in charge or the
operator of a vessel contravenes the provision if the vessel discharges ballast
water (whether in or outside of Australian seas for Australian vessels, and in
Australian seas for foreign vessels). Proposed section 270(4) provides
exceptions (offence specific defence) to the offence under section 270, stating
that the offence does not apply if certain conditions are met and certain plans
are in place. The defendant carries an evidential burden in relation to these
exceptions.
Compatibility of reverse burden
offences with the right to be presumed innocent
2.15
As noted above, article 14(2) of the ICCPR protects the right to be
presumed innocent until proven guilty according to law. Generally, consistency
with the presumption of innocence requires the prosecution to prove each
element of a criminal offence beyond reasonable doubt.
2.16
The initial analysis explained that an offence provision which requires
the defendant to carry an evidential or legal burden of proof (commonly referred
to as 'a reverse burden') with regard to the existence of some fact engages and
limits the presumption of innocence.
2.17
Reverse burden offences will not necessarily be inconsistent with the
presumption of innocence provided that they are within reasonable limits which
take into account the importance of the objective being sought and maintain the
defendant's right to a defence.
2.18
The initial analysis also drew attention to the committee's Guidance
Note 2 which sets out the committee's usual expectation in relation to
reverse burden offences.[3]
2.19
The explanatory material accompanying the bill did not address these
matters. Accordingly, the committee sought the advice of the Minister for
Agriculture and Water Resources as to:
-
whether the reverse burden offence is aimed at achieving a
legitimate objective for the purposes of international human rights law;
-
how the reverse burden offence is effective to achieve (that is,
rationally connected to) that objective; and
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective.
Minister's response
2.20
In relation to the questions raised by the committee, the minister's
response relevantly provides that:
The exceptions set out by item 30 of the Bill are:
-
peculiarly within the knowledge of the defendant, as the
defendant (the person in charge or the operator of the vessel) will have access
to the appropriate information and documentation, such as the vessel's records,
to show that conditions have been fulfilled, such as the ballast water was
discharged at a water reception facility (section 277 of the Act), or that the
discharge was part of an acceptable ballast water exchange (section 282 of the
Act), and
-
it would be significantly more difficult and costly for the
prosecution to disprove than for the defendant to establish that the conditions
have been fulfilled, as the defendant (the person in charge or the operator of
the vessel) will have the easiest access to appropriate records to show that
conditions set out by the exception have been fulfilled.
The statement of compatibility in the Explanatory Memorandum
to the Biosecurity Bill 2014 discussed sections 271, 276, 277, 279, 282, and
283 of the Act, which provide exceptions to the offence of discharging ballast
water in Australian seas, as provided for in section 270 of the Act.
In relation to item 30 [proposed section 270(4)] of the Bill,
it remains necessary that the defendant (the person in charge or the operator
of the vessel) bears the evidential burden in order to achieve the legitimate
objective of ensuring the biosecurity risk associated with ballast water is
appropriately managed in Australian seas. The reversal of the evidential burden
of proof is reasonable and proportionate to the legitimate objective because
the knowledge of whether the defendant has evidence of the exception will be
peculiarly within their knowledge and comes within the terms for the reverse
burden provision to appropriately apply. For these reasons, the reversal of the
evidentiary burden of proof is a permissible limitation on human rights.
I also draw the Committee's attention to the revised
Explanatory Memorandum to the Bill that was tabled in the Senate on 29 March
2017. The revised Explanatory Memorandum included a revised statement of
compatibility, which addresses the reverse burden offence in proposed section
270 (item 30 of the Bill). The revised Explanatory Memorandum also contemplates
the government amendment to the Bill, which was introduced in and passed by the
House of Representatives on 28 March 2017.
2.21
Based on the information provided, the measure appears likely to be
compatible with the right to be presumed innocent and the right to a fair
trial.
Committee response
2.22
The committee thanks the Minister for Agriculture and Water
Resources for his response and has concluded its examination of this issue.
2.23
In light of the additional information provided the committee
notes that the measure appears likely to be compatible with the presumption of
innocence and right to a fair trial. The committee notes that this information
would have been useful in the statement of compatibility.
Competition and Consumer Amendment (Exploitation of Indigenous Culture)
Bill 2017
Purpose |
Seeks amend
Competition and Consumer Act 2010 to prevent non-First Australians and
foreigners from benefitting from the sale of Indigenous art, souvenir items and
other cultural affirmations |
Sponsor |
Mr
Bob Katter MP |
Introduced |
House
of Representatives, 13 February 2017 |
Rights |
Fair trial; presumption of
innocence (see Appendix 2) |
Previous report |
3 of 2017 |
Status |
Concluded examination |
Background
2.24
The committee first reported on the Competition and Consumer Amendment
(Exploitation of Indigenous Culture) Bill 2017 (the bill) in its Report
3 of 2017, and requested further information from the proponent of the bill
by 21 April 2017.[4]
2.25
The Private Member's response to the committee's inquiries was
received on 5 May 2017. The response is discussed below and is reproduced in
full at Appendix 3.
Strict liability offence
2.26
Proposed section 168A(1) would introduce a strict liability offence
where a person supplies, or offers to supply, a thing that includes an
'indigenous cultural expression'. The penalty for contravention of this section
is a maximum of $25,000 for an individual (approximately 138 penalty units) and
$200,000 for a body corporate (approximately 1110 penalty units).
Compatibility of strict liability
offences with the right to be presumed innocent
2.27
The initial analysis noted that article 14(2) of the International
Covenant on Civil and Political Rights (ICCPR) protects the right to be
presumed innocent until proven guilty according to law. The initial analysis
stated the concerns ordinarily raised by strict liability offences in relation
to the presumption of innocence (also set out above at [2.6]).
2.28
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. The initial analysis also drew attention to the committee's
Guidance Note 2 which sets out the committee’s usual expectation in
relation to strict liability offences.[5]
2.29
The statement of compatibility did not sufficiently address whether the
strict liability offence is a permissible limit on human rights. Accordingly,
the committee sought the advice of the legislation proponent as to:
-
whether the strict liability offence is aimed at achieving a
legitimate objective for the purposes of international human rights law;
-
how the strict liability offence is effective to achieve (that
is, rationally connected to) that objective; and
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective.
Legislation proponent's response
2.30
In relation to the strict liability offence, Mr Katter's response
stated:
The proposed section 168A(3) sets out that the offence in
proposed section 168A(1) is a strict liability offence, subject to the
offence-specific defence in proposed section 168A(2). Proposed section 168A(1)
makes it an offence for a person to supply or offer to supply a thing to a
consumer, which is supplied or offered to be supplied in trade and commerce,
and where the thing is an Indigenous cultural expression.
This strict liability offence is not inconsistent with the
presumption of innocence contained in Article 14(2) of the International
Covenant on Civil and Political Rights ('ICCPR') because the offence is proportionate
to and rationally connected with the pursuit of a legitimate objective. It is
therefore a permissible limitation on this right.
2.31
The response addresses each of the committee's questions about whether
the limitation imposed is permissible. In relation to the objective of the
measure the response states:
a. Legitimate Objective for the Purposes of International
Human Rights Law
This legitimate objective is set out in the explanatory
memorandum to the Bill. "The purpose of the Bill is to prevent non-First
Australians and foreigners from benefitting from the sale of Indigenous art,
souvenir items and other cultural affirmations and thereby depriving Aboriginal
and Torres Strait Islanders of the rightful benefits of their culture."
This is a legitimate objective because it aims to address
concerns regarding an influx of mass-produced Indigenous-style artwork,
souvenirs and other cultural affirmations which purports to be and is sold as
authentic Australian indigenous art. Throughout 2016 the Indigenous Art Code
and the Arts Law Centre conducted a joint investigation into the sale of
Indigenous art or products bearing Indigenous cultural expressions in
Australia. From that study, the Arts Law Centre estimates that 'up to 80% of
items being sold as legitimate Indigenous artworks in tourist shops around
Australia are actually inauthentic.' This led to the 'Fake Art Harms Culture'
campaign. The crux of the fake art issue for Indigenous persons is that their
culture is being exploited for sale without their consent and arguably sold
under false pretences.
In addition, the objective the Bill seeks to achieve is
consistent with and in furtherance of Article 11(1) of the United Nations
Declaration on the Rights of Indigenous Peoples. Article 11(1) sets out that:
Indigenous
peoples have the right to practice and revitalize their cultural traditions and
customs. This includes the right to maintain, protect and develop the past,
present and future manifestations of their cultures, such as archaeological and
historical sites, artefacts, designs, ceremonies, technologies and visual and
performing arts and literature.
The objective of the Bill is legitimate because it seeks to
promote the rights of Indigenous peoples to protect and develop past, present
and future manifestations of their culture. By allowing the supply of
Indigenous cultural expressions by persons other than Aboriginal and Torres
Strait Islanders, the meaning and authenticity of Indigenous cultural
expressions are undermined and devalued.
2.32
Accordingly, the response provides a range of information and evidence
as to why the measure pursues a legitimate objective for the purpose of
international human rights law.
2.33
In relation to whether the measure is rationally connected to this
legitimate objective, the response provides that:
b. Rational Connection to the Objective
The strict liability offence is effective to achieve the
above objective because it seeks to limit the circumstances in which a person
may supply or offer to supply an Indigenous cultural expression.
This is directly related to the protection of Indigenous
culture because it will prevent the supply of artefacts, literature of artwork
that is unrepresentative of Indigenous culture. It will also ensure that the
authenticity of such cultural expressions is retained, thus protecting the
past, present and future manifestation of Indigenous culture.
2.34
In relation to whether the measure is a proportionate means of achieving
the legitimate objective of the measure the response states:
c. Reasonable and Proportionate Means of Achieving the Objective
The inclusion of a strict
liability offence
is a reasonable means of achieving the
objective because requiring the prosecution to prove the existence of a fault
element, such as "intention", "recklessness" etc. would not adequately protect
Indigenous persons, Indigenous communities and
consumers from exploitation. This is because the conduct prohibited by
the Bill has the
potential to cause widespread
detriment to Indigenous communities both financially and culturally. It
also has the potential to cause significant
loss to consumers. Many consumers purchase
Indigenous art or products bearing Indigenous cultural
expression
in Australia on the understanding that the item they are purchasing is an authorised item or does in fact bear an Indigenous cultural expression.
The strict liability approach is
consistent with other provisions of the Australian Consumer Law, including
those in respect of unfair practices (the section which the Bill proposes to
amend). As outlined in the Explanatory Memorandum to the Australian Consumer
Law:
The strict liability nature of these offences reflects the
potential for widespread detriment, both financially for individual consumers
and for its effect on the market and consumer confidence more generally, that
can be caused by a person that breaches these provisions, whether or not he,
she or it intended to engage in the contravention.
The absence of a fault element
with respect to the offence is also reasonable in light of Article 11(2) of the
United Nations Declaration on the Rights of Indigenous Peoples. Article 11(2)
sets out that:
States shall provide redress through effective mechanisms, which
may include restitution, developed in conjunction with indigenous peoples, with
respect to their cultural, intellectual, religious and spiritual property taken
without their free, prior and informed consent or in violation of their laws,
traditions and customs.
This right is set out in terms of
requiring redress with respect to cultural and spiritual property taken without
prior consent. This therefore suggests that creating a strict liability offence
is appropriate in these circumstances because it is not difficult for suppliers
to ensure they know whether or not the Indigenous cultural expression that they
supply is made by or made with the consent of an Indigenous artist and
Indigenous community. It simply requires the supplier to ask the producer for certification
or confirmation. If the offence was not framed in terms of strict liability but
instead required a fault element such as "intention" or
"recklessness" this would allow defendants to escape liability in
instances where prior consent was not obtained (thus undermining the rights of Indigenous
persons as contained in Article 11(2)).
The strict liability offence is
also a proportionate means of achieving the above objective because in addition
to the defence of an honest and reasonable mistake still being available to a
defendant, there is also an offence-specific defence in proposed section
168A(2). This defence provides that where a person has entered into an
arrangement with each Indigenous community and Indigenous artist with whom the
Indigenous cultural expression is connected, this will not constitute an
offence under proposed section 168(1).
Additionally, the strict
liability offence is appropriate and proportionate because:
- the offence is not punishable
by imprisonment. The Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement Powers outlines that it is only appropriate for
strict liability to apply if the offence is not punishable by imprisonment and
that is the case here;
- while the fine imposed is
higher than that recommend in the Guide, these fines are consistent with other
fines imposed for strict liability offences under the Australian Consumer Law;
and
- the offence is narrow and
easily capable of avoidance. Suppliers can readily obtain information regarding
the origin of products that they supply and should be encouraged to do so. The
defence of reasonable mistake of fact in section 207 of the Australian Consumer
Law will also help to protect suppliers which rely on information provided to
them when they acquire the art for resale.
2.35
Based on the comprehensive information provided in the response, the
strict liability offence appears to be rationally connected to, and a
proportionate means of achieving, its legitimate objective. Accordingly, the
strict liability offence is likely to be compatible with the right to be
presumed innocent.
Committee comment
2.36
The committee has concluded its examination of this issue.
2.37
The committee notes that strict liability offences engage and
limit the right to be presumed innocent. However, based on the information
provided by the legislation proponent, the strict liability offence is likely
to be compatible with this right.
Reverse burden offence
2.38
Proposed section 168A(2) provides an exception to the offence proposed
in section 168A(1), so that it is a defence if a thing with an 'indigenous
cultural expression' is supplied by, or in accordance with an arrangement with,
each indigenous community and indigenous artist with whom the indigenous
cultural expression is connected. The defendant carries an evidential burden in
relation to this exception.
Compatibility of reverse burden
offences with the right to be presumed innocent
2.39
As noted above, article 14(2) of the ICCPR protects the right to be
presumed innocent until proven guilty according to law. Generally, consistency
with the presumption of innocence requires the prosecution to prove each
element of a criminal offence beyond reasonable doubt.
2.40
The initial analysis explained that an offence provision which requires
the defendant to carry an evidential or legal burden of proof (commonly referred
to as 'a reverse burden') with regard to the existence of some fact engages and
limits the presumption of innocence.
2.41
Reverse burden offences will not necessarily be inconsistent with the
presumption of innocence provided that they are within reasonable limits which
take into account the importance of the objective being sought and maintain the
defendant's right to a defence.
2.42
The initial analysis also drew attention to the committee's Guidance
Note 2 which sets out the committee’s usual expectation in relation to
reverse burden offences.[6]
2.43
The statement of compatibility did not address whether the reverse
burden offence is a permissible limit on human rights. Accordingly, the
committee sought the advice of the legislation proponent as to:
-
whether the reverse burden offence is aimed at achieving a
legitimate objective for the purposes of international human rights law;
-
how the reverse burden offence is effective to achieve (that is,
rationally connected to) that objective; and
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective.
Legislation proponent's response
2.44
In relation to the reverse burden offence, Mr Katter provided the
following information:
The offence in proposed section 168A(1)-(2) reverses the
burden of proof and places the onus on the defendant to prove their innocence.
The proposed offence requires the defendant to prove that the thing was supplied
by, or in accordance with an arrangement with, each Indigenous community and
Indigenous artist with whom the Indigenous cultural expression is connected.
Whilst the Committee notes that consistency with the presumption of innocence
in Article 14(2) of the ICCPR generally requires the prosecution to prove each
element of the offence beyond a reasonable doubt, proposed section 168A(1)-(2)
is not inconsistent with the right to be presumed innocent because it is a
permissible limitation on this right.
There is substantial overlap between the analysis above
regarding the strict liability offence in proposed section 168A(3) and the
analysis below with respect to the reverse burden offence in proposed section
168A(1)‑(2).
2.45
The response addresses each of the committee's questions about whether
the limitation imposed is permissible. In relation to the objective of the
measure the response states:
a. Legitimate Objective for the Purposes of International
Human Rights Law
The legitimate objective is the same as outlined above with
respect to the strict liability offence and is reflected in the explanatory
memorandum to the Bill.
2.46
As noted above, this is likely to constitute a legitimate objective for
the purposes of international human rights law.
2.47
In relation to whether the measure is rationally connected to this
legitimate objective, the response provides that:
b. Rational Connection to the Objective
The reverse burden offence is effective to achieve the
legitimate objective because it seeks to limit the circumstances in which a
person may supply or offer to supply an Indigenous cultural expression.
This is directly related to the protection of Indigenous
culture because it will prevent the supply of artefacts, literature or artwork
that is unrepresentative of Indigenous culture. It will also ensure that the
authenticity of such cultural expressions is retained, thus protecting the
past, present and future manifestation of Indigenous culture.
Article 31 of the United Nations Declaration on the Rights of
Indigenous Peoples sets out that "Indigenous peoples have the right to
maintain, control, protect and develop their cultural heritage, traditional l
knowledge and traditional cultural expressions". This right is given to
Indigenous peoples, not any other peoples. Consequently the requirement to seek
permission from Indigenous communities and Indigenous artists ensures that they
have ultimate control over their traditional cultural expressions. To permit
otherwise could lead to adverse impacts on Indigenous culture through the
propagation of Indigenous cultural expressions that are incorrect according to
traditional knowledge. This could lead to the erosion or desecration of
traditional practices and the inaccurate portrayal of cultural expressions such
as Indigenous dance or art. Consequently in these circumstances there is a
rational connection between the reverse burden of proof and the objective of
preventing non-Indigenous Australians from benefitting from the sale of
Indigenous cultural expressions and undermining Indigenous culture. In this
respect, providing Indigenous Australians with the ability to control the
supply of their traditional cultural expressions respects the rights provided
to them by the United Nations Declaration on the Rights of Indigenous Peoples.
2.48
In relation to whether the measure is a proportionate means of achieving
the legitimate objective of the measure the response states:
c. Reasonable and Proportionate Means of Achieving the
Objective
The offence-specific defence, that imposes a burden of proof
on the defendant, is a reasonable and proportionate means of achieving the
objective of the Bill because:
the requirement for consent provides the best protection to
Indigenous communities and artists. The fact that suppliers are commercialising
Indigenous cultural expressions without obtaining any consent places Indigenous
communities and artists in a position of vulnerability and exploitation. This
defence focusses on the key issue - whether the relevant Indigenous community
and artist has consented to the commercialisation of the indigenous cultural
expression with which the community and artist is associated;
this defence (and the legal burden associated with it) is
appropriate because the consent or licensing arrangements in place for the supply
of the art is peculiarly within the knowledge of the defendant. It would be a
difficult and costly exercise for the prosecution to disprove consent and would
necessarily require the prosecution to ensure that no Indigenous person or
community had granted consent to the defendant. Such a burden would be
unreasonable and make the offence difficult to establish. By contrast, it does
not impose any significant burden on the defendant - if they have obtained
consent to use the Indigenous cultural expression in the manner in which they
have, they should be able to establish this without any real difficulty. If
they have acquired the art or products bearing the Indigenous cultural
expression from a wholesaler, they can make it a condition of the wholesale purchase
that the wholesaler provides evidence of consent.
This approach is consistent with the Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement Powers which
relevantly provides that "where a matter is peculiarly within the
defendant's knowledge and not available to the prosecution, it may be
legitimate to cast the matter as a defence". The Guide also relevantly
provides in this respect:
"...the
[Scrutiny of Bills] Committee has indicated that it may be appropriate for the
burden of proof to be placed on a defendant where the facts in relation to the
defence might be said to be peculiarly within the knowledge of the defendant,
or where proof by the prosecution of a particular matter would be extremely
difficult or expensive whereas it could be readily and cheaply provided by the
accused."
2.49
Based on the comprehensive information provided in the response, the
reverse burden offence appears to be rationally connected to, and a
proportionate means of achieving, its legitimate objective. Accordingly, the
reverse burden offence is likely to be compatible with the right to be presumed
innocent.
Committee comment
2.50
The committee notes that reverse burden offences engage and limit
the right to be presumed innocent. However, based on the information provided
by the legislation proponent, the reverse burden offence is likely to be
compatible with this right.
Crimes Legislation Amendment (International Crime Cooperation and Other
Measures) Bill 2016
Purpose |
Seeks to amend a number of
Acts relating to the criminal law, law enforcement and background checking to
including to ensure Australia can respond to requests from the International
Criminal Court and international war crimes tribunals; amend the provisions
on proceeds of crime search warrants, clarify which foreign proceeds of crime
orders can be registered in Australia and clarify the roles of judicial
officers in domestic proceedings to produce documents or articles for a
foreign country, and others of a minor or technical nature; ensure
magistrates, judges and relevant courts have sufficient powers to make orders
necessary for the conduct of extradition proceedings; ensure foreign evidence
can be appropriately certified and extend the application of foreign evidence
rules to proceedings in the external territories and the Jervis Bay
Territory; amend the vulnerable witness protections in the Crimes Act 1914;
clarify the operation of the human trafficking, slavery and slavery-like
offences in the Criminal Code Act 1995; amend the reporting
arrangements under the War Crimes Act 1945 |
Portfolio |
Justice |
Introduced |
House of Representatives,
23 November 2016 |
Rights |
Privacy; fair trial and
fair hearing (see Appendix 2) (see Appendix 2) |
Previous report |
2 of 2017 |
Status |
Concluded examination |
Background
2.51
The committee first reported on the Crimes Legislation Amendment
(International Crime Cooperation and Other Measures) Bill 2016 (the bill) in
its Report 2 of 2017, and requested a response from the Minister for
Justice by 13 April 2017.[7]
2.52
The minister's response to the committee's inquiries was received on 27
April 2017. The response is discussed below and is reproduced in full at Appendix 3.
Proceeds of crime
2.53
Part 8 of Schedule 1 of the bill seeks to amend the International
Criminal Court Act 2002 and the International War Crimes Tribunals
Act 1995 in relation to existing proceeds of crime provisions. This
includes amendments to the authorisation process for proceeds of crime tools
and the availability of a range of investigative and restraint tools in respect
of an investigation or prosecution at the International Criminal Court (ICC), an
International War Crimes Tribunal (IWCT) and to apply in the foreign context.
It also seeks to enhance the process for seeking restraining orders and giving
effect to forfeiture orders. The proceeds of crime provisions referred to in these
Acts make use of the proceeds of crime framework established by the Proceeds
of Crime Act 2002 (POC Act).
2.54
Schedule 2 of the bill seeks to ensure that the provisions of the
proceeds of crime investigative tools in the Mutual Assistance in Criminal
Matters Act 1987 (MA Act) align, and are consistent, with the POC
Act or are modified appropriately for the foreign context. It seeks to clarify
the types of foreign proceeds of crime orders to which the MA Act applies. It
also provides that the MA Act applies to interim foreign proceeds of crime
orders issued by non-judicial government bodies. The explanatory memorandum
states that proposed item 33 of the bill will confirm the existing provision
that the definition of 'foreign restraining order' is not limited to orders
made by a court, which 'reflects the fact that in some countries restraining
orders may be issued by bodies other than courts, such as investigative or
prosecutorial agencies'.[8]
Compatibility of the measure with
fair trial and fair hearing rights
2.55
The initial human rights analysis noted that the statement of
compatibility states that the amendments in Schedule 2 engage the right to
a presumption of innocence, as the MA Act permits the Attorney‑General to
authorise a proceeds of crime authority to apply to register foreign
restraining orders, which could allow a person's property to be restrained,
frozen, seized or taken into official custody before a finding of guilt has
been made. However, the statement of compatibility states that the proposed amendments
will not limit a person's right to a presumption of innocence.[9]
The statement of compatibility does not examine the compatibility of the
measures in Schedule 1 with the right to a fair trial and fair hearing.
2.56
The statement of compatibility explains that the amendments are intended
to ensure 'Australia can provide the fullest assistance to the ICC and IWCT in
investigating and prosecuting the most serious of crimes and taking proceeds of
crime action'.[10]
This would appear to be a legitimate objective for the purposes of
international human rights law, and the measures would appear to be rationally
connected to achieving that objective.
2.57
The statement of compatibility states that, in relation to the proposed
amendment to the MA Act in Schedule 2, the Attorney-General's decision to
assist a foreign country with registering a foreign restraining order 'will be
subject to the safeguards in the MA Act, including all of the mandatory and
discretionary grounds for refusal in section 8 of the MA Act' and 'the courts
will retain the discretion to refuse to register the order if it is satisfied
that it would be contrary to the interests of justice to do so'.[11]
2.58
The initial human rights analysis noted that the committee has previously
stated that the MA Act raises serious human rights concerns and that it would
benefit from a full review of the human rights compatibility of the
legislation.[12]
The committee has also raised concerns regarding the POC Act. In particular,
the initial analysis noted that the committee has previously raised concerns
about the right to a fair hearing and noted that asset confiscation may be
considered criminal for the purposes of international human rights law, and in
particular the right to a fair trial. As the committee's previous analysis
noted:
...the POC Act was introduced prior to the establishment of the
committee and therefore before the requirement for bills to contain a statement
of compatibility with human rights. It is clear that the POC Act provides law
enforcement agencies [with] important and necessary tools in the fight against
crime in Australia. Assessing the forfeiture orders under the POC Act as
involving the determination of a criminal charge does not suggest that such
measures cannot be taken – rather, it requires that such measures are
demonstrated to be consistent with the criminal process rights under articles
14 and 15 of the [International Covenant on Civil and Political Rights].[13]
2.59
The committee previously recommended that the Minister for Justice
undertake a detailed assessment of the POC Act to determine its compatibility
with the right to a fair trial and right to a fair hearing. In his recent response
to the committee in respect of the Law Enforcement Legislation Amendment (State
Bodies and Other Measures) Bill 2016, the minister stated he did not consider
it necessary to conduct an assessment of the POC Act to determine its
compatibility with the right to a fair trial and fair hearing as legislation
enacted prior to the enactment of the Human Rights (Parliamentary Scrutiny) Act
2011 is not required to be subject to a human rights compatibility
assessment, and the government continually reviews the POC Act as it is
amended.[14]
2.60
Despite this, the existing human rights concerns with the POC Act and
the MA Act mean that any extension of the provisions in those Acts by this bill
raise similar concerns as those previously identified. The initial analysis
stated that it would therefore be of considerable assistance if these Acts were
subject to a foundational human rights assessment.
2.61
In addition, the amendments in item 33 of Schedule 2 provide that an
order made under the law of a foreign country—whether made by a court or not—restraining,
freezing or directing the seizure or control of property is enforceable in
Australia. This is so regardless of whether the person whose property is to be
restrained, frozen or seized has been accorded a fair hearing before the order
was made. The explanatory memorandum states that this amendment confirms the
existing position that the registration of a foreign restraining order is not
limited to orders made by a court, which reflects 'the fact that in some
countries restraining orders may be issued by bodies other than courts, such as
investigative or prosecutorial agencies'.[15]
The explanatory memorandum states that the Attorney‑General has a
discretion whether to authorise the registration of orders and may consider 'the
nature of the body issuing the order' in exercising that discretion.[16]
2.62
The initial analysis noted that the registration and enforcement of
foreign restraining orders and foreign forfeiture orders under Australian law,
without any oversight of the process by which such orders were made, raises
questions about the compatibility of the measures with the right to a fair
hearing and fair trial. This is particularly acute in relation to the
registration of foreign restraining orders made by non-judicial bodies. While
the Attorney-General retains a broad discretion to refuse to grant assistance
under the MA Act, the existence of a ministerial discretion is not in itself a
human rights safeguard. As the committee has previously noted, while the
government may have an obligation to ensure that the law is applied in a manner
that respects human rights, the law itself must also be consistent with human
rights.[17]
As the UN Human Rights Committee has explained:
[t]he laws authorizing the application of restrictions should
use precise criteria and may not confer unfettered discretion on those charged
with their execution.[18]
2.63
The initial analysis stated that while this bill does not substantially
amend the provisions of the POC Act or the MA Act or the application process,
human rights concerns remain in relation to these existing Acts. In addition,
specifically providing in the bill that a foreign restraining order does not
need to be made by a court raises serious concerns about the right to a fair
hearing before a person's private property is frozen, seized or subject to
restraint.
2.64
The committee reiterated its earlier comments that the proceeds of crime
legislation provides law enforcement agencies with important and necessary
tools in the fight against crime. However, it also raises concerns regarding
the right to a fair hearing and the right to a fair trial. The committee reiterated
its previous view that both the MA Act and the POC Act would benefit from a
full review of the human rights compatibility of the legislation and drew these
matters to the attention of the Parliament.
Minister's response
2.65
The minister provided the following information in response to the
committee's comments:
The Government continually reviews the Mutual Assistance
in Criminal Matters Act 1987 and the Proceeds of Crime Act 2002 and
will continue to undertake human rights compatibility assessments where
Bills amend those Acts.
The Government reiterates that proceeds of crime orders are
classified as civil under section 315 of the Proceeds of Crime Act and
do not involve the determination of a criminal charge or the imposition
of a criminal penalty.
As the Acts were enacted before the Human Rights
(Parliamentary Scrutiny) Act 2011, they were not required to be subject to
a human rights compatibility assessment.
2.66
It is understood that the MA Act and the POC Act were legislated prior
to the to the establishment of the committee, and for that reason, were never
required to be subject to a foundational human rights compatibility assessment
in accordance with the terms of the Human Rights (Parliamentary Scrutiny)
Act 2011. However, in light of the existing human rights concerns with the POC
Act and the MA Act, any extension of the provisions in those Acts requires an
assessment of how such measures interact with existing provisions. It would
therefore be of considerable assistance if these Acts were subject to a foundational
human rights assessment.
Committee response
2.67
The committee thanks the Minister for Justice for his response
and has concluded its examination of this issue.
2.68
The preceding analysis indicates that extensions to the Mutual
Assistance in Criminal Matters Act 1987 and the Proceeds of Crime Act
2002 could raise concerns regarding the right to a fair hearing and the
right to a fair trial.
2.69
The committee reiterates its previous view that both the Mutual
Assistance in Criminal Matters Act 1987 and the Proceeds of Crime Act
2002 would benefit from a full review of the human rights compatibility of
the legislation.
2.70
The committee draws these matters to the attention of the
Parliament.
Person awaiting surrender under extradition warrant must be committed to
prison
2.71
Schedule 3 of the bill seeks to amend the Extradition Act 1988 (Extradition Act)
to provide that where a person has been released on bail and a surrender or
temporary surrender warrant for the extradition of the person has been issued,
the magistrate, judge or relevant court must order that the person be
committed to prison to await surrender under the warrant.
Compatibility of the measure with
the right to liberty
2.72
The initial human rights analysis noted that the right to liberty is a
procedural guarantee not to be arbitrarily and unlawfully deprived of liberty,
which requires that detention must be lawful, reasonable, necessary and
proportionate in all the circumstances. An obligation on courts to order that a
person be committed to prison to await surrender under an extradition warrant
engages and limits the right to liberty.
2.73
The statement of compatibility acknowledges that the right to liberty is
engaged by this measure but states that the limitation on the right is
reasonable and necessary 'given the serious flight risk posed in extradition
matters and Australia's obligations to secure the return of alleged offenders
to face justice'.[19]
It also states that the power to remand a person pending extradition
proceedings is necessary as reporting and other bail conditions 'are not always
sufficient to prevent individuals who wish to evade extradition by absconding'.[20]
2.74
The initial analysis noted that measures to ensure a person does not
evade extradition are likely to be a legitimate objective for the purposes of
international human rights law, and the measures appear to be rationally
connected to that objective. However, in relation to whether the limitation on
the right to liberty is proportionate to the objective sought to be achieved,
the question arises as to why the power of the court to commit a person to
prison is phrased as an obligation to commit the person to prison,
without any discretion as to whether this is appropriate in all the
circumstances.
2.75
The statement of compatibility states that it is appropriate that the
person be committed to prison to await surrender as an extradition country has
a period of two months in which to effect surrender and '[c]orrectional
facilities are the only viable option for periods of custody of this duration'.[21]
It states that without this provision the police may need to place the person
in a remand centre, for a period of up to two months, yet remand centres 'do
not have adequate facilities to hold a person for longer than a few days.'[22]
It also goes on to provide that the Extradition Act makes bail available
in special circumstances which ensures that 'where circumstances justifying
bail exist, the person will not be kept in prison during the extradition
process'.[23]
However, it is unclear how these existing bail provisions fit with the proposed
amendments which require the magistrate, judge or court to commit a
person, already on bail, to prison to await surrender under the warrant.
2.76
The committee therefore sought the advice of the Minister for Justice as
to why the provisions enabling a magistrate, judge or court to commit a person
to prison to await surrender under an extradition warrant are framed as an
obligation on the court rather than a discretion and how the existing bail
process under the Extradition Act fits with the amendments proposed by
this bill.
Minister's response
2.77
In relation to why the measure places an obligation (rather than
discretion) on the court to commit a person to prison, the following
information is provided by the minister:
The amendments to sections 26 and 35 of the Extradition Act
address the logistics for the execution of a surrender warrant when a person is
on bail and a surrender warrant has been issued to surrender the person to an
extradition country. The surrender warrant is the instrument that empowers the
police to bring an eligible person into custody to await transportation out of
Australia.
The amendments to sections 26 and 35 do not affect the existing
framework for bail under the Extradition Act. In the extradition context, a
magistrate must not release a person on bail unless there are special
circumstances justifying such release. The presumption against bail is
appropriate given the serious flight risk posed in extradition matters and
Australia’s international obligations to secure the return of alleged offenders
to face justice in the requesting country. The requirement to demonstrate
‘special circumstances’ justifying release provides suitable flexibility to
accommodate exceptional circumstances that may necessitate granting a person
bail (such as where the person is in extremely poor health).
The Extradition Act does not provide for a person to apply to
have their bail extended following the issuing of a surrender warrant and while
the person awaits surrender to the requesting country. The amendment clarifies
that, following a discharge of bail recognisances, a magistrate, eligible
Federal Circuit Court Judges or relevant court is to remand the person to
prison to await surrender. The amendment is framed as an obligation on [sic] to
reflect the unavailability of bail pending logistical arrangements for
surrender to the requesting country. If a person seeks to challenge the surrender
determination by way of judicial review, the person is able to make a new bail
application under section 49C of the Extradition Act to the relevant review or
appellate Court. Under section 49C(2) of the Extradition Act a grant of
bail by a review or appellate Court terminates each time such a Court has
upheld the surrender determination.
2.78
The minister's response clarifies that the proposed measure, which
obliges a person to be committed to prison, relates to circumstances where a
surrender warrant has been issued and where the person awaits surrender or
transfer to the requesting country. As outlined in the response, some
safeguards exist in relation to the measure and there is some capacity for an
individual to apply for bail should they seek judicial review in relation to
the issue of the surrender warrant.
2.79
However, even in circumstances where a person awaits surrender, it is
unclear that an obligation for that person to be committed to prison represents
the least rights restrictive approach. While there may be some circumstances
where an individual poses an unacceptable flight risk such that imprisonment is
necessary, it is unclear that each individual awaiting transfer would represent
such a risk. Nor is it clear why particular conditions of bail are not adequate
to address such risks in relation to individuals. Noting that an extradition
country has two months from the issue of the surrender warrant to effect
surrender, a person may be deprived of their liberty in prison for an extended
period of time. As set out in the minister's response, it appears that there is
no general ability for a person to apply to have their bail extended following
the issue of the surrender warrant regardless of their individual
circumstances. It follows that there is a risk that the measure is not a
proportionate limit on the right to liberty. This is because in order for a
deprivation of liberty to be permissible it must be reasonable, necessary and
proportionate in the individual case.
2.80
The minister's response also explains that under the Extradition Act
there is currently a presumption against bail unless a 'special circumstance'
exists. This also raises concerns in relation to the right to liberty under the
Extradition Act more broadly as the deprivation of liberty may not be
reasonable, necessary and proportionate in the individual case. In this respect
it is noted that the Extradition Act was legislated prior to the
establishment of the committee, and for that reason, has never been required to
be subject to a foundational human rights compatibility assessment in
accordance with the terms of the Human Rights (Parliamentary Scrutiny) Act
2011. In light of the issues raised in the minister's response and by the
amendments, the Extradition Act may benefit from a full review of its human
rights compatibility.
Committee response
2.81
The committee thanks the Minister for Justice for his response
and has concluded its examination of this issue.
2.82
The preceding analysis indicates that the measure may not be the
least rights restrictive in each individual case noting that the measure
obliges a court to commit a person awaiting transfer to prison regardless of
their individual circumstances. This means that there is a risk that the
measure is not a proportionate limit on the right to liberty.
2.83
The committee considers that the Extradition Act 1988 would
benefit from a full review of the human rights compatibility of the
legislation.
Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016
Purpose |
Seeks to amend the Migration
Act 1958 to: harmonise and streamline Part 5 and Part 7 of the Act
relating to merits review of certain decisions; make amendments to certain
provisions in Part 5 of the Act to clarify the operation of those provisions;
clarify the requirements relating to notification of oral review decisions;
and make technical amendments to Part 7AA of the Act |
Portfolio |
Immigration and Border
Protection |
Introduced |
House of Representatives,
30 November 2016 |
Rights |
Non-refoulement; fair
hearing; effective remedy (see Appendix 2) |
Previous report |
2 of 2016 |
Status |
Concluded examination |
Background
2.84
The committee first reported on Migration Legislation Amendment (Code of
Procedure Harmonisation) Bill 2016 (the bill) in its Report 2 of 2017, and
requested a response from the Minister for Immigration and Border Protection by
13 April 2017.[24]
2.85
No response was received to the committee's request by that date. Accordingly,
the committee's concluding remarks on the bill are based on the information
available at the time of finalising this report.[25]
2.86
The bill relates to the schedules of the Tribunals Amalgamation
Act 2015,[26]
which commenced on 1 July 2015. That Act merged key commonwealth merits review
tribunals, including the former Migration Review Tribunal and Refugee Review
Tribunal (RRT), into the Administrative Appeals Tribunal (AAT).
2.87
The bill consolidates Parts 5 and 7 of the Migration Act 1958
(Migration Act) into an updated Part 5 of the Migration Act in respect of
reviewable decisions by the Migration and Refugee Division (MRD) of the AAT.
2.88
Certain parts of the bill therefore reintroduce existing measures, some
of which have previously been considered by the committee.[27]
Limited review of decisions in respect of grant or cancellation of
protection visas
2.89
Proposed section 338A, which defines a 'reviewable refugee decision', is
proposed to be inserted into the Migration Act by Schedule 4, Part 1, item 34
of the bill. This new section largely mirrors the provisions contained in
existing section 411 of the Act.
2.90
Proposed subsection 338A(2) defines what is a 'reviewable refugee
decision', which includes a decision to refuse to grant or to cancel a
protection visa. However, a decision to refuse to grant or to cancel a
protection visa is not classified as a reviewable decision if it was made on a
number of specified grounds, relating to criminal convictions or security risk
assessments.[28]
As such, decisions made on such grounds are not reviewable by the MRD. In
addition, subsection 338A(1) provides that a number of reviewable refugee
decisions are excluded from review on specified grounds, including:
-
that the minister has issued a conclusive certificate in relation
to the decision, on the basis that the minister believes it would be contrary
to the national interest to change or review the decision;
-
that the decision to cancel a protection visa was made by the
minister personally; and
-
that the decision is a 'fast track decision' (A 'fast track
decision' is a decision to refuse to grant a protection visa to certain
applicants,[29]
for which a very limited form of review is available under Part 7AA of the Act.)[30]
2.91
As such, there is a range of decisions relating to the grant or
cancellation of protection visas that are either not subject to any merits
review (in relation to ministerial decisions to refuse to grant or to cancel
protection visas on certain grounds) or which are subject to very limited
review (in the case of fast track decisions).
Compatibility of the measure with the right to non-refoulement and
the right to an effective remedy
2.92
The obligation of non-refoulement requires that Australia must not
return any person to a country where there is a real risk that they would face
persecution, torture or other serious forms of harm, such as the death penalty;
arbitrary deprivation of life; or cruel, inhuman or degrading treatment or
punishment (see Appendix 2).[31]
Non-refoulement obligations are absolute and may not be subject to any
limitations.
2.93
Effective, independent and impartial review by a court or tribunal of
decisions to deport or remove a person (in the Australian context including
merits review), is integral to giving effect to non-refoulement obligations.[32]
2.94
As noted in the initial analysis the measure engages the right to
non-refoulement and the right to an effective remedy as it fails to ensure
sufficient procedural and substantive safeguards apply to ensure a person is
not removed in contravention of the obligation of non-refoulement.[33] The right to
non-refoulement is an absolute right: it cannot be subject to any permissible
limitations.
2.95
The statement of compatibility identifies that the right to
non-refoulement:
[is] arguably engaged
as the amendments go to the review of decisions made under the Migration Act,
including review of decisions in relation to protection visa applicants or
former protection visa holders, and may impact on whether such applicants or
former visa holders, depending on the outcome of the review, may become liable
for removal from Australia.[34]
2.96
The initial analysis noted that the statement of compatibility provides
that the amendments proposed by the bill 'preserve the existing merits review
framework without removing or otherwise diminishing a visa applicant or former
visa holder's access to merits review of a refusal or cancellation decision in
relation to them.'[35]
However, the committee's role is to examine all bills introduced into
Parliament for compatibility with human rights,[36] an assessment which must
take place regardless of whether the bill reflects the existing law (which may
or may not have been subject to a human rights compatibility assessment when
introduced).
2.97
In respect of the right to an effective remedy, the statement of
compatibility states that as there is no general right or entitlement to hold a
visa to enter or remain in Australia, a decision to refuse or cancel a visa is
not a violation of a person's rights or freedoms. However, the statement of
compatibility goes on to note that if it is considered to be a violation of
rights or freedoms, judicial review is available to an aggrieved person, and as
such, the measure is compatible with this right.[37]
2.98
This reasoning fails to sufficiently acknowledge the scope of
Australia's obligations with respect to prohibition on non-refoulement and the
right to an effective remedy.
2.99
As set out in the initial analysis, the committee has previously
expressed its view that judicial review (the scope of which is discussed in
detail below) is not sufficient to fulfil the international standard required
of 'effective review' in the context of non-refoulement decisions and, in the
Australian context, the requirement for independent, effective and impartial
review of non‑refoulement decisions is not met when effective merits
review of the decision to grant or cancel a protection visa is not available.[38]
2.100
While there is no express requirement for merits review in the articles
of the relevant conventions relating to obligations of non‑refoulement, the
position that merits review of such decisions is required to comply with the
obligation under international law is based on a consistent analysis of how the
obligation applies, and may be fulfilled, in the Australian domestic legal
context.
2.101
In formulating this view, the usual approach of drawing on the
jurisprudence of bodies recognised as authoritative in specialised fields of
international human rights law that can inform the human rights treaties that
fall directly under the committee's mandate has been adopted.
2.102
In this regard, treaty monitoring bodies have found that the provision
of effective and impartial review of non-refoulement decisions by a court or
tribunal is integral to complying with the obligation of non-refoulement under
the ICCPR and CAT. For example, the UN Committee against Torture in Agiza v.
Sweden found:
The nature of refoulement is such...that an allegation of
breach of...[the obligation of non-refoulement in] article [3 of the CAT] relates
to a future expulsion or removal; accordingly, the right to an effective
remedy... requires, in this context, an opportunity for effective, independent
and impartial review of the decision to expel or remove...The Committee's
previous jurisprudence has been consistent with this view of the requirements
of article 3, having found an inability to contest an expulsion decision before
an independent authority, in that case the courts, to be relevant to a finding
of a violation of article 3.[39]
2.103
Similarly, the UN Committee Against Torture in Josu Arkauz Arana v.
France found that the deportation of a person under an administrative
procedure without the possibility of judicial intervention was a violation of
article 3 of the CAT.[40]
2.104
In relation to the ICCPR, in Alzery v. Sweden the UN Human Rights
Committee emphasised that the provision of effective and impartial review of
non‑refoulement decisions by a court or tribunal is integral to complying
with the obligation of non-refoulement (as contained in article 7 of the
ICCPR):
As to...the absence of independent review of the Cabinet's
decision to expel, given the presence of an arguable risk of torture,
the...[right to an effective remedy and the prohibition on torture in articles 2
and 7 of the ICCPR require] an effective remedy for violations of the latter
provision. By the nature of refoulement, effective review of a decision to
expel to an arguable risk of torture must have an opportunity to take place
prior to expulsion, in order to avoid irreparable harm to the individual and
rendering the review otiose and devoid of meaning. The absence of any
opportunity for effective, independent review of the decision to expel
in...[this] case accordingly amounted to a breach of article 7, read in
conjunction with article 2 of the [ICCPR].[41]
2.105
These statements are accepted internationally to be persuasive
interpretations of international human rights law that are consistent with the
proper interpretation of treaties as set out in the Vienna Convention on the
Law of Treaties (VCLT).[42]
2.106
The jurisprudence quoted above therefore establishes the proposition
that, while merits review is not expressly referred to in the ICCPR or CAT,
there is strict requirement for 'effective review' of non-refoulement
decisions.
2.107
Applied to the Australian context, the committee has previously
considered numerous cases, like the present case, where legislation allows only
for judicial (rather than merits) review of non-refoulement decisions. Judicial
review in Australia is governed by the Administrative Decisions (Judicial
Review) Act 1977 and the common law. It represents a considerably limited
form of review in that it allows a court to consider only whether the decision
was lawful (that is, within the power of the decision maker) and other related
grounds. The court cannot undertake a full review of the facts (that is, the
merits) of a particular case, for instance, an assessment as to refoulement
to torture or persecution, to determine whether the case was correctly decided.
2.108
Accordingly, in the Australian context, judicial review is not
sufficient to fulfil the international standard required of 'effective review',
because it is only available on a number of restricted grounds of review that
do not address whether that decision was the correct or preferable decision.
The ineffectiveness of judicial review is particularly apparent when considered
against the purpose of effective review of non-refoulement decisions under
international law, which is to 'avoid irreparable harm to the individual'.
2.109
In contrast, merits review allows a person or entity other than the
primary decision maker to reconsider the facts, law and policy aspects of the
original decision and to determine what is the correct or preferable decision. In light of the above, in the Australian context, the
requirement for independent, effective and impartial review of non-refoulement
decisions is not met by the availability of judicial review, but may be
fulfilled by merits review.
2.110
A question is sometimes posed about the difference between the
obligations of nation states such as Australia under the ICCPR, CAT and the
Refugee Convention and the standards and procedures applied by of the Office of
the United National High Commissioner for Refugees (UNHCR). While the UNHRC may
assist nation states with refugee status determination (RSD), non-refoulement
obligations ultimately rest with nation states who are parties to the relevant
conventions. Given the nature of its role, the UNHCR, in assisting nation
states with RSD, does not have all of the same procedural safeguards that are
expected of nation states. Nor does the UNHCR possess the apparatus of nation
states such as courts and tribunals. As the UNHCR is not a nation state it is
accordingly not a party to the ICCPR, CAT and Refugee Convention. It does not
therefore have legal obligations under these treaties per se as these
rest with nation states. Further, and significantly, the UNHCR unlike Australia
and other nation states does not possess coercive powers to deport or expel an
individual. These powers rest with nation states and accordingly it is nation
states, including Australia, that have particular responsibilities in relation
to the obligation of non-refoulement in accordance with their treaty obligations.
2.111
The committee previously sought further information from the Minister
for Immigration and Border Protection as to the compatibility of this measure
with the obligation of non‑refoulement. As set out above no response was
received from the minster by the requested date.
2.112
As the measure does not provide for merits review of decisions relating
to the grant or cancellation of protection visas, it is likely to be
incompatible with Australia's obligations under the ICCPR and the CAT of
ensuring independent, effective and impartial review, including merits review,
of non‑refoulement decisions.
Committee comment
2.113
The obligation of non-refoulement is absolute and may not be
subject to any limitations.
2.114
Noting in particular that a response was not received from the Minister
for Immigration and Border Protection regarding human rights issues identified
in the committee's initial assessment of the bill, the committee is unable to
conclude on the information before it that the measure is compatible with the
obligation of non-refoulement.[43]
2.115
The measure does not provide for merits review of decisions
relating to the grant or cancellation of protection visas, and therefore is
likely to be incompatible with Australia's obligations under the International
Covenant on Civil and Political Rights and the Convention Against Torture of
ensuring independent, effective and impartial review, including merits review,
of non‑refoulement decisions.
Unfavourable inferences to be drawn by the Tribunal
2.116
Schedule 1, Part 1, item 53 of the bill proposes to insert into the
Migration Act new section 358A, which sets out how the MRD of the AAT is to
deal with new claims or evidence in respect of refugee review decisions in
relation to a protection visa. This section mirrors current section 423A of the
Migration Act.
2.117
Pursuant to this proposed amendment, the MRD must draw an inference
unfavourable to the credibility of the claim or evidence if the MRD is
satisfied that the applicant does not have a reasonable explanation for why the
claim was not raised, or evidence presented, before the reviewable refugee
decision was made.
Compatibility of the measure with the right to non-refoulement and
the right to an effective remedy
2.118
The obligation of non-refoulement and the right to an effective remedy
have been described in detail above (see also Appendix 2).
2.119
As with the measures discussed above, the initial analysis noted that
the right to non-refoulement and the right to an effective remedy are engaged
by this measure as it fails to introduce sufficient procedural and substantive
safeguards to ensure a person is not removed in contravention of the obligation
of non‑refoulement. The right to non-refoulement is an absolute right: it
cannot be subject to any permissible limitations.
2.120
The discussion of the right to non-refoulement in the statement of
compatibility includes reference to the requirements of the MRD to conduct a
review of the refusal or cancellation decision in accordance with the
procedures in amended Part 5 of the Migration Act.[44]
2.121
The committee previously considered the requirement on the then RRT to
draw an inference unfavourable to the credibility of the claim or evidence,
which mirrors proposed section 358A.[45]
In its consideration of then proposed section 423A, the committee found that
the section was incompatible with Australia's non‑refoulement
obligations. The committee expressed its concern that:
...there are insufficient procedural and substantive
safeguards to ensure that this proposed provision does not result in a person
being removed in contravention of non-refoulement obligations. For example,
people who are fleeing persecution or have experienced physical or
psychological trauma may not recount their full story initially (often due to
recognised medical conditions such as post-traumatic stress disorder), or else
may simply fail to understand what information might be important for their
claim.[46]
2.122
The committee was also concerned that:
...the proposed
provision appears to be inconsistent with the fundamental nature of independent
merits review and, to that end, would seem to depart from the typical character
of merits review tribunals in Australia. In particular, the committee notes
that the function of the RRT as a merits review tribunal is to make the
'correct and preferable' decision in a supporting context where applicants are
entitled to introduce new evidence to support their applications. However,
proposed section 423A would limit the RRT to facts and claims provided in the
original application, and require (rather than permit) the drawing of an
adverse inference as to credibility in the absence of a 'reasonable
explanation' for not including those facts or claims in the original
application.[47]
2.123
The measure would require the tribunal to draw an inference unfavourable
to the credibility of the new claims or evidence raised in the absence of a
'reasonable explanation'. Such an adverse inference may be required to be drawn
even where the MRD considers that the evidence is relevant, reliable or
credible. This inability of the MRD to be able to freely assess the credibility
of evidence may in turn result in denial of protection visas in circumstances
where Australia has non-refoulement obligations. As set out above, the
provision of independent, effective and impartial review of non-refoulement decisions
is integral to complying with non-refoulement obligations under the ICCPR and
CAT. The requirement to draw an unfavourable inference in relation to the
credibility of a claim or evidence raised at the review stage is inconsistent
with the effectiveness of the tribunal in seeking to arrive at the 'correct and
preferable' decision.[48]
2.124
The committee sought further information from the Minister for
Immigration and Border Protection as to the compatibility of this measure with
the obligation of non‑refoulement. As set out above, no response was
received from the minster by the requested date.
2.125
As the measure limits the ability of the tribunal to provide effective
merits review of decisions relating to the grant of protection visas, it is
likely to be incompatible with Australia's obligations under the ICCPR and the
CAT of ensuring independent, effective and impartial review, including merits
review, of non‑refoulement decisions.
Committee comment
2.126
The obligation of non-refoulement is absolute and may not be
subject to any limitations.
2.127
Noting in particular that a response was not received from the Minister
for Immigration and Border Protection regarding human rights issues identified
in the committee's initial assessment of the bill, the committee is unable to
conclude on the information before it that the measure is compatible with the
obligation of non-refoulement.[49]
2.128
The measure limits the ability of the Administrative Appeals
Tribunal to provide effective merits review of decisions relating to the grant
of protection visas, and therefore is likely to be incompatible with
Australia's obligations under the International Covenant on Civil and Political
Rights and the Convention Against Torture of ensuring independent, effective
and impartial review, including merits review, of non-refoulement decisions.
New
procedures for the Immigration Assessment Authority
2.129
Schedule 2, Part 3 proposes to amend the Migration Act such that the
minister may refer fast track reviewable decisions in relation to members of
the same family unit to the Immigration Assessment Authority (IAA) for review
together.[50]
The amendments also enable the IAA to review two or more fast track reviewable
decisions together, whether or not they were referred together.[51] Further, where fast
track reviewable decisions have been referred and reviewed together, documents
given by the IAA to any of the applicants will be taken to be given to each
applicant.[52]
Compatibility of the measure with the right to non-refoulement and
the right to an effective remedy
2.130
The initial analysis noted that the obligation of non-refoulement is
engaged by the measure, as allowing for two or more fast-track decisions to be
considered together may not provide effective review for the individual
applicants. This concern is particularly relevant in the context of fast track
review decisions by the IAA, as the committee has previously raised concerns
about procedural fairness in relation to this process. In that context, these
measures may fail to provide sufficient procedural and substantive safeguards
to ensure a person is not removed in contravention of the obligation of non‑refoulement.
2.131
The statement of compatibility sets out that the stated objective of the
measure is to 'promote administrative efficiency'.[53] However, the right to non‑refoulement,
including the obligation to ensure independent, effective and impartial review,
is absolute, and cannot even be justifiably limited.
2.132
In this regard, in the previous assessment of the introduction of the
IAA in a previous committee report, it was noted that the (then proposed)
system – an internal departmental review system – lacks the requisite degree of
independence to ensure 'independent, effective and impartial' review under
international human rights law.[54]
It was identified that this concern is most pronounced in respect of the fact
that any such internal reviews by the department would be performed by the
department itself, which, being the executive arm of government, would amount
to executive review of executive decision making.[55]
2.133
This was subsequently reiterated in the final assessment of the
introduction of the IAA.[56]
It was also noted that, while judicial review is still available, it is limited
to review of decisions as to whether the decision was lawful and does not
consider the merits of a decision.[57]
This report also discussed how the right to a fair hearing was engaged and
limited by the introduction of the IAA.[58]
2.134
These concerns with the IAA process are relevant to the consideration of
the proposed amendments, as the possibility that the individual merits of an
applicant's claim will not be treated or considered separately further
increases the existing risk of refoulement and further limits the existing
limitations on the right to an effective remedy.
2.135
As noted in the initial analysis the right to an effective remedy,
including the right to independent, effective and impartial review, is further
limited by the proposed amendments to the IAA process, which provide that
individual applications need not be treated separately.
2.136
The committee sought the advice of the Minister for Immigration and
Border Protection as to whether hearing family applications together (without
the consent of the applicants) will ensure the review process under the IAA
provides for effective review of such claims so as to comply with Australia's
non‑refoulement obligations. As set out above, no response was received
from the minster by the requested date.
2.137
In the absence of this further information, it is not possible to
conclude that the measure is compatible with the obligation of non-refoulement
and the right to an effective remedy including the requirement of independent,
effective and impartial review of non-refoulement decisions.
Committee comment
2.138
The obligation of non-refoulement is absolute and may not be
subject to any limitations.
2.139
The right to an effective remedy and the obligation of
non-refoulement, which includes the right to independent, effective and
impartial review of non-refoulement decisions, is further limited by the
proposed amendments to the Immigration Assessment Authority process, which
provide that individual applications need not be treated separately.
2.140
Noting in particular that a response was not received from the Minister
for Immigration and Border Protection regarding human rights issues identified
in the committee's initial assessment of the bill, the committee is unable to
conclude on the information before it that the measure is compatible with the
obligation of non-refoulement and the right to an effective remedy.[59]
Native Title Amendment (Indigenous Land Use Agreements) Bill 2017
Purpose |
Seeks to amend the Native
Title Act 1993 to respond to the Federal Court's decision in McGlade v
Native Title Registrar [2017] FCAFC 10 by: confirming the legal status
and enforceability of agreements which have been registered by the Native
Title Registrar on the Register of Indigenous Land Use Agreements without the
signature of all members of a registered native title claimant (RNTC); enable
the registration of agreements which have been made but have not yet been
registered; and ensure that area Indigenous Land Use Agreements can be
registered without requiring every member of the RNTC to be a party to the
agreement |
Portfolio |
Attorney-General |
Introduced |
House of Representatives,
15 February 2017 |
Rights |
Culture; self-determination
(see Appendix 2) |
Previous report[s] |
2 of 2017 |
Status |
Concluded examination |
Background
2.141
The committee first reported on the Native Title Amendment (Indigenous
Land Use Agreements) Bill 2017 (the bill) in its Report 2 of 2017, and
requested a response from the Attorney-General by 13 April 2017.[60]
2.142
The Attorney-General's response to the committee's inquiries was
received on 28 April 2017. The response is discussed below and is reproduced in
full at Appendix 3.
Area Indigenous Land Use Agreements and the Native Title Act
2.143
The Native Title Act 1993 (NTA) provides a legislative process by
which native title groups can negotiate with other parties to form voluntary
agreements in relation to the use of land and waters called Indigenous Land Use
Agreements (ILUAs). Under the NTA ILUAs may be:
-
over areas or land where native title has, or has not yet, been
determined;
-
entered into regardless of whether there is a native title claim
over the area or not; or
-
part of a native title determination or settled separately from a
native title claim.[61]
2.144
There are a number of matters which ILUAs may cover including:
-
how native title rights coexist with the rights of other people;
-
who may have access to an area;
-
native title holders agreeing to a future development or future
acts;
-
extinguishment of native title;
-
compensation for any past or future act;
-
employment and economic opportunities for native title groups;
-
issues of cultural heritage; and
-
mining.[62]
2.145
When registered, ILUAs bind all parties and all native title holders to
the terms of the agreement including people that have not been born at the time
an ILUA was registered.[63]
2.146
Under the NTA there are three types of ILUAs:
-
body corporate ILUAs are made in relation to land or waters where
a registered native title body corporate exists;
-
'Area ILUAs' are made in relation to land or waters for which no
registered native title body corporate exists; and
-
alternative procedure ILUAs.[64]
2.147
The NTA specifies requirements which must be met in order for an
agreement to be an 'Area ILUA'. Section 24CD of the NTA provides that all
persons in the 'native title group', as defined in the section, must be parties
to an Area ILUA. Under section 24CD the native title group consists of all
'registered native title claimants' (RNTC) in relation to land or waters in the
area. Section 253 of the NTA defines RNTC as 'a person or persons whose name or
names appear in an entry to the Register of Native Title Claims'. The RNTC is
often a subset of the larger group native title claim group that may hold
native title over the area.[65]
Section 251A of the NTA provides for a process for authorising the making of
ILUAs by the native title claim group.
2.148
The recent Full Federal Court decision in McGlade v Native Title
Registrar & Ors (McGlade),[66]
dealt with three main issues relating to the process of Area ILUAs:
-
whether each individual member of the RNTC must be party to an
area ILUA;
-
whether a deceased individual member of the RNTC must be party to
an Area ILUA; and
-
whether an individual member of the RNTC must sign an area ILUA
prior to the application for registration being made.
2.149
The court in McGlade held in relation to any proposed Area ILUA, if
one of the persons who, jointly with others, has been authorised by the native
title claim group to be the applicant, refuses, fails or neglects, or is unable
to sign a negotiated, proposed written indigenous land use agreement, for
whatever reason, then the document will lack the quality of being an agreement
recognised for the purposes of the NTA and will be unable to be registered.[67]
Following this decision all individuals comprising the RNTC must sign the
agreement otherwise it cannot be registered as an Area ILUA.
Amendments to process for Area ILUAs and validation of existing ILUAs
2.150
The bill seeks to amend the NTA to overturn aspects of the decision in McGlade
regarding Area ILUAs. The bill seeks to amend the process for authorising ILUAs
as follows:
- a native title claim group authorising an ILUA under section 251A of the
NTA will be able to:
- nominate one or more of the members of the RNTC for the group to be
party to the ILUA; or
-
specify a process for determining which of the members of the RNTC for
the group is, or are, to be party to the ILUA.[68]
-
under section 251A a native title claim group will be able to choose to
utilise a traditional decision-making process for authorising such matters or
agree and adopt an alternative decision-making process;[69]
-
in place of the current requirement for all members of the RNTC
to be party to the agreement under section 24CD of the NTA, the mandatory
parties to an ILUA would include:
-
the member or members of the RNTC who is or are nominated by the native
title claim group, or determined using a process specified by the native title
claim group, to be party to the ILUA; or
-
if no such members are nominated or determined to be party to the ILUA,
a majority of the members of the RNTC.[70]
2.151
The bill also seeks to amend the NTA to:
-
provide that existing Area ILUAs which have been registered on or before
2 February 2017, but do not comply with McGlade as they were not
signed by all members of the RNTC, are valid; and
-
enable the registration of agreements which have been made and lodged
for registration on or before 2 February 2017 but do not comply with McGlade
as they have not been signed by all members of the RNTCs.[71]
Compatibility of the measures with
the right to culture
2.152
The right to culture is contained in article 15 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR) and article 27 of the
International Covenant on Civil and Political Rights (ICCPR).
2.153
Individuals belonging to minority groups have additional protections to
enjoy their own culture, religion and language. This right is separate from the
right to self‑determination as it is conferred on individuals (whereas
the right to self‑determination belongs to groups). This right has been
identified as particularly applying to Indigenous communities, and includes the
right for Indigenous people to use land resources, including traditional
activities such as hunting and fishing and to live on their traditional lands.
The state is prohibited from denying individuals the right to enjoy their culture,
and may be required to take positive steps to protect the identity of a minority
and the rights of its members to enjoy and develop their culture.[72]
2.154
The initial human rights analysis noted that the proposed amendments to
the process for authorising the making of Area ILUAs engage the right to
culture. This is because the types of matters which may be the subject of an
Area ILUA are significant and include such matters as authorisation of any
future act and the extinguishment of native title rights and interests. Given
that such agreements continue to operate into the future, the process by which
ILUAs are authorised by native title claim groups is of great significance for
the right to culture.
2.155
Under proposed section 24CD(2)(a)(ii) where no members of the RNTC are
nominated or determined to be party to the ILUA, the default position is that
agreement from a majority of the members of the RNTC will be sufficient for an
Area ILUA to be valid. Noting that the right to culture is an individual rather
than collective right, this may have the effect of limiting the right to
culture of individuals who do not agree with the ILUA. Similarly, the
validation of Area ILUAs that have previously been registered or are lodged for
registration which have not been signed by all RNTC members could potentially
limit the right to culture for individuals that do not agree to an Area ILUA.
2.156
A limitation on the right to culture will be permissible where it
pursues a legitimate objective, is rationally connected to this objective and a
proportionate means of achieving this objective.
2.157
The statement of compatibility identifies that the measures engage the
right to culture and states that the NTA 'as a whole' promotes the right to
enjoy and benefit from culture by establishing processes through which native
title can be recognised and protected. It contends that the bill supports this
function of the NTA by providing certainty to native title claimants and
holders.[73]
2.158 The initial
human rights analysis noted that statement of compatibility does not provide an
assessment of the potential limitation on individuals' right to culture.
Nevertheless, the statement of compatibility explains that the amendments are
needed to ensure the views of the broader native title claim group are not
frustrated noting that the position following McGlade means that if a
single member of the RNTC withholds consent to be a party to the Area ILUA the
ILUA cannot be registered. The statement of compatibility notes in particular
that disputes between RNTC members and the broader claim group can lead to
'delays and burdensome costs.'[74]
2.159
The explanatory memorandum to the bill further notes that while a native
title claim group may make an application under section 66B of the NTA removing
a member or members of the RNTC who refuse to sign or are unable to sign, 'this
process can impose high costs on claim groups.'[75]
2.160
The factors above indicate that, to the extent that the measures limit
the right to culture, the measure pursues a legitimate objective for the
purposes of international human rights law.
2.161
However, while acknowledging difficulties with the current authorisation
process for ILUAs, the initial human rights analysis noted some questions about
the proportionality of the measures, particularly in light of the serious
matters that ILUAs may cover (including future projects and extinguishment of
native title) and the ongoing binding nature of such ILUAs into the future. The
proposed amendments would allow an ILUA to be registered even where a
significant minority of RNTC members disagree or refuse to sign and may have
strong reasons for doing so.
2.162
The statement of compatibility does not address whether reasonable scope
could be given to minority views, which is relevant to whether the measure is
the least rights-restrictive means of achieving its objective.
2.163
Accordingly, the committee sought the advice of the Attorney-General as
to whether the measure is a reasonable and proportionate measure for the
achievement of its apparent objective and in particular:
-
whether less rights restrictive measures would be workable;
-
whether reasonable scope could be given for minority views; and
-
any procedural or other safeguards to protect the right to
culture for individuals.
Compatibility of the measure with
the right to self-determination
2.164
The right to self-determination is protected by article 1 of the ICCPR
and article 1 of the ICESCR. The right to self-determination includes the
entitlement of peoples to have control over their destiny and to be treated
respectfully. This includes peoples being free to pursue their economic, social
and cultural development. It is generally understood that the right to
self-determination accrues to 'peoples', rather than to individuals.
2.165
The UN Committee on the Elimination of Racial Discrimination has stated
that the right to self-determination involves 'the rights of all peoples to
pursue freely their economic, social and cultural development without outside
interference'.[76]
2.166
The initial human rights analysis noted that, as acknowledged in the
statement of compatibility, the principles contained in the UN Declaration on
the Rights of Indigenous Peoples (the Declaration) are also relevant to the
amendments in this bill. The Declaration provides context as to how human
rights standards under international law apply to the particular situation of
Indigenous peoples.[77]
The Declaration affirms the right of Indigenous peoples to self-determination.[78]
2.167
The initial human rights analysis stated that the proposed amendments to
the authorisation process of Area ILUAs engage and appear likely to promote the
collective right to self-determination, noting that a minority of members of
the RNTC would be unable to prevent the making of an ILUA which has been
authorised by the native title claim group. The statement of compatibility
states that the measures engage and promote the rights contained in the
Declaration and the right to self-determination by:
...emphasis[ing] the fundamental importance of authorisation to
the integrity of the native title system. Authorisation processes recognise the
communal character of Indigenous traditional law and custom, and ensure that
decisions regarding the rights and interest of Indigenous Australians are made
with traditional owners.[79]
2.168
While acknowledging that the measures, in general, appear to promote the
collective right to self-determination, the initial human rights analysis noted
that there are some remaining questions about whether the measures will promote
the right to self-determination in all circumstances. The initial human rights
analysis stated that, as indicated above at [2.160], it may be considered to be
important to give some scope to the reasonable expression of minority views as
part of ensuring genuine agreement is reached. It this respect, it is noted
that adequately consulting those most likely to be affected by such changes in
accordance with the Declaration is of particular importance.
2.169
In relation to the compatibility of the measure with the right to self‑determination,
the committee therefore sought the advice of the Attorney‑General:
-
about the extent to which the measures promote the right to self‑determination
in a range of circumstances;
-
as to whether reasonable scope could be given for minority views;
and
-
as to whether there has been sufficient and adequate consultation
with Aboriginal and Torres Strait Islander peoples about the proposed changes.
Attorney-General's response
Right to culture
2.170
In relation to the right to culture, the Attorney-General's response
acknowledges that there may be some tension between the protection of communal
rights and the individual right to culture:
One of the main purposes of the Act is to preserve and
protect native title rights. Native title rights are generally communal in
nature and there may some [sic] tension between the protection and preservation
of communal rights and the individual right to enjoy and benefit culture.
The practice of culture and the recognition of native title
rights are not necessarily dependent; it is possible for native title holders
to engage in a range of cultural practice without a native title claim or
determination. Indigenous Land Use Agreements (ILUAs) will often facilitate access
for such practices regardless of the nature and extent of native title rights
likely to be recognised by a court.
2.171
The Attorney-General's response provides useful information addressing
the committee's questions about whether the measures are a reasonable and
proportionate limitation on the right to culture.
2.172
In relation to whether less rights restrictive measures would be
workable, the Attorney-General's response states:
ILUAs are a mechanism allowing native title holders and
claimants and third parties to agree about the doing of things on land subject
to native title. While the exact subject matter of the affected ILUAs is
commercial-in-confidence to the parties of those ILUAs, ILUAs can cover a range
of matters including agreement about the doing of acts that may affect native
title, how native title and other rights in the area will be exercised
including how parties will be notified and consulted, and agreement on
compensation and other benefits. The effect of the decision has been to bring
into doubt the agreements that have been reached on these and other issues, and
to raise doubts about the validity of acts done in reliance on the agreement and
of benefits transferred or to be transferred in the future. This leaves the
ILUAs open to legal challenge.
Allowing the affected ILUAs to remain open to challenge creates
great uncertainty about whether agreements struck can continue to be relied
upon by both native title holders and third parties. It also raises the
prospect of significantly increased costs for the sector both in the form of
litigation about the status of affected agreements, which may divert resources away
from progressing claims for native title, and potentially the need to
re-negotiate ILUAs which may have already taken several years and significant resources
to negotiate. Given these consequences I am satisfied that less restrictive
measures are not available.
2.173
It can be accepted that the burden to re-negotiate ILUAs which have
already been negotiated may take significant time and resources, and
uncertainty regarding the status of agreements already registered or lodged for
registration may pose significant problems for native title holders and third
parties. In these circumstances, legislating to save existing agreements (that
have already been registered, or have been lodged for registration) from legal
challenge may be the least rights-restrictive feasible method of addressing
these problems, less so than, for instance, imposing some interim arrangement
that has not been authorised by native title holders, or simply leaving the
ILUA open to legal challenge.
2.174
However, it is noted in this respect that ILUAs may cover a range of
serious matters, including the extinguishment of native title rights and
interests, and accordingly, where the terms of the ILUA are a matter of dispute
within the claim group, the measures validating those ILUA's may profoundly
affect the interests of certain individuals in relation to the right to
culture. This underscores the importance of consultation with affected groups,
addressed below.
2.175
In relation to whether reasonable scope could be given in the ILUA
authorisation process to minority views, the Attorney-General's response
states:
Minority views within the claim group are given voice through
the authorisation process for an ILUA. The authorisation process involves
everyone who holds, or who may hold, native title within the area of an ILUA,
and requires those parties to use a traditional decision-making process (where
one exists), or a process agreed upon by the group, to decide whether or not to
authorise the ILUA. Where a claim group does not authorise an ILUA, the agreement
cannot be registered. It is only after the authorisation has occurred that the Registered
Native Title Claimant (RNTC) - a smaller group of authorised representatives who
manage the claim on behalf of the wider group - must become parties to the
agreement, before it can be registered.
The measures in the Bill allow an ILUA to be registered where
not every member of the RNTC has become party to the agreement; however, the
ILUA must still be authorised before this can occur. Where a claim group
authorises an ILUA, notwithstanding minority views, the Act allows for that
ILUA to be registered. Requiring unanimity on the part of the claim group before
ILUAs can be authorised would slow, or possibly entirely stop, agreement-making
under the Act, which would dramatically reduce the financial and other benefits
which can flow to native title holders as a result of ILUAs.
2.176
This response assists to further explain the authorisation process for
an ILUA and indicates that scope is afforded to minority views in these
processes but that requiring unanimity on the part of the claim group before
ILUAs are authorised may undermine the process of agreement-making under the
NTA. The response also clarifies that even if not every member of the RNTC
signs the ILUA the ILUA must still be properly authorised. These factors
collectively may assist to support the view that the measures are a
proportionate limit on the individual right to culture.
2.177
In relation to whether there are any procedural or other safeguards to
protect the right to culture for individuals, the Attorney-General's response
states:
Part of the statutory functions of Native Title
Representative Bodies and Service Providers is to provide dispute resolution
services. This mechanism provides support to claim groups unable to agree about
the conduct of consultations, mediations, negotiations or proceedings about
ILUAs.
The measures in the Bill impose a
higher standard on decision-making in relation to ILUAs than existed prior to McGlade.
Before that decision it was sufficient for a single member of the RNTC to
be a party to an ILUA. The Bill strikes a balance between the unanimity
requirement in McGlade and the previously accepted position that a
single RNTC member being party to an ILUA was sufficient.
The McGlade decision emphasised the role of the s 66B
applicant replacement process as a mechanism for removing members of the RNTC
who refuse to sign an ILUA, notwithstanding the fact that the wider group has
authorised it. The court noted that it is open to a claim group to remove a
person from the RNTC for failing to comply with the claim group's will in that
regard. However, the process of obtaining a court order under s 66B is costly,
and will often delay the making of agreements for groups, which is already a
lengthy and expensive process. Requiring a change in the composition of the
RNTC under s 66B in order to ensure that an ILUA can be registered imposes
significant transaction costs on native title groups.
2.178
These points support the view that the measures may constitute a
proportionate limit on human rights. In relation to the section 66B mechanism,
it is accepted that this process is costly and may create considerable delay.
On balance, on the available information, it appears that the measures are
likely to be a reasonable and proportionate limit on the individual right to
culture and accordingly compatible with this right.
Right to self-determination
2.179
In relation to the compatibility of the measure with the right to
self-determination and whether reasonable scope could be given to minority
views, the Attorney-General's response states:
Through ILUAs the Act provides a framework for native title
holders to use their native title rights in particular ways and to make
agreements about how activities on land subject to native title may occur. The
measures provide greater control to claim groups as a whole, rather than the
individual members of the RNTC, over the making of area ILUAs. If allowed to
stand, the McGlade decision would have required unanimity among the
RNTC, even in circumstances where the broader claim group supports the relevant
ILUA and have authorised it. Negotiation and authorisation of an ILUA are the
appropriate forums for a native title group to consider minority viewpoints.
2.180
This response, in key respects, reflects the nature of the right to
self-determination as ultimately a collective one. The Attorney-General's
response usefully outlines the scope provided to minority views through the
authorisation process. The authorisation process, rather than the registration
process, appears to be the appropriate mechanism to assist to ensure that
genuine agreement is reached and the collective right to self-determination is
promoted.
2.181
In relation to whether there has been sufficient and adequate
consultation with Aboriginal and Torres Strait Islander peoples about the
proposed changes the Attorney-General's response states:
The consultation process for the Bill was necessarily
targeted, given the narrow scope of the measures and their urgency. My
department consulted with the peak body representing all Native Title
Representative Bodies and Service Providers across the country, the National Native
Title Council (NNTC), along with state and territory officials, and peak
representative bodies for the mining and agricultural sectors. The NNTC were
supportive of the measures and made a submission to the Senate Inquiry into the
provisions of the Bill - endorsed by many of the Native Title Representative
Bodies and Service Providers - indicating its support. The NNTC and Cape York
Land Council also expressed concern that, absent the Bill being passed, the McGlade
decision will allow individuals to frustrate the will of the group.
2.182
The obligation to consult with Indigenous peoples in relation to actions
which may affect them is accepted as part of customary international law.[80] The information
provided by the Attorney-General that a number of Native Title Representative
Bodies were able to make submissions into the Senate Legal and Constitutional
Affairs Inquiry into the bill and that some targeted consultations were
undertaken is welcome.
2.183
However, it is noted that the judgment in McGlade was handed down
on 2 February 2017, and the bill was introduced into parliament within two
weeks' time. This is very short period of time given the obligation to consult
and the importance and complexity of the issues raised and the need for
affected people to develop and communicate their views to representative and
other bodies.
2.184
A related human rights issue that some affected parties have raised in
relation to the bill is the requirement of 'free, prior and informed consent'
contained within the Declaration. While the Declaration is not included in the
definition of 'human rights' under the Human Rights (Parliamentary Scrutiny)
Act 2011, it provides clarification as to how human rights standards
under international law apply to the particular situation of Indigenous peoples.[81] Aspects of the
Declaration may also be considered to represent customary international law,
which is binding on Australia. The statement of compatibility recognises the
relevance of the Declaration in relation to the committee's mandate of assessing
legislation for human rights compatibility.[82]
2.185
There is, however, uncertainty about the requirement of 'free prior and
informed consent' as a matter of international human rights law. A number of
governments (including Australia) have previously not accepted that aspects of
the provisions of the Declaration which require 'free prior and informed
consent' (rather than 'consultation') have yet attained the status of customary
international law which is binding on Australia.[83] This analysis does not
comprehensively address whether the measure complies with this principle and
the extent to which it relates to the right to self-determination. However, it
is noted that while not in itself legally binding, the Declaration is an
important instrument that articulates a range of principles, standards and
guidance to governments for the treatment of Indigenous peoples.[84] The principle
of 'free prior and informed consent' may be viewed as an important one in the
context of developing and amending native title legislation. The standards
articulated in the Declaration may also signify future developments in
international law which may become legally binding.
2.186
Overall, noting the information provided in the Attorney-General's
response, the measures appear to promote the right to self-determination.
Committee response
2.187
The committee thanks the Attorney-General for his response and
has concluded its examination of this issue.
2.188
While noting that the measures may profoundly affect certain
individuals' enjoyment of their right to culture, the committee notes that the
measures are likely to be a reasonable and proportionate limit on the
individual right to culture and accordingly may be compatible with the right to
culture.
2.189
The committee notes that the measures are likely to promote the
right to self-determination.
2.190
The committee also notes the importance of the obligation to
consult with Indigenous peoples in relation to actions which may affect them,
and the principles outlined in the UN Declaration on the rights of Indigenous
peoples.
Protection of the Sea (Prevention of Pollution from Ships) Amendment (Polar
Code) Bill 2017
Purpose |
Seeks
to amend the Protection of the Sea (Prevention of Pollution from Ships)
Act 1983 to implement amendments of the International Convention for
the Prevention of Pollution from Ships 1973, to ensure that there are
strict discharge restrictions for oil, noxious liquid substances, sewage and
garbage for certain ships operating in polar waters |
Portfolio |
Infrastructure and Regional
Development |
Introduced |
House of Representatives,
16 February 2017 |
Rights |
Fair trial; presumption of
innocence (see Appendix 2) |
Previous report |
3 of 2017 |
Status |
Concluded examination |
Background
2.191
The committee first reported on the Protection of the Sea (Prevention of
Pollution from Ships) Amendment (Polar Code) Bill 2017 (the bill) in its Report
3 of 2017, and requested a response from the Minister for Infrastructure
and Transport by 21 April 2017.[85]
2.192
The minister's response to the committee's inquiries was received on
31 March 2017. The response is discussed below and is reproduced in full
at Appendix 3.
Compatibility of strict liability and
reverse burden offences with the right to be presumed innocent
2.193
In its initial analysis, the committee described the relevant
requirements of article 14(2) of the International Covenant on Civil and
Political Rights (ICCPR), which protects the right to be presumed innocent
until proven guilty according to law in relation to strict liability and
reverse burden offences.
2.194
The committee noted that, in relation to both strict liability offences
and reverse burden offences, such measures 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. The initial analysis also drew attention to the committee's
Guidance Note 2 which sets out the committee’s usual expectation in
relation to strict liability offences and reverse burden offences.[86]
2.195
The statement of compatibility did not sufficiently address these
matters. Accordingly, the committee sought the advice of the Minister for Infrastructure
and Transport as to:
-
whether the strict liability and reverse burden offences are aimed
at achieving a legitimate objective for the purposes of international human
rights law;
-
how the strict liability and reverse burden offences are
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
2.196
In relation to the questions raised by the committee, the minister's
response provides that:
Strict liability offences
26BCC(3) creates an offence for the master and owner of an
Annex IV Australian ship where sewage is discharged in the Antarctic Area
outside Australia's exclusive economic zone. The purpose of this offence to
[sic] manage the risk of Australian ships discharging sewage into the pristine
waters of the Antarctic. This type of discharge could have a significant
adverse impact on the environment, human health,
safety and other users of the sea, particularly when a reoccurring activity.
26BCC(4) creates a similar offence, being an offence for the
master and owner of an Annex IV Australian ship which discharges sewage in
Arctic waters. While Australia does not have the additional burdens of
responsibilities for the Arctic area as is the case for the Antarctic under the
Antarctic treaty system, the same concerns outlined above in relation to the
Antarctic apply to this offence in the Arctic.
Reverse Burden Provisions
26BCC(5)-(9) provide defences to the strict liability offences
proposed at 26BCC(3) and (4). These provisions describe exceptions to the
strict liability offences and require the defendant to raise evidence about the
matters outlined in each provision.
Section 26BCC(5) creates two exceptions. The first is an exception
to the strict liability offences where safety of life at sea is endangered. The
second exception requires evidence to be presented about the precautions taken
throughout a voyage to minimise damage and the decision about the need to
discharge sewage.
Section 26BCC(6) creates an exception requiring evidence to
be presented about a combination of factors: the location of the discharge and
the speed of the ship when the discharge occurs.
Section 26BCC(7) also creates an exception requiring evidence
to be presented about a combination of factors: the location of the discharge
and the physical nature of the discharge when the discharge occurs.
Section 26BCC(8) creates an exception requiring evidence to
be presented about the nature of the sewage discharged.
Section 26BCC(9) creates an exception requiring evidence to
be presented about the location of the discharge.
Legitimate objective
The Polar Code is an international agreement negotiated under
the auspices of the International Maritime Organization (IMO) that includes
mandatory provisions covering pollution prevention measures. These measures are
important because as sea ice continues to decline, the polar waters are
becoming more accessible to vessel traffic. Shipping activities are therefore
projected to increase as a result of natural resource exploration and
exploitation, tourism, and faster transportation routes. The increase in
shipping presents substantial environmental risks for these fragile marine
ecosystems. Therefore, I consider that both the strict liability offences and
reverse burden provisions are directed toward a legitimate objective.
Rational connection
In aiming to protect the environment the Polar Code places
strict limitations on discharge of sewage and garbage from ships travelling in polar
waters. The strict liability provisions in the Bill implement the parts of the
Polar Code that reflect these limitations. Prevention of the discharge of
untreated sewage from passing ships is a necessary step in protecting these
waters and will become more important as traffic increases.
The burden of proof is placed on the defendant in the above
provisions of the Bill because the facts in issue in the defence might be said
to be peculiarly within the knowledge of the accused and the defendants are best
placed to give evidence as to their decision making at the time when a
discharge occurs. This is a situation in which the relevant facts are likely to
be within the knowledge of the defendant, and in which it could be difficult
for the prosecution to prove the defendant's state of mind. The Senate Standing
Committee for the Scrutiny of Bills has previously indicated that the burden of
proof may be imposed on a defendant under these circumstances. In my view, this
approach is also consistent with 4.3.1 of the Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers.
Regarding 26BCC(5), only those present during a particular
incident are able to make an assessment as to what is necessary to ensure the
safety of life at sea, and the master of the ship is charged with the
responsibility for making this judgement. Regarding 26BCC(6), the circumstances
surrounding a particular incident, the precautions needed to address that
situation, and the assessment undertaken in making a decision, can only be
known by those present (specifically the master of the ship). Similarly,
regarding 26BCC(7)-(9), the matters described in each of these exceptions is
knowable only by those present and charged with decision making
responsibilities, being the master of the ship in control of the ship at the
time, subject to the direction of the shipowner.
Proportionality
Shipping companies are engaging in a high-investment,
high-return commercial activities. Stringent regulatory regimes designed to
better manage safety and environment issues throughout the world's oceans are
agreed internationally through the IMO, a longstanding international body
involving 172 Member States. Those ships travelling through Antarctic and
Arctic waters are subject to additional internationally agreed regulatory
regimes designed to protect these sensitive waters. Australia has a particular
responsibility for parts of the Antarctic waters through the Antarctic Treaty
system.
Given the significant consequences of non-compliance for the
Antarctic, it is important that the penalty for non-compliance is high enough
to be a real incentive to industry. In order to ensure compliance with
environmental regimes, high initial outlays by the shipping industry are
sometimes required. In these circumstances, and given the very high level of
expenditure routinely incurred in shipping operations, it is considered that
the strict liability offences and reverse burden provisions contained in the
Bill are reasonable and proportionate. Further, these strict liability offences
and reverse burden provisions are consistent with other measures in the Protection
of the Sea (Prevention of Pollution from Ships) Act 1983.
There are no less intrusive measures that could be
implemented that would achieve the same environmental outcome. I acknowledge
the burden placed on shipowners and masters through these provisions, however I
note the benefits that also accrue to industry in protecting the environment in
which they operate. I also note the support provided by the maritime industry
during the international negotiations relating to the Polar Code conducted
under the auspices of the IMO.
Given the above, I consider that the strict liability
offences and reverse burden provisions contained in the Bill are aimed at achieving
a legitimate objective for the purposes of international human rights law, that
the offences and provisions are rationally connected to that objective, and
that the limitation is in each case a reasonable and proportionate measure.
2.197
Based on the detailed information provided, the measures appear likely
to be compatible with the right to be presumed innocent and the right to a fair
trial.
Committee response
2.198
The committee thanks the Minister for Infrastructure and
Transport for his detailed response and has concluded its examination of this
issue.
2.199
In light of the additional information provided the committee
notes that the measure appears likely to be compatible with the presumption of
innocence and the right to a fair trial. The committee notes that this
information would have been useful in the statement of compatibility.
Therapeutic Goods Amendment (2016 Measures No. 1) Bill 2016
Purpose |
Proposes to make a number
of amendments to the Therapeutic Goods Act 1989, including to:
enable the making of regulations to establish new priority pathways for
faster approval of certain products, designate bodies to appraise the
suitability of the manufacturing process for medical devices manufactured in
Australia, and to consider whether such medical devices meet relevant minimum
standards for safety and performance; allow certain unapproved therapeutic
goods that are currently accessed by healthcare practitioners through
applying to the Secretary of the Department of Health for approval to be more
easily obtained; provide review and appeal rights for persons who apply to
add new ingredients for use in listed complementary medicines; and make a
number of other measures to ensure consistency across the regulation of
different goods under the Act |
Portfolio |
Health and Aged Care |
Introduced |
House of Representatives, 1
December 2016 |
Right |
Fair trial (see Appendix
2) |
Previous report |
2 of 2017 |
Status |
Concluded examination |
Background
2.200
The committee first reported on the Therapeutic Goods Amendment
(2016 Measures No. 1) Bill 2016 (the bill) in its Report 2 of 2017,
and requested a response from the Minister for Health by 13 April 2017.[87]
2.201
The minister's response to the committee's inquiries was received on 19 April
2017. The response is discussed below and is reproduced in full at Appendix 3.
Civil penalty provisions
2.202
Proposed section 41AF of the bill seeks to introduce a new civil penalty
provision that applies if a licence holder carrying out one or more steps in
the manufacture of therapeutic goods provides false or misleading information
or documents to the Secretary of the Department of Health (the secretary).
2.203
A maximum of 5 000 civil penalty units will apply to an individual
who is found to contravene proposed section 41AF. Based on the rate for
penalty units as it currently stands this equates to a monetary penalty of up
to $900 000.[88]
With changes to the rate of penalty units scheduled to increase from July 2017,
the maximum penalty will be over $1 million.[89]
2.204
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 the
civil penalty provisions may be regarded as 'criminal' for the purposes of
international human rights law and thereby engage the criminal process rights
under articles 14 and 15 of the International Covenant on Civil and Political
Rights (ICCPR). This was not addressed in the statement of compatibility.
2.205
The committee therefore sought further information from the Minister for
Health 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
2.206
In relation to the questions raised by the committee, the minister's
response provides that:
This measure (proposed new section 41AF) is clearly
identified in the Bill as being a civil penalty, and is plainly distinguishable
as such from the corresponding criminal offences in the Bill relating to the
same
conduct - proposed new sections 41 AD and 41 AE.
Although the maximum levels of these penalties may appear
high, this is designed to reflect the size and nature of the therapeutic goods
industry, and the significant health dangers that major problems with medicines
and medical devices can cause to patients.
It is very important from a public health perspective that
the Act discourage the provision of false or misleading information to the
Therapeutic Goods Administration (TGA) in the context of the carrying out of
its regulatory functions - including in respect of therapeutic goods
manufacturers. If the TGA were to rely on false or misleading information to,
for example, elect not to suspend or revoke a manufacturing licence, this could
potentially have quite serious consequences for public health and safety.
The new information-gathering power in proposed new section
41AB is needed to support the effective regulation of therapeutic goods
manufacturing in Australia so as to safeguard public health, particularly as it
relates to informing the TGA about significant matters such as the quality
assurance and control measures used by a manufacturer, and whether a
manufacturer has been observing the manufacturing principles (as minimum
requirements for ensuring quality and safety of therapeutic goods).
The maximum penalty levels for proposed new section 41AF are
also consistent with the regime throughout the Act of having civil penalties as
an alternative to criminal offences for a range of behaviour that breaches
important regulatory requirements. For example, section 9H of the Act (which
the Committee considered in its Second Report of the 44th Parliament) sets out
a civil penalty for making false statements in, or in connection with a request
to vary an entry for a therapeutic good in the Australian Register of
Therapeutic Goods, with identical maximum penalty levels to proposed new
section 41AF.
It is also important to note that the civil penalty in
proposed new section 41AF would not apply to the public in general, but would
only arise in the specific regulatory context of manufacturers of therapeutic
goods who are licensed under Part 3-3 of the Act.
In addition, proposed new section 41AF does not carry any
sanction of imprisonment for non-payment. Section 42YD of the Act makes it
clear that if the Federal Court orders a person to pay a civil penalty, the
Commonwealth may enforce the order as if it were a judgment of the Court, that
is as a debt owed to the Commonwealth.
With these points in mind, this civil penalty provision would
not seem likely to be 'criminal' for the purposes of international human rights
law and, accordingly, the Committee's question in relation to whether the
measure is consistent with the right to a fair trial would not appear to arise.
The Act also protects a person from being required to pay a
civil penalty if they have already been convicted of an offence relating to the
same conduct, and prohibits criminal proceedings from being started if an order
has been made against the person in civil penalty proceedings for the same
conduct. Any civil penalty proceedings will be stayed if criminal proceedings
relating to the same conduct are, or already have been, started.
In addition, the Act makes it clear that any evidence given
by a person in civil penalty proceedings (whether or not any order was made by
the Court in those proceedings) will not be admissible in criminal proceedings
involving the same conduct.
2.207
Based on the detailed information provided and the particular regulatory
context, the measures appear unlikely to be criminal for the purposes of
international human rights law. Accordingly, the criminal process rights
contained in articles 14 and 15 of the ICCPR are unlikely to apply. It is noted
in this respect that there are also relevant safeguards that would prevent persons
being found liable for both a criminal and civil penalty in relation to the
same conduct.
Committee response
2.208
The committee thanks the Minister for Health for his response and
has concluded its examination of this issue.
2.209 In light
of the additional information provided the committee notes that the measure
appears unlikely to be 'criminal' for the purpose of international human rights
law. The committee notes that this information would have been useful in the
statement of compatibility.
Veterans' Affairs Legislation Amendment (Digital Readiness and Other
Measures) Bill 2016
Purpose |
Seeks to enable the
Secretary of the Department of Veterans' Affairs to authorise the use of
computer programmes to: make decisions and determinations; exercise powers or
comply with obligations; and do anything else related to making decisions and
determinations or exercising powers or complying with obligations. The bill
also empowers the secretary to disclose information about a particular case
or class of persons to whomever the secretary determines, if it is in the
public interest |
Portfolio |
Veterans' Affairs |
Introduced |
House of Representatives,
24 November 2016 |
Right |
Privacy (see Appendix 2) |
Status |
Concluded examination |
Background
2.210
The committee reported on the Veterans' Affairs Legislation Amendment
(Digital Readiness and Other Measures) Bill 2016 (the bill) in its Report 3
of 2017, and requested further information from the minister in relation to
the human rights issues identified in that report.[90]
2.211
In order to conclude its assessment of the bill while it
is still before the Parliament, the committee requested that the minister's
response be provided by 21 April 2017. However, a response was not
received by this date.
2.212
Accordingly, the committee's concluding remarks on the bill are based on
the information available at the time of finalising this report.[91]
Broad public interest disclosure powers
2.213
Schedule 2 of the bill inserts a provision into each of the Military,
Rehabilitation and Compensation Act 2004 (MRCA), Safety, Rehabilitation
and Compensation (Defence-related Claims) Act 1988 (DRCA) and Veterans'
Entitlements Act 1986 to enable the Secretary of the Department of Veterans'
Affairs (DVA) to disclose information obtained by any person in the performance
of their duties under those Acts, in a particular case or class of case, to such
persons and for such purposes as the secretary determines, if the secretary
certifies it is necessary in the public interest to do so.[92]
2.214
If the information to be disclosed is personal information, the
secretary is required to notify the affected person in writing of the intention
to disclose this personal information, and give the person a reasonable
opportunity to provide a response and consider that response.[93]
The secretary will commit an offence if information is disclosed without
engaging with the affected person.[94]
Compatibility of the measure with
the right to privacy
2.215
The right to privacy encompasses respect for informational privacy,
including the right to respect private information and private life,
particularly the storing, use and sharing of personal information.
2.216
The initial human rights analysis noted that Schedule 2 of the bill
engages and limits the right to privacy by bestowing upon the secretary of the
DVA a broad discretionary power to 'disclose any information obtained by any
person in the performance in that persons duties' under the relevant act[95]
'to such persons and for such purposes as the secretary determines'.[96]
2.217
The statement of compatibility for the bill acknowledges that the right
to privacy is engaged and limited by this measure, but states that to the
extent that it may limit rights those limitations are reasonable, necessary and
proportionate.
2.218
The explanatory memorandum sets out the objective for the proposed
amendment:
[t]he information sharing provisions, and related
consequential amendments, are necessary because, with the creation of a
stand-alone version of the [Safety, Rehabilitation and Compensation Act 1988]
with application to Defence Force members, the ability of the [Military
Rehabilitation and Compensation Commission] to share claims information about
current serving members with either the Secretary of the Department of Defence
or the Chief of the Defence Force is more limited than it is under the MRCA.
These amendments will align information sharing under the DRCA with
arrangements under the MRCA.[97]
2.219
The statement of compatibility also sets out the following examples of
when it may be appropriate for the secretary to disclose personal information:
...where there is a threat to life, health or welfare, for the
enforcement of laws, in relation to proceeds of crime orders, mistakes of fact,
research and statistical analysis, APS code of conduct investigations,
misinformation in the community and provider inappropriate practices.[98]
2.220
The initial analysis stated that the objective of ensuring claims
information about current serving members can be shared with either the
Secretary of the Department of Defence or the Chief of the Defence Force would
appear to seek to achieve a legitimate objective for the purposes of
international human rights law.
2.221
The initial analysis stated that in allowing for disclosure in this way,
the measure also appears to be rationally connected to this objective.
2.222
The statement of compatibility sets out that several statutory
safeguards will ensure that the secretary's powers will be exercised
appropriately, including that:
-
the secretary must act in accordance with rules that the minister
makes about how the power is to be exercised;
-
the minister cannot delegate his or her power to make rules about
how the power is to be exercised to anyone;
-
the secretary cannot delegate the public interest disclosure
power to anyone;
-
before disclosing personal information about a person, the
secretary must notify the person in writing about his or her intention to
disclose the information, give the person a reasonable opportunity to make
written comments on the proposed disclosure of the information and consider any
written comments made by the person; and
-
unless the secretary complies with the above requirements before
disclosing personal information, he or she will commit an offence, punishable
by a fine of 60 penalty units.[99]
2.223
However, as noted in the initial analysis these safeguards are not
sufficient to demonstrate that the limitation on the right to privacy is
proportionate to the objective sought to be achieved. For example, although the
secretary must act in accordance with rules made by the minister, there is no
requirement on the minister to make such rules. Under the legislation as
drafted, the secretary is empowered to disclose any personal information to any
person with the sole criteria for the exercise of this power being that the
secretary considers it to be in 'the public interest' to do so.
2.224
The initial analysis noted that the absence in the primary legislation
of any substantive detail as to the circumstances in which personal information
can be disclosed, and to whom, and the absence of any obligation to make rules
confining this power, together created a broad discretionary power to disclose
information which raises concerns as to whether the limitation on the right to
privacy is proportionate to the objective being sought to be achieved.
2.225
The committee therefore sought the advice of the Minister for Veterans'
Affairs as to whether:
-
there are safeguards in place to demonstrate that the limitation
on the right to privacy is proportionate to the objective sought to be
achieved; and
-
there are less restrictive ways to achieve the objective of the
measure (including whether the primary legislation could set limits on the
breadth of the secretary's discretionary power or, at a minimum, it could
require the making of rules that set out how the power is to be exercised).
2.226
As noted above, no response was received by the date requested. In the
absence of this information, it is not possible to conclude that the measure is
compatible with the right to privacy.
Committee comment
2.227
The measure gives the Secretary of the Department of Veterans'
Affairs the power to disclose personal information to any person on any basis
so long as the secretary considers that disclosure to be in the 'public
interest'. The statement of compatibility refers to rules that will govern the
exercise of the secretary's broad discretionary power to disclose information.
However, there is no obligation to make such rules, and their proposed content
is not available to the committee. This broad discretionary power to disclose
personal information raises potential concerns in relation to the right to
privacy.
2.228
Noting in particular that a response was not received from the minister
regarding human rights issues identified in the committee's initial assessment
of the bill, the committee is unable to conclude on the information before it
that the measure is compatible with the right to privacy.[100]
Federal Financial Relations (National Specific Purpose Payments)
Determination 2015-16 [F2016L01934]
Purpose |
Specifies the amounts to be
paid to the states and territories to support service delivery in the areas
of schools, skills and workforce development, disability and housing |
Portfolio |
Treasury |
Authorising legislation |
Federal Financial
Relations Act 2009 |
Last day to disallow |
Exempt |
Rights |
Equality and
non-discrimination; health; social security; adequate standard of living;
children; education; work (see Appendix 2) |
Previous reports |
3 of 2017 |
Status |
Concluded examination |
Background
2.229
The committee first reported on the Federal Financial Relations
(National Specific Purpose Payments) Determination 2015-16 [F2016L01934] in its
Report 3 of 2017, and requested a response from the Treasurer by 21
April 2017.[101]
2.230
The Assistant Minister to the Treasurer's response to the committee's
inquiries was received on 19 April 2017. The response is discussed below
and is reproduced in full at Appendix 3.
2.231
The committee has previously examined a number of related Federal
Financial Relations (National Specific Purpose Payments) Determinations made
under the Federal Financial Relations Act 2009 and requested and
received further information from the Treasurer as to whether they were
compatible with Australia's human rights obligations.[102]
2.232
Based on this additional information provided by the Treasurer, the
committee was previously able to conclude that these determinations were
compatible with human rights.[103]
Payments to the states and territories for the provision of health,
education, employment, housing and disability services
2.233
The Intergovernmental Agreement on Federal Financial Relations (the IGA)
is an agreement providing for a range of payments from the Commonwealth
government to the states and territories. These include National Specific
Purpose Payments (NSPPs), which are financial contributions to support state
and territory service delivery in the areas of schools, skills and workforce
development, disability and housing.
2.234
The Federal Financial Relations Act 2009 provides for the
minister, by legislative instrument, to determine the total amounts payable in
respect of each NSPP, the manner in which these total amounts are indexed, and
the manner in which these amounts are divided between the states and
territories.
2.235
Payments under the determinations assist in the delivery of services by
the states and territories in the areas of health, education, employment,
disability and housing. Accordingly, the determinations engage a number of
human rights.
Compatibility of the measure with
multiple rights
2.236
As noted above, the committee has considered similar NSPP determinations
in a number of previous reports.
2.237
As noted in the initial analysis, under international human rights law,
Australia has obligations to respect, protect and fulfil human rights. This
includes specific obligations to progressively realise economic, social and
cultural (ESC) rights using the maximum of resources available, and a
corresponding duty to refrain from taking retrogressive measures, or backwards
steps, in relation to the realisation of these rights.
2.238
As such, the initial human rights analysis stated that where the
Commonwealth seeks to reduce the amount of funding pursuant to NSPPs, such
reductions in expenditure may amount to retrogression or limitations on rights.
Any backward step in the level of attainment of such rights therefore needs to
be justified for the purposes of international human rights law.
2.239
The statement of compatibility for the Federal Financial Relations
(National Specific Purpose Payments) Determination 2015-16 (the determination)
simply states that the determination 'is compatible with relevant human
rights'.[104]
This mirrors information provided in the statements of compatibility for NSPP
determinations previously considered by the committee.
2.240
In the committee's previous assessment of similar NSPP determinations,
in response to the committee's request, the Treasurer provided additional
information which included a comparison of funding amounts for the various
NSPPs over recent years. This additional information allowed the committee to
conclude on previous occasions that there had been no reduction in funding
allocation to the NSPPs in these determinations, and as such, that these
payments would not have a retrogressive impact on human rights.
2.241
It is relevant to the committee's consideration of the determination
whether there has been any reduction in funding allocation to the NSPPs since
the committee's last assessment at the beginning of 2016. This information is
not provided in the statement of compatibility.
2.242
Accordingly, the committee sought the advice of the Treasurer as to:
-
whether there has been any reduction in the allocation of funding
towards NSPPs since its last assessment of related determinations;
-
whether the determination does or does not support the
progressive realisation of economic, social and cultural rights (such as the
rights to health and education); and
-
if there has been a reduction in the allocation of funding
towards NSPPs, whether this is compatible with Australia's obligations not to
unjustifiably take backward steps (a retrogressive measure) in the realisation
of economic, social and cultural rights.
Minister's response
2.243
The response of the Assistant Minister to the Treasurer provides a range
of relevant information to address these questions.
2.244
In relation to whether there has been a reduction in the allocation of
funding towards NSPPs since the last assessment of related determinations, the
response provides the following table outlining increases in expenditure:
Sector |
2014-15 ($) |
2015-16 ($) |
Increase |
Disability services |
1,393,331,000 |
1,438,826,000 |
45,495,000 |
Affordable housing |
1,305,771,000 |
1,324,052,000 |
18,281,000 |
Skills and workforce |
1,435,176,000 |
1,455,484,000 |
20,308,000 |
2.245
The response further states that even though there was no decrease in
funding on this occasion, a year-on-year decrease in the total payment amount
does not necessarily indicate a retrogressive measure. The response explains
that this is because a change in the parameters underlying indexation formulas
could result in a reduced total payment and other policies and programs may
also have an effect on NSPPS. As an example, the response notes that the
transition to the National Disability Insurance Scheme is likely to result in
reduced funding under the NSPPs but that the total commonwealth government
expenditure will be increasing in the area of disability services.
2.246
In relation to whether the determination supports the progressive
realisation of economic, social and cultural rights, the response notes that:
-
The NSPP for skills and workforce development promotes a range of
rights including the right to education and the right to work;
-
The NSPP for affordable housing promotes the right to an adequate
standard of living specifically in relation to housing;
-
The NSPP for disability services promotes a range of human rights
for persons with disabilities.
2.247
The information provided demonstrates that the allocation of funding
towards NSPPs does not constitute a retrogressive measure under international
human rights law. This allocation is likely to be compatible with Australia's
obligations under international human rights law to progressively realise
economic, social and cultural rights. Moreover, the allocation of funding
appears to promote a range of economic and social rights.
Committee response
2.248
The committee thanks the Assistant Minister to the Treasurer for
his response and has concluded its examination of this issue. The committee
notes that it would have been useful to include the additional information in
the statement of compatibility and recommends that such information be included
in the future.
2.249
Based on the information provided, the allocation of funding
towards National Specific Purpose Payments is likely to be compatible with
Australia's obligations under international human rights law to progressively
realise economic, social and cultural rights. The National Specific Purpose
Payments appear to promote a range of these rights.
Migration Legislation Amendment (2016 Measures No. 4)
Regulation 2016 [F2016L01696]
Purpose |
Amends the Migration
Regulations 1994 to make various changes to the immigration citizenship
policy, including changing the definition of 'member of the family unit' for
most visas (except protection, refugee and humanitarian visas) |
Portfolio |
Immigration and Border
Protection |
Authorising legislation |
Migration Act 1958 |
Last day to disallow |
13 February 2017 |
Right |
Protection of the family
(see Appendix 2) |
Previous reports |
1 of 2017, 3 of 2017 |
Status |
Concluded examination |
Background
2.250
The committee first reported on the Migration Legislation Amendment
(2016 Measures No. 4) Regulation 2016 [F2016L01696] (the regulation) in its Report
1 of 2017, and requested a response from the Minister Immigration and
Border Protection by 3 March 2017.[105]
The minister's response to the committee's initial inquiries was received on 10
March 2017.
2.251
The committee reported again on the regulation in its Report 3 of
2017, and requested a further response from the minister by 21 April 2017.[106]
2.252
The minister's response to the committee's further inquiries was
received on 27 April 2017. The response is discussed below and is reproduced in
full at Appendix 3.
Narrowing the definition of the member of a family unit
2.253
Schedule 4 of the regulation changes the general definition of 'member
of the family unit' such that extended family members are no longer included in
this definition. A member of a family unit will therefore only include the
spouse or de facto partner of a primary applicant, and the dependent
children (under the age of 23 or who are over this age but incapacitated) of
the primary applicant or their partner (previously there was no age limit for
the children of an applicant).[107]
A child over 23 who is not incapacitated will therefore be considered an
extended family member, and would not fall within the definition of a 'member
of the family unit' (and therefore not entitled to family reunion).
2.254
In respect of protection, refugee and humanitarian visas,[108]
a person will continue to be a member of the family unit of another person (the
family head) if the person meets the criteria for the general definition of a
member of a family unit, as well as if the person is a dependent child of any
age or a single dependent relative of any age who is usually resident in the
household of the family head.[109]
2.255
The initial human rights analysis noted that the right to protection of
the family includes ensuring that family members are not involuntarily and
unreasonably separated from one another. The definition of what constitutes
'family' under international human rights law is broad; it refers not only to
spouses, parents and children, but also to unmarried and same-sex couples and
extended family members.[110]
2.256
The initial human rights analysis noted that the measure engages and
limits the right to protection of the family for visa holders, other than
holders of protection, refugee and humanitarian visas,[111]
as it could operate to separate parents and their adult children and extended
members of the same family by excluding those family members from being
considered a 'member of the family unit'. This would apply regardless of the
circumstances of an individual family.
2.257
The statement of compatibility identifies that the right to protection
of the family unit is engaged by the measure, however, it also states that:
...protection of the family unit under articles 17 and 23 [of
the ICCPR] does not amount to a right to enter and remain in Australia where
there is no other right to do so. Nor do they give rise to an obligation on a
State to take positive steps to facilitate family reunification.[112]
2.258
Although Australia's obligations under international human rights law do
not extend to non-citizens over whom Australia has no jurisdiction, where a
person is under Australia's jurisdiction for the purposes of international
human rights law, human rights obligations will apply. As such, Australia is
required not to arbitrarily or unlawfully (for the purposes of international
human rights law) interfere in the family life of visa holders. For example, if
a visa holder is residing in Australia, the government must respect, protect
and fulfil this person's right to protection of their family. This includes
ensuring family members are not involuntarily separated from one another.
2.259
The initial human rights analysis noted that the statement of
compatibility does not explicitly identify the legitimate objective of the
measure; however, it does note that the new provisions are intended to better
align 'migration pathways for relatives of new migrants with those for
Australian citizens and existing permanent residents'.[113]
This analysis noted that it was unclear whether this constituted a legitimate
objective for the purposes of international human rights law.
2.260
The initial analysis further stated that it was unclear whether the
measure was rationally connected to, and a proportionate means of achieving, a
legitimate objective. The committee therefore sought the advice of the Minister
for Immigration and Border Protection as to:
-
whether there is reasoning or evidence that establishes that the
stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
how the measure is effective to achieve (that is, rationally
connected) to that objective; and
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective.
Minister's initial response
2.261
The minister's initial response noted that the adult children of a
primary applicant or of the primary applicant's spouse (or de facto partner)
continue to be eligible to be included where they are aged under 23 years and
are financially dependent. Adult children of any age also continue to be
eligible where they are financially dependent due to incapacity to work.
2.262
The minister's initial response further noted that Australia has a
right, under international law, to take reasonable steps to control the entry, residence
and expulsion of aliens. While it is well-established under international law
that nation states generally have the right to control such immigration
matters, this is subject to particular human rights obligations such as the
right to protection of the family.
2.263
The minister's initial response stated that the right to protection of
the family unit under articles 17(1) and 23(1) of the International Covenant on
Civil and Political Rights (ICCPR) does not amount to a right to enter and
reside in Australia where there is no other right to do so. The minister
further stated that while the ICCPR requires the protection of the family,
there is no positive obligation to take steps to facilitate family
reunification.
2.264
While there is no positive obligation on Australia to facilitate family
reunion, Australia does have international obligations in relation to actions
that interfere with the family life of those within its jurisdiction.
2.265
A measure which limits the ability of certain family members to join
others in a country, or prevents certain family members from staying in a
country, is a limitation on the right to protection of the family, and
therefore must be proportionate to the pursuit of a legitimate objective in
order to be compatible with human rights.[114]
2.266
The committee considered that further information was necessary to
evaluate whether the measure pursues a legitimate objective, is effective to
achieve that objective, and is proportionate to it. Accordingly, the committee
sought the further advice of the minister as to:
-
whether there is reasoning or evidence that establishes that the
stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
how the measure is effective to achieve (that is, rationally
connected) to that objective; and
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective.
Minister's response to the committee's further requests
2.267
In relation to whether the measure pursues a legitimate objective for
the purpose of international human rights law, the minister's response states:
The Minster notes the concerns raised by the committee in its
request for further information and provides the following response to the committee,
which is in addition to information previously provided...
Why the limitation is permissible under international
human rights law
The objective of the amendment is to contribute to the effective
management of Australia’s Migration Programme. Australia has well managed and
targeted migration programmes that are designed to meet social and economic
needs. It is imperative to ensure that the limited places available in targeted
programmes, such as the Skilled Migration Programme and the Family Stream, are
directed to those who are most likely to support and deliver on the intentions
of the programmes. Extended family members excluded by the new definition of MoFU
[Member of the Family Unit] are able to apply for other visa classes where they
meet the eligibility criteria in their own right. In doing so, the extended
family member will be demonstrating their ability to make a positive
contribution to Australia.
In addition, the amended definition of MoFU ensures
consistency with the current framework for the relatives of Australian citizens
and existing permanent residents.
2.268
The minister's response outlines the objective of the measure as meeting
Australia's social and economic needs in the context of targeted migration
programs. Noting the information provided and the broad scope afforded to
states under international law with respect to migration, this appears to be a
legitimate objective for the purpose of international human rights law.
2.269
In relation to how the measure is effective to achieve (that is,
rationally connected to) that objective, the minister's response states:
The former definition allowed for more generous migration
pathways for relatives of new entrants into Australia, who often benefit from
differential visa pricing and processing timeframes attributable to the primary
applicant. The amendment is thus effective in achieving the legitimate
objectives stated, as it promotes the intentions of the Migration Programme and
contributes to its effective management.
2.270
The minister's response also provides a range of information as
to the proportionality of the limitation:
The new definition predominately applies to non-citizens
outside Australia applying for visas to enter Australia. In regard to
non-citizens within Australia’s jurisdiction, this limitation is a reasonable
and proportionate measure to achieve the stated objectives as it:
- includes grandfathering provisions, so that lawful non-citizens
in Australia are not disadvantaged by this change...
- does not prevent extended family members who do not meet
the new MoFU definition to apply for other visa classes in their own right (see
first response to the committee...)
- is consistent with the arrangements for relatives of Australian
citizens and existing permanent residents (see first response to the committee...)
- is more generous than that of similar nations, who are also
signatories to the ICCPR (see first response to the committee)
- will not apply to refugee, humanitarian and protection
visas (see first response to the committee).
2.271
In relation to the effect on current visa holders which also goes to
issues of proportionality, the minister's response additionally provides the
following:
In response to the committee comments provided at Item
1.39 [2.253 above], the Minster advises that these changes are not
retrospective. They predominantly apply to persons who:
- are outside Australia; and
- do not hold a valid visa that allows for entry into
Australia; and
- are seeking to make a new application for a visa to enter
Australia.
In relation to the practical application of MoFU, specific
grandfathering provisions have been introduced as part of this amendment. These
provide that lawful non-citizens living in Australia are not disadvantaged by
this change (refer sub-regulation 1.12(5)).
2.272
It is noted that the measure has the potential to separate parents and
their adult children and other family members and that in particular individual
circumstances this may have a severe effect on an Australian resident's right
to family life. However, on balance, noting the detailed information provided
as to the proportionality of the limit placed on the right to a family life, it
appears that the measure may be a proportionate limit on the right to the
protection of family.
Committee comment
2.273
The committee thanks the Minister for Immigration and Border
Protection for his response and has concluded its examination of this issue.
2.274
The committee notes that the measure may be compatible with the
right to the protection of the family.
Social Security (Class of Visas – Qualifying Residence Exemption)
Determination 2016 [F2016L01858]
Purpose |
Determines classes of visas
for qualifying residence exemptions pursuant to the Social Security Act
1991, such that a waiting period does not apply to a person who holds or
was the former holder of a visa in a determined class in respect of a social
security benefit (other than a special benefit), a pension Parenting Payment
(single), carer payment, a mobility allowance, a seniors health card or a
health care card |
Portfolio |
Social Services |
Authorising legislation |
Social Security Act 1991 |
Last day to disallow |
9 May 2016 |
Rights |
Social security; adequate
standard of living (see Appendix 2) |
Previous reports |
2 of 2017 |
Status |
Concluded examination |
Background
2.275
The committee first reported on the Social Security (Class of Visas –
Qualifying Residence Exemption) Determination 2016 [F2016L01858] (the 2016
Determination) in its Report 2 of 2017, and requested a response from the
Minister for Social Services by 13 April 2017.[115]
2.276
The minister's response to the committee's inquiries was received on 24 April
2017. The response is discussed below and is reproduced in full at Appendix 3.
2.277
The committee first reported on the enabling legislation (the Budget
Savings (Omnibus) Bill 2016 (the bill))[116]
in its Report 7 of 2016,[117]
and, following a response from the Treasurer in respect of the bill, concluded
its consideration of the bill in its Report 8 of 2016.[118]
2.278
Schedule 10 of the bill removed the exemption from the 104-week waiting
period for certain welfare payments[119]
for new migrants who are family members of Australian citizens or long-term
residents with the exception of permanent humanitarian entrants. The committee
found that this measure could not be assessed as a proportionate limitation on
the rights to social security and an adequate standard of living.[120]
The 2016 Determination has been introduced to give effect to the changes
introduced by the bill.
Newly arrived residents' waiting period
2.279
Section 4 of the 2016 Determination revokes the Social Security (Class
of Visas – Qualifying Residence Exemption) Determination 2015 (2015
Determination), which currently determines visas for the purposes of paragraph
7(6AA)(f) of the Social Security Act 1991 (the Act). Together with the
2015 Determination, that paragraph exempts from the waiting period certain visa
holders[121]
in respect of a social security benefit (other than a special benefit), a
pension Parenting Payment (single), carer payment, a mobility allowance, a
seniors health card or a health care card.
2.280
The 2016 Determination puts into effect the amendments in the bill and
provides that from 1 January 2017,[122]
only Referred Stay (Permanent)[123]
visas will be exempted from the waiting period, as prescribed in paragraph
7(6AA)(f) of the Act.
Compatibility of the measure with
the right to social security and right to an adequate standard of living
2.281
As noted in the initial human rights analysis for the instrument, the
right to social security recognises the importance of adequate social benefits
in reducing the effects of poverty and plays an important role in realising
many other economic, social and cultural rights, particularly the right to an
adequate standard of living and the right to health. The right to an adequate
standard of living requires state parties to take steps to ensure the
availability, adequacy and accessibility of food, clothing, water and housing
for all people in Australia, and also imposes on Australia the obligations
listed above in relation to the right to social security.
2.282
As noted in the previous legal analysis in respect of the bill,[124]
the right to social security and the right to an adequate standard of living
are engaged and limited by this measure.
2.283
The statement of compatibility provides that the measure 'engages or
gives effect' to the right to social security and the right to an adequate
standard of living, and that:
[a]ccess to Special Benefit will still be available for a
newly arrived permanent resident who has suffered a substantial change in their
circumstances, beyond their control, and are in financial hardship, after
arrival. There remains no waiting period for family assistance payments for
families with children, such as Family Tax Benefit.[125]
2.284
The committee's previous findings in respect of the enabling legislation
noted in particular that information had not been provided as to how the family
members will be able to meet basic living expenses during the 104-week waiting
period and what specific arrangements, if any, are open to them in situations
of crisis.
2.285
The statement of compatibility in relation to the 2016 Determination
states that access to Special Benefit is available for a newly arrived
permanent resident where there has been a substantial change in their
circumstances.
2.286
The initial human rights analysis in relation to the instrument noted
that, in light of the information provided in the statement of compatibility,
it appears that newly arrived permanent residents would have available to them
a type of payment (Special Benefit), which may serve as a safeguard to meet the
cost of basic necessities. The initial analysis stated that this may support an
assessment that the measure is a proportionate limitation on the right to
social security and the right to an adequate standard of living. However, the
statement of compatibility does not detail whether such safeguards are in place
for other newly arrived residents who are not permanent residents. It is also
not clear what level of support Special Benefit provides or how long it would
apply for.
2.287
Accordingly, the committee sought the advice from the Minister for
Social Services as to the extent to which the Special Benefit is available to
newly arrived residents who are not permanent residents and are in financial
hardship and what is the level of support provided for by Special Benefit and
how long they could be eligible for the Special Benefit.
Minister's response
2.288
In relation to the questions raised by the committee, the minister's
response provides that:
In your letter you seek my clarification as to the extent to
which Special Benefit is available to people who are in Australia on a
temporary visa and the potential level of support available to them through
this payment. I appreciate the time you have taken to bring this matter to my
attention.
By way of background, Australia's social security system is
different from the contributory systems that operate in other countries. It is
a taxpayer funded, non-contributory system based on the concepts of residence
and need. Access to social security payments is generally restricted to people
who are Australian permanent residents or citizens residing in Australia.
Temporary visa holders, such as 457 visas, student and
tourist visas, are not Australian residents for social security purposes and
are ineligible for social security payments. A person on a temporary visa must
first formalise their immigration status as a permanent resident if they wish
to stay in Australia and have access to social security payments.
There are some exceptions to the general residency rules for
certain determined temporary visa subclasses contained in the Social Security
(Class of Visas - Qualification for Special Benefit) Determination 2015
(No. 2). This determination lists a number of visa subclasses that may be
eligible to receive Special Benefit. These types of visas include temporary
protection visa holders, temporary (provisional) partner visa holders and
people granted a visa for the purposes assisting Australian authorities in
criminal matters related to human trafficking, or slavery.
Illegal Maritime Arrivals (IMAs) who are assessed as engaging
Australia's protection obligations and meet other requirements such as health,
security and character checks can be granted a temporary humanitarian or
protection visa. Holders of a temporary humanitarian or protection visa remain
ineligible for mainstream social security payments because of their temporary
visa status. Their access to social security payments is limited to Special
Benefit and related ancillary payments, such as Rent Assistance, Health Care
Card, and family assistance payments.
People in Australia on a temporary (provisional) partner visa
are generally subject to a 104-week newly arrived residence waiting period
(NARWP) before being eligible for Special Benefit. However, the 104-week
Special Benefit NARWP can be waived in circumstances where the temporary
partner visa holder is in financial hardship due a substantial change of
circumstances beyond their control after they have first entered Australia
(e.g. victim of domestic violence).
Special Benefit is a discretionary income support payment
that provides financial assistance to people who, due to reasons beyond their
control, are in financial hardship and unable to earn a sufficient livelihood
for themselves and their dependants. To receive Special Benefit, it must be
established that the person is not eligible for any other pension or allowance.
The rate of Special Benefit a person receives is
discretionary and depends on their individual circumstances, provided it does
not exceed the rate of Newstart Allowance or Youth Allowance that would
otherwise be payable to the person. In practice, the Newstart Allowance rate
(including supplements) is generally paid to those aged 22 years and over while
the Youth Allowance rate is paid to those under 22 years.
To establish whether a person is in financial hardship or
unable to earn a sufficient livelihood, an available funds test is applied. A
person who requires Special Benefit long-term (more than three months) cannot
receive a payment until their available funds are $5,000 or less.
For a person who requires the payment on a short-term basis
(less than three months), their available funds must be less than their
fortnightly rate of payment. Where a person is a member of a couple, the
partner's available funds are also included in assessing the person's available
funds. In recognition that Special Benefit is a payment of last resort, the
value of any in-kind support (such as free boarding and lodging) and income
(both earned and unearned) is directly deducted from their maximum rate of
payment.
People who receive Special Benefit can be paid for up to 13
weeks from the date of decision. Payment of Special Benefit must then be
reviewed before the delegate determines whether payment can continue. If
payment of Special Benefit continues, it must be reviewed every 13 weeks,
though there is no limit to the length of time a person can receive the
payment.
2.289
The response from the minster provides useful information about
circumstances in which a Special Benefit will be available. In relation to visa
classes in respect of which the 104-week waiting period applies, the minister's
response details that the waiting period may be waived in respect of newly-arrived
migrants on a temporary (provisional) partner visa in circumstances where there
is financial hardship due a substantial change of circumstances beyond their
control. As set out in the response, in these circumstances, the individual may
be able to access the discretionary Special Benefit payment.
2.290
The Special Benefit appears to provide a safeguard such that these
individuals could afford the basic necessities to maintain an adequate standard
of living in circumstances of financial hardship. This supports an assessment
that the measure is a proportionate limitation on the right to social security
and the right to an adequate standard of living. In this respect, it is also
noted that the waiting period for social security does not apply to certain
visa holders. Accordingly, the measure appears likely to be compatible with the
right to social security and the right to an adequate standard of living.
Committee response
2.291
The committee thanks the Minister for Social Services for his
response and has concluded its examination of this issue. The committee notes
that the additional information provided would have been useful in the
statement of compatibility.
2.292
In light of the additional information provided the committee
notes that the measure appears likely to be compatible with the right to social
security.
Mr Ian Goodenough MP
Chair
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