New and continuing matters
1.1
This chapter provides assessments of the human rights compatibility of:
-
bills introduced into the Parliament between 8 and 10 August (consideration of 2 bills from this period has been deferred);[1]
-
legislative instruments received between 23 June and 6 July
(consideration of 10 legislative instruments from this period has been
deferred);[2]
and
-
bills and legislative instruments previously deferred.
1.2
The chapter also includes reports on matters previously raised, in
relation to which the committee seeks further information following
consideration of a response from the legislation proponent.
1.3
The committee has concluded its consideration of the Broadcasting
Legislation Amendment (Broadcasting Reform) Bill 2017 that was previously
deferred.
Instruments not raising human rights concerns
1.4
The committee has examined the legislative instruments received in the
relevant period, as listed in the Journals of the Senate.[3]
Instruments raising human rights concerns are identified in this chapter.
1.5
The committee has concluded that the remaining instruments do not raise
human rights concerns, either because they do not engage human rights, they
contain only justifiable (or marginal) limitations on human rights or because
they promote human rights and do not require additional comment.
Response required
1.6
The committee seeks a response or further information from the relevant minister
or legislation proponent with respect to the following bills and instruments.
Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017
Purpose |
Seeks to make a range of
amendments to the Australian Citizenship Act 2007 and other
legislation including eligibility requirements, good character requirements
and review of decisions |
Portfolio |
Immigration and Border
Protection |
Introduced |
House of Representatives,
15 June 2017 |
Rights |
Obligation to consider the
best interests of the child; children's right to nationality; children to be
heard in judicial and administrative proceedings; quality of law; fair
hearing; to take part in public affairs; freedom of movement (see Appendix
2) |
Status |
Seeking additional
information |
Background
1.7
The committee previously examined the Australian Citizenship and Other
Legislation Amendment Bill 2014 (2014 bill) in its Eighteenth Report of the
44th Parliament and Twenty-Fourth Report of the 44th
Parliament.[4]
1.8
The 2014 bill lapsed at the prorogation of the 44th
parliament.
1.9
The Australian Citizenship Legislation Amendment (Strengthening the
Requirements for Australian Citizenship and Other Measures) Bill 2017 (2017
bill) contains a number of reintroduced measures that were previously contained
within the 2014 bill as well as a number of new measures.
1.10
The analysis below deals with both new and reintroduced measures.
Requirement to provide evidence of English language proficiency
1.11
The bill proposes to amend the general eligibility criteria under
section 21(2) of the Australian Citizenship Act 2007 (Citizenship Act),
to require that applicants have 'competent English'. This is a new measure not
previously introduced. The current provision requires applicants to possess
'basic English', demonstrated via the existing citizenship test.[5] Proposed section 23(9)(a)
provides that the minister may, by legislative instrument, determine the
circumstances in which a person has competent English.
Compatibility of the measure with the right to
equality and non-discrimination
1.12
The right to equality and non-discrimination is protected by articles 2,
16 and 26 of the International Covenant on Civil and Political Rights (ICCPR),
article 2 of International Convention on Economic, Social and Cultural Rights
(ICESCR), article 2 of the Convention on the Rights of the Child (CRC), article
5 of the Convention on the Rights of Persons with Disabilities (CRPD), and the
International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD).
1.13
'Discrimination' under the ICCPR encompasses both measures that have a
discriminatory intent (direct discrimination) and measures which have a
discriminatory effect on the enjoyment of rights (indirect discrimination).[6] The UN Human
Rights Committee has explained indirect discrimination as 'a rule or measure
that is neutral at face value or without intent to discriminate', which
exclusively or disproportionately affects people with a particular personal
attribute (for example race, national origin, language, social origin or
disability).[7]
1.14
Whilst states enjoy some discretion in differentiating between nationals
and non-nationals, they still remain bound by non-discrimination obligations
where differentiating between non-nationals in requests for naturalisation and
citizenship.[8]
The UN Committee on the Elimination of Racial Discrimination has stated that
States are obliged to:
Ensure that
particular groups of non-citizens are not discriminated against with regard to
access to citizenship or naturalization, and to pay due attention to possible
barriers to naturalization that may exist for long-term or permanent residents;
Recognize that
deprivation of citizenship on the basis of race, colour, descent, or national
or ethnic origin is a breach of States Parties’ obligations to ensure
non-discriminatory enjoyment of the right to nationality...[9]
1.15
Differential treatment will not constitute unlawful discrimination if
based on reasonable and objective criteria such that it serves a legitimate
objective, is rationally connected to that objective and is a proportionate
means of achieving that objective.[10]
1.16
The measure differentiates between non-nationals in requests for
citizenship on the basis of their language competency. It therefore engages the
right to equality and non-discrimination on the basis of language, and may also
indirectly discriminate on the basis of national origin, in causing a
disproportionate impact on individuals from countries where English is not the
national language or widely spoken.[11]
Raising the level of English required from basic to competent may also increase
the disproportionate impact on those with disabilities that do not rise to
'mental incapacity', those who have not benefited from regular education,
and/or those whose education was interrupted by war, trauma or other events.
1.17
The concern that the measure would have a disproportionately negative
effect on particular groups finds some support in data on the current test,
which indirectly tests basic English. The top ten countries
of birth for the offshore humanitarian programme are all countries where
English is not an official language.[12] Humanitarian migrants are also more likely to have experienced
traumatic events and interrupted schooling prior to migration.[13] From
2014-2015, 98.6% of those who sat the current citizenship test
passed, and 1,635 people failed. Humanitarian Programme applicants fail the
current test at higher rates than other migration streams, with 8.8% failing
the test compared to 0.03% of Skill Stream applicants, and 2% of the Family
Stream.[14] Humanitarian Programme applicants also sat the test 2.4 times on
average, compared to 1.1 for the Skill Stream. Where
a measure impacts on particular groups disproportionately, it establishes prima
facie that there may be indirect discrimination.[15]
1.18
The statement of compatibility acknowledges that the right to
non-discrimination is engaged, stating:
This measure also
engages Articles 2(1) and 26 of the ICCPR, described above. These Articles are
engaged on the basis that the measure may be seen to discriminate on the basis
of national origin by treating those applicants with lower levels of English
language proficiency differently to applicants who are more proficient in the
English language. However, this is not dissimilar to the current legislation
which requires applicants to possess a basic knowledge of the English language;
this is presently assessed through the existing citizenship test. Further, this
measure emphasises the importance of having competent English language and
ensures that aspiring citizens can integrate into and contribute to the
Australian community, including by obtaining employment, and/or undertaking
vocational/ tertiary education. Insofar as the measure may limit this right,
any such limitation is thus a reasonable and proportionate response to the
objective of promoting social participation and encouraging new citizens to
fully participate in Australian life.
The proposed
amendments increase the level of English language required to be held by
applicants for citizenship by conferral. This requirement ties in with the new
four-year residence requirement to provide aspiring citizens sufficient time to
reach a competent level of English. This is important because English language
proficiency is essential for economic participation, social cohesion and
integration into the Australian community. Those who are currently entitled to
the Adult Migrant English Program will still be able to access this program to
improve their English language skills.[16]
1.19
It is accepted that 'promoting social participation and encouraging new
citizens to fully participate in Australian life' can be a legitimate objective
for the purposes of human rights law. However, it must also be demonstrated
that the limitation imposed is effective in achieving (that is, rationally
connected to) that objective. It is unclear from the statement of compatibility
as to whether the measure will be effective in achieving its stated objective.
The statement of compatibility states that 'English language proficiency is
essential for economic participation, social cohesion and integration into the
Australian community', indicating that 'emphasis[ing] the importance of having
competent English language' will promote full participation in Australian life.[17] However, the
measure itself excludes permanent residents if the minister is not satisfied
that they meet the new 'competent English' standard from participating in
Australian life as citizens. This raises questions as to whether the measure
undermines its apparent objective of promoting social participation.
1.20
Should a measure be rationally connected to a legitimate objective, it
must be demonstrated that the measure is a proportionate means to achieve the stated
objective. Under human rights law, this requires the measure to be the least
rights restrictive means of achieving the stated objective.
1.21
The statement of compatibility mentions a number of exemptions to the
English language requirement.[18]
These exemptions include: persons who have a permanent or enduring physical or
mental incapacity that means that the person is not capable of understanding
the application, demonstrating competent English, or demonstrating an adequate
knowledge of Australia and citizenship; persons over 60 or below 16 years of
age; persons suffering a permanent loss or substantial impairment of hearing,
speech or sight at the time that the application is made; persons born outside
Australia to former Australian citizens; and persons born in Australia who have
never been a national or citizen of any country, and are not entitled to
acquire the nationality or citizenship of any foreign country. These exemptions
do not address all those who may be indirectly discriminated against by the
measure, but do lessen the rights-restrictive nature of the measure.
1.22
The proposed legislation does not specify what is meant by the new
standard of 'competent English' and how the standard will differ from 'basic
English'. Rather, details regarding the definition of 'competent English', the
means of testing, and any further exemptions have been left to delegated
legislation. Some information regarding the intended delegated legislation was
provided in the statement of compatibility:
It is intended that
the instrument will be similar, where relevant, to the Language Tests, Score
and Passports 2015 (IMMI 15/005) prescribed
in the Migration Regulations 1994. The instrument will specify the
English language test providers, scores, and exemptions to meet the English
language requirement prior to applying for citizenship by conferral. It will
also determine the situations where people are not required to undertake
English language testing, for example, if they are a passport holder of the United
Kingdom, the Republic of Ireland, Canada, the United States of America or New
Zealand or have undertaken specified English language studies at a recognised
Australian education provider.[19]
1.23
The Language Tests, Score and Passports 2015 (IMMI 15/005) prescribe
a range of potential tests and measures, with scores ranging from the
International English Language Test System (IELTS) five to eight, using the
General Training exam. Under the IELTS scale, band score six is the lowest
level classified as a 'competent user', defined as 'the test taker has an
effective command of language despite some inaccuracies, inappropriate usage
and misunderstandings. They can use and understand fairly complex language,
particularly in familiar situations.'[20]
Band six of the IELTS, using the Academic test, is the requisite standard for
tertiary study in Australian universities.[21]
The description of the level of English remains the same for both the Academic
and General Training tests.
1.24
The prospect of the measure defining 'competent English' as level six
IELTS raises serious concerns as to whether it is a rationally connected and
proportionate method of achieving the objective of 'promoting social cohesion
and encouraging new citizens to fully participate in Australian life.' First,
it is difficult to accept that tertiary-level or 'fairly complex' English is
required for social cohesion or full participation in Australian life such that
citizenship is to be denied to those who do not meet this standard. Second, the
achievement of that level of English may, when balanced with work and/or caring
duties, be unachievable for many permanent residents[22] from countries where
English is not widely spoken, who have a disability that does not rise to
physical or mental incapacity, whose education was interrupted by war or
trauma, or who are otherwise inexperienced in formal education settings. It
raises questions as to whether a large group of permanent residents would be
unable to vote, serve on a jury, access certain benefits and employment
opportunities, or otherwise participate in the Australian community as citizens
until they reach the age of 60. As non-citizens, they may also be more
vulnerable to visa cancellation and deportation. Those who were not born in
Australia, and do not hold citizenship or nationality of a foreign country,
could be rendered stateless.
1.25
The statement of compatibility refers to the Adult Migrant English
Program (AMEP) remaining available for certain migrants to improve their
English skills. AMEP is funded by the Australian government and provides up to
510 hours of free English language lessons to eligible migrants and
humanitarian entrants, who speak little to no English. On acquiring 'functional
English', or approximately IELTS 4 to 5, clients must exit the
program.[23]
This indicates that this program is not in fact capable of bringing adult
migrants to the standard of 'competent English' as it exists under the IELTS.
In any event, a recent review found that only 7% of AMEP clients achieve
functional English after 500 hours of tuition.[24]
It is therefore difficult to accept that migrants will be supported to acquire
the requisite level of testable English on the information provided in the
statement of compatibility, exacerbating the disproportionate impact on those
who, due to the personal attributes outlined above, require support to reach
that level.
1.26
Finally, the indication in the explanatory memorandum that a person will
not be required to undertake language testing to the 'competent English'
standard if they are a passport holder of the United Kingdom, Republic of
Ireland, Canada, the United States of America or New Zealand, raises the
prospect of further impermissible discrimination between non-nationals in
requests for citizenship. It is not apparent that passport holders from these
countries can be automatically assumed to have 'competent English',
particularly if that standard is aligned to the standard currently required to
study at a university level.
Committee comment
1.27
The right to equality and non-discrimination on the basis of
language, national origin, social origin, and disability is engaged and limited
by the measure. The above analysis raises questions as to whether the measure
is a permissible limitation on those rights.
1.28
The committee therefore seeks further advice from the Minister
for Immigration and Border Protection as to:
-
how the measure itself, rather than the goal of the measure,
is effective to achieve (that is, rationally connected to) the objective of
'promoting social cohesion and encouraging new citizens to fully participate in
Australian life'; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective, including:
-
further information as to the intended definition and means of
demonstrating competent English;
-
any further exemptions to the means chosen;
-
any relevant safeguards in relation to the measure to protect
against the exclusion of persons from citizenship;
-
whether government funded English education will be provided
to the proposed higher standard of competent English, and if so, how it is
proposed to ensure that this education will be effective to ensure that
permanent residents are not excluded from citizenship; and
-
the compatibility of exemptions for passport holders of
certain countries from English language testing with the right to
non-discrimination on the grounds of nationality in requests for citizenship.
Integration into the community requirement
1.29
Proposed section 21(2)(fa) requires the minister to be satisfied that a
person 'has integrated into the Australian community' in order for that person
to be eligible for citizenship by conferral. The matters which the minister may
or must have regard to have been left to the minister to determine via
legislative instrument. This is a new measure not previously introduced.
1.30
The explanatory memorandum provides examples of the type of matters the
minister may determine that he or she may have regard to in deciding whether a
person has integrated into the Australian community:
a person's employment status, study being undertaken by the
person, the person's involvement with community groups, the school
participation of the person's children, or, adversely, the person's criminality
or conduct that is inconsistent with the Australian values to which they
committed throughout their application process.[25]
1.31
In relation to 'conduct inconsistent with the Australian values to which
they have committed', the bill proposes that applicants for citizenship by
conferral be tested on Australian values via the citizenship test, and be
required to sign an Australian Values Statement. Proposed subsection 46(5)
provides for the minister to determine, by legislative instrument, the content
of an Australian Values Statement.
1.32
Additionally, as discussed below, proposed subsection 52(4) excludes
merits review for decisions made personally by the minister in relation to
citizenship by conferral, where the minister issues a notice under section 47
stating that he is satisfied that the decision was made in the public interest.
Compatibility of the measure with multiple rights
1.33
'Integration into the community' is a broad term that may raise
different views as to its meaning. The intended consideration of 'conduct
inconsistent with the Australian values to which they committed throughout
their application process' is similarly imprecise, particularly where those
values are yet to be determined by the minister in a legislative instrument.
1.34
Such broad discretion under proposed section 21(2)(fa) potentially
raises serious concerns of incompatibility with the right to non-discrimination
and equality. Without safeguards, it is possible that the minister could
exercise this power in such a way as to have a disproportionate effect on
people on the basis of disability, nationality, religion, race or sex. There is
nothing on the face of the legislation which appears to limit his or her
discretion. The examples of matters the minister may take into account cited in
the explanatory memorandum are concerning. Many Australians may experience
unemployment, or may not complete study, or may face difficulties with their
children's school participation. It is not evident why it is necessary to
exclude permanent residents from Australian citizenship on these grounds.
1.35
Depending on what matters are considered relevant to assessing
'integration into the Australian community' the measure may also engage and
limit a range of other human rights. For example, the measure may also limit
the right to freedom of expression, should it be construed to include
statements considered by the minister to contravene Australian values.
1.36
As discussed further below, the bill also provides for the minister to exclude
merits review of his decision to refuse a citizenship application, where he
issues a notice that the decision is in the public interest. This raises the
prospect that a person may be denied citizenship, and the important rights and
protection that citizenship entails, without being able to effectively
challenge the minister's determination or test the information that it is based
upon. While judicial review would remain available, it is likely to be an
inadequate safeguard due to the breadth of the power conferred on the minister
by the terms of the proposed bill.
1.37
The statement of compatibility did not acknowledge that the 'integration
into the community' requirement engaged human rights.
Committee comment
1.38
The preceding analysis indicates that the measure engages and may
limit the right to equality and non-discrimination and the right to freedom of
expression and raises questions about the compatibility of the measure with
these rights.
1.39
The committee therefore seeks the advice of the minister as to:
-
whether the measure is compatible with the right to equality
and non-discrimination and other human rights;
-
whether the basis on which a person will be considered to have
integrated into the Australian community could be made clear and defined in the
legislation;
-
why it is not possible to allow merits review for all
assessments made under proposed section 21(2)(fa).
Power to revoke Australian citizenship due to fraud or misrepresentation –
removal of court finding
1.40
Currently, under the Citizenship Act the power to revoke citizenship on
the grounds of fraud requires a conviction for a relevant offence (for example,
the offence of false statements or representations), proven in court to the
criminal standard of beyond reasonable doubt.[26]
1.41
Proposed new section 34AA would give the minister a discretionary power
to revoke a person's Australian citizenship, up to 10 years after citizenship
was first granted, where the minister is 'satisfied' that the person became an
Australian citizen as a result of fraud or misrepresentation by themselves or a
third party. There would be no requirement that the allegations of fraud or
misrepresentation in relation to the citizenship application be proven in court
or that a person be convicted.[27]
The power to revoke citizenship is also available in relation to the
citizenship of children.[28]
This is a reintroduced measure.
1.42
Presently, section 34 of the Citizenship Act further provides that the
minister may also revoke the citizenship of a child whose responsible parent's
citizenship has been revoked. That is, where a responsible parent's citizenship
is revoked under proposed section 34AA there is a consequential power to revoke
their child's citizenship under section 34 of the Citizenship Act.
1.43
If a person's citizenship is revoked under the proposed measure then the
person will be granted an ex-citizen visa.[29]
Compatibility of the measure with
the obligation to consider the best interests of the child
1.44
Under the Convention on the Rights of the Child (CRC), state parties are
required to ensure that, in all actions concerning children, the best interests
of the child is a primary consideration.[30]
1.45
The human rights assessment of the measure in the committee's previous
report on the 2014 bill noted that removing the requirement of a conviction,
and giving the minister a discretionary power to revoke a person's Australian
citizenship, engages and limits the obligation to consider the best interests
of the child. This is because the proposed discretionary power may be exercised
regardless of whether or not it is in the child's best interests. The enjoyment
of a range of rights is tied to citizenship under Australian law, such that the
removal of citizenship may negatively impact upon what is in the child's best
interests.
1.46
The statement of compatibility acknowledges that the measure engages the
obligation to consider the best interests of the child. However, it argues that
the measure is 'not inconsistent' with that obligation as the minister's
discretion 'allows for the child's best interests to be considered as a primary
consideration, although it is noted that the best interests of the child may be
outweighed by other, competing primary considerations'.[31]
1.47
Yet, as noted in the previous human rights assessment, while the
minister may choose to consider the best interests of the child as a matter of
discretion, the proposed power to revoke a child's citizenship will be able to
be exercised regardless of whether or not the minister has, in fact, considered
the best interests of the child. It is for this reason that the measure limits
the obligation to consider the best interests of the child. Further, international
human rights law generally requires that states have sufficient safeguards in
place to prevent violations of human rights occurring. In this context,
unconstrained discretion is generally insufficient for human rights purposes to
ensure that powers are exercised in a manner that is compatible with human
rights.[32]
1.48
The statement of compatibility, while not explicitly acknowledging that
the obligation to consider the best interests of the child is limited, provides
some information as to whether a limitation could be considered to be permissible.[33]
1.49
The statement of compatibility argues that the objective of the measure
is 'preventing abuse of the citizenship program'.[34]
The previous analysis concluded that, based on further
information provided by the minister in relation to the 2014 bill, this was
likely to be considered a legitimate objective for the purposes of
international human rights law. It would have been useful if this further
information were included in the statement of compatibility accompanying the
2017 bill.
1.50
The statement of compatibility further argues that the measure is
rationally connected to that objective on the basis that 'it prevents
applicants from accessing citizenship through fraud or misrepresentation,
including by possible exploitation of a child's application for citizenship,
and provides a disincentive for people to provide fraudulent or misleading information
on application'.[35]
It is acknowledged that in broad terms the measure could act as a disincentive
to fraud and misrepresentation in this way, and therefore may be regarded as
rationally connected to the stated objective of the measure.
1.51
The statement of compatibility points to a number of matters as a basis
for the measure being a proportionate limitation including that:
-
there will be policy guidance in the form of a non-exclusive list
of examples of types of evidence and material that might be needed for the
minister to be 'satisfied' of fraud or misrepresentation;
-
current legislation also allows the minister to revoke
citizenship following a conviction for fraud or misrepresentation in relation
to the citizenship application;
-
there is an interpretative note at the end of proposed section
34AA referring to section 34 of the Citizenship Act which provides that the
child of a person whose citizenship is revoked may also cease to be an
Australian citizen. However, the minister must not revoke a child's Australian
citizenship under section 34 if the child would be rendered stateless;
-
a child whose citizenship is revoked will automatically be
granted an ex-citizen visa (which does not have a travel facility and ceases on
a person's departure from Australia).[36]
1.52
Based on these factors it is unclear that the power to remove
citizenship on the basis that the minister is 'satisfied' that the person
became an Australian citizen as a result of fraud or misrepresentation, by
themselves or a third party, is a proportionate means of achieving the stated
objective. As noted in the previous human rights analysis the following factors
indicate that the measure is not a proportionate limitation:
1.53
First, as the measure explicitly removes the requirement that fraud or
misrepresentation be proven in court to a criminal standard of beyond
reasonable doubt, there is a greater risk that citizenship may be removed in
circumstances where the fraud or misrepresentation did not in fact occur. While
the statement of compatibility indicates that policy guidance will be provided
in relation to the type of evidence that may be relevant for the minister to be
'satisfied' that fraud or misrepresentation has occurred, this is less
stringent than the protection of statutory processes, and falls far short of
the ordinary manner in which fraud or misrepresentation is determined to have
occurred, that is, through adjudication by a court. Such guidance can be
removed, revoked or amended at any time and is not required as a matter of law.
1.54
Second, in the absence of a definition of what constitutes 'fraud' or
'misrepresentation', the minister's power to revoke citizenship on the basis
of, for example, minor or technical misrepresentations may not be proportionate
to the stated objective of the measure.
1.55
Third, the current law, which allows the minister to revoke citizenship following
a conviction, raises questions about whether there are less rights restrictive
means of achieving the stated objective of the measure. In this respect, the
statement of compatibility does not fully explain why the current law is
insufficient for the stated objective of preventing fraud and
misrepresentation.
1.56
Fourth, the measure would allow the removal of a person's citizenship
(including a child's citizenship) where the person concerned is not alleged to
have engaged in or had knowledge of any fraud or misrepresentation themselves.
This would mean that a child's citizenship could be revoked for conduct alleged
to have been committed (but not necessarily proven) by a third party in
relation to the child's application, including conduct of which the child had
no knowledge, or was unable to prevent. Given the extremely serious and
lifelong consequences for a child in such circumstances, the breadth of the
power may be disproportionate to the aims sought.
1.57
Fifth, the protection against a child being rendered stateless appears
to relate to consequential revocation under section 34 of the Citizenship Act
in circumstances where the child's parent's citizenship has been revoked. While
this is a relevant safeguard, it is unclear that it applies in circumstances
where a child's citizenship is revoked directly under proposed section 34AA. If
this is the case, it means that there may still be a risk that a child is
rendered stateless.
1.58
Sixth, while the grant of another visa is a relevant safeguard, such
ex-citizen visas do not have a travel facility attached and may be subject to
cancellation. Accordingly, the measure does not appear to be a
proportionate limitation on the obligation to consider the best interests of
the child as a primary consideration.
Committee comment
1.59
The committee notes that this measure is reintroduced.
1.60
The preceding analysis indicates that the measure engages and
limits the obligation to consider the best interests of the child as a primary
consideration.
1.61
Noting the concerns raised in the previous human rights
assessment of the measure and the above analysis, the committee draws the human
rights implications of the bill to the attention of parliament.
Compatibility of the measure with
the child's right to nationality
1.62
Every child has the right to acquire a nationality under article 7 of
the CRC and article 24(3) of the ICCPR.[37] Accordingly, Australia is required to adopt
measures, both internally and in cooperation with other countries, to ensure
that every child has a nationality when born. Article 8 of the CRC provides
that children have the right to preserve their identity, including their
nationality, without unlawful interference. The terms 'nationality' and
'citizenship' are interchangeable as a matter of international law.
1.63
The previous human rights analysis noted that Australia's obligations
under article 8 of the CRC should be read in accordance with Australia's
obligations under article 3 of the CRC to consider the best interests of the
child and article 8(1) of the Convention on the Reduction of Statelessness,
which provides that a state shall not deprive a person of their nationality if
such deprivation would render the person stateless.[38]
1.64
As noted above, the proposed power would allow for the removal of a child's
Australian citizenship. The previous human rights analysis stated that, by
removing the requirement of conviction, and giving the minister a discretionary
power to revoke a person's Australian citizenship, the proposed measure engages
and may limit a child’s right to nationality.
1.65
While the statement of compatibility for the 2014 bill acknowledged that
this measure engaged the right to nationality, the statement of compatibility
for the 2017 bill does not. The statement of compatibility for the 2017 bill
therefore does not provide any assessment of whether the measure constitutes a
permissible limitation on the right to nationality. The statement of
compatibility for the 2014 bill argued that the measure engaged the right to
nationality but that any limitation was justifiable.[39] It further acknowledged
that the measure could result in statelessness for some children.[40]
1.66
As set out above, it is acknowledged that the measure pursues a
legitimate objective and is rationally connected to that objective. However, as
set out in the previous human rights analysis of the measure, serious concerns
arise as to the proportionality of the measure, noting in particular the
matters above at [1.53] -[1.58]. Of particular concern from the perspective of
a child's right to nationality is that the measure could result in
statelessness for some children. Under international human rights law
ministerial discretion, in and of itself, does not constitute a sufficient
safeguard against the risk that the power may be exercised in a manner which
would not be proportionate to the stated objective of the measure. The same is
true in relation to a requirement that a power be exercised in the public
interest.
Committee comment
1.67
The committee notes that this measure is reintroduced.
1.68
The preceding analysis indicates that the measure engages and
limits a child's right to nationality and could result in statelessness for
some children.
1.69
Noting the concerns raised in the previous human rights
assessment of the measure and the above analysis, the committee draws the human
rights implications of the bill to the attention of parliament.
Compatibility of the measure with
the right of the child to be heard in judicial and administrative proceedings
1.70
Article 12 of the CRC provides that state parties shall assure to a
child capable of forming his or her own views the right to express those views
freely in all matters affecting the child. The views of the child must be given
due weight in accordance with the age and maturity of the child.
1.71
In particular, this right requires that the child is provided the
opportunity to be heard in any judicial and administrative proceedings
affecting them, either directly, or through a representative or an appropriate
body, in a manner consistent with the procedural rules of national law.
1.72
The committee's previous report considered that the proposed
discretionary power to revoke Australian citizenship without a court finding
may limit the right of the child to be heard. The statement of compatibility
does not address this issue and provides no information about whether a child
would be afforded the opportunity to be heard in relation to new administrative
processes. Further, the statement of compatibility does not address the fact
that currently a court process leading to determination as to 'fraud' or
'misrepresentation' may afford particular children the ability to be heard, and
this will be lost in the proposed amendments. Neither the statement of
compatibility to the 2014 bill nor the 2017 bill, nor the minister's response
in relation to the 2017 bill provide any information as to whether the
limitation is permissible. Accordingly, based on the information available it
is not possible to conclude that the measure is compatible with the right of
the child to be heard.
Committee comment
1.73
The committee notes that this measure is reintroduced.
1.74
The preceding analysis indicates that the measure engages and may
limit a child's right to be heard.
1.75
Noting the concerns raised in the previous human rights
assessment of the measure and the above analysis, the committee draws the human
rights implications of the bill to the attention of parliament.
Compatibility of the measure with
the right to a fair trial and fair hearing
1.76
The right to a fair trial and fair hearing is protected by article 14 of
the ICCPR. The right applies to both criminal and civil proceedings, and to
cases before both courts and tribunals. There are also specific further
guarantees in the determination of a criminal charge under articles 14 and 15
of the ICCPR such as the right to be presumed innocent.
1.77
The Citizenship Act presently allows for the power to revoke citizenship
on the grounds of fraud. This requires first that there has been a conviction
for a relevant offence (for example, the offence of false statements or
representations), proven in court to the criminal standard of beyond reasonable
doubt.
1.78
The effect of the measure is to replace current court processes and
determinations of guilt beyond a reasonable doubt solely with the views of the
minister as to whether 'fraud' or 'misrepresentation' has occurred.
Accordingly, the analysis in the committee's previous report considered that
removing the requirement of a conviction, and giving the minister a
discretionary power to revoke a person's Australian citizenship, engages and
may limit the right to a fair trial and fair hearing. The statement of
compatibility does not acknowledge that these rights are engaged and therefore
does not provide an assessment as to whether the measure is compatible with
these rights.
1.79
The previous human rights analysis stated that revoking citizenship via
administrative rather than criminal processes in this way could constitute
punitive action against the individual; and may be considered to be a form of
banishment,[41]
which has historically been regarded as one of the most serious forms of
punishment.[42]
As such the removal of an Australian's citizenship in circumstances which may
ultimately lead to banishment may be considered to be a form of punishment
under international human rights law.[43]
1.80
It is noted that revoking citizenship would be an administrative process
and would not be classified as 'criminal' under Australian law. A person
charged with a criminal offence would continue to enjoy the rights associated
with a criminal trial in Australia.
1.81
However, as set out in the committee's Guidance Note 2, even
if a penalty is classified as civil or administrative under domestic law it may
nevertheless be considered 'criminal' under international human rights law. A
provision that is considered 'criminal' under international human rights law
will engage criminal process rights under articles 14 and 15 ICCPR such as the
right to be presumed innocent, the right not to be tried and punished twice
(the prohibition against double jeopardy) and the right not to incriminate
oneself.[44]
The right to be presumed innocent requires, for example, that the case against
a person be demonstrated on the criminal standard of proof; that is, be proven
beyond reasonable doubt.
1.82
The criteria for determining whether a penalty may be considered
'criminal' under human rights law in circumstances where it is not classified
as criminal under domestic law relates to the nature of the penalty and the
severity of the penalty.
1.83
In relation to the nature of the penalty, the penalty is likely to be
considered criminal for the purposes of human rights law if (a) the purpose of
the penalty is to punish or deter; and (b) the penalty applies to the public in
general (rather than being restricted to people in a specific regulatory or
disciplinary context).
1.84
In this respect, the purpose of the measure is 'preventing abuse of the
citizenship program' and so appears designed to act as a deterrent. Further,
the measure could apply to a broad number of naturalised citizens so that it
may not be limited to a particular regulatory context.
1.85
These factors mean that the measure may be more likely to be considered
'criminal' for the purposes of international human rights law.
1.86
However, even if both these aspects of the test were not fully
satisfied, a penalty may be considered 'criminal' depending upon its severity. The
previous human rights analysis stated that the serious consequences that
ultimately may flow from the revocation of a person's citizenship also mean
that the penalty is more likely to be considered 'criminal' for the purpose of
human rights law. Accordingly, the full range of criminal process rights under
articles 14 and 15 of the ICCPR apply.
1.87
As noted in the previous human rights analysis, given that the proposed
provision removes the requirement that there be prior determination of guilt to
the criminal standard of beyond reasonable doubt, the measure appears to limit
the right to a fair trial. No justification has been provided in relation to
this limitation.
1.88
The right to a fair hearing applies regardless of whether the revocation
of citizenship may be considered criminal. In particular, as noted in the
previous human rights assessment of the measure, internal administrative
processes are not equivalent to external independent and impartial review and,
accordingly, are not sufficient for the purposes of international human rights
law. Also, other provisions of this bill remove the availability of merits
review in relation to personal decisions of the minister stated to be in the
public interest.[45]
This would mean that merits review may not be available in relation to a
decision to revoke citizenship where it is made personally by the minister.
1.89
Finally, it is acknowledged that judicial review would still be
available in relation to such decisions. However, judicial review in Australia
is governed by the Administrative Decisions (Judicial Review) Act 1977
and the common law and represents a considerably limited form of review in that
it allows a court to consider only whether the decision was lawful (that is,
for example, within the power of the decision maker). The court cannot
undertake a full review of the facts (that is, the merits) of a particular case
to determine whether the case was correctly decided.
Committee comment
1.90
The committee notes that this measure is reintroduced.
1.91
The preceding analysis indicates that the measure engages and limits
the right to a fair trial and the right to a fair hearing.
1.92
Noting the concerns raised in the previous human rights
assessment of the measure and the above analysis, the committee draws the human
rights implications of the bill to the attention of parliament.
Compatibility of the measure with
the right to freedom of movement
1.93
The right to freedom of movement is protected under article 12 of the
ICCPR and includes a right to leave Australia as well as the right to enter,
remain, or return to one's 'own country'.[46]
1.94
If a person's citizenship is revoked under the proposed measure then the
person will be granted an ex-citizen visa.[47]
However, an ex-citizen visa ceases on a person's departure from Australia.[48]
Accordingly, the measure may limit the right to freedom of movement.
1.95
As noted in the previous human rights analysis, when a person who has an
ex-citizen visa leaves Australia they may not be able to return, even in
circumstances where Australia is their 'own country', a concept which
encompasses not only a country where a person has citizenship but also one
where a person has strong ties.[49]
While a person on an ex-citizen visa will be able to apply for other visas with
a travel facility, the grant of such a visa is by no means assured. The
question of whether a person has been arbitrarily deprived of their right to
enter one's own country under article 12 of the ICCPR is much broader than
whether domestic laws and processes have been followed. In Nystrom v Australia
the UN Human Rights Committee noted the following in relation to
'arbitrariness' in article 12(4):
even interference provided for by law should be in accordance
with the provisions, the aims and objectives of the Covenant and should be, in
any event, reasonable in the particular circumstances. The Committee considers
that there are few, if any, circumstances in which deprivation of the right
to enter one's own country could be reasonable. A State party must not, by
stripping a person of nationality or by expelling an individual to a third
country, arbitrarily
prevent this person from returning to his or her own country.[50]
1.96
The right to freedom of movement and the right to return to one's own
country were not addressed in the statement of compatibility. In its previous
consideration of the measure the committee sought a response from the minister
about this issue. None of this information has been included in the statement
of compatibility for the 2017 bill.
Committee comment
1.97
The committee notes that this measure is reintroduced.
1.98
The preceding analysis indicates that the measure engages and
limits the right to enter, remain or return to an individual's 'own country'.
1.99
Noting the concerns raised in the previous human rights
assessment of the measure and the above analysis, the committee draws the human
rights implications of the bill to the attention of parliament.
Extending the good character requirement to include applicants for
Australian citizenship under 18 years of age
1.100
Currently, the good character requirements under the Citizenship Act
apply only to applicants aged 18 and over. The concept of 'good character' is
undefined in the Citizenship Act but, as a matter of policy, is understood to
cover the 'enduring moral qualities of a person' and 'whether they are likely
to uphold and obey the laws of Australia, and other commitments they make
through the Australian Citizenship Pledge'.[51]
1.101
The bill would extend these 'good character' requirements to applicants
for Australian citizenship aged under 18 years of age.
Compatibility of the measure with the obligation to consider the
best interests of the child
1.102
Under the CRC, Australia is required to ensure that in all actions
concerning children, the best interests of the child is a primary consideration.[52] In its previous
analysis, the committee's report noted that the extension of the 'good
character' test to child applicants would add an additional requirement for
Australian citizenship which may not be compatible with the best interests of
the child. This is because such a requirement may operate to deny child
applicants Australian citizenship.
1.103
The statement of compatibility acknowledges that the measure engages the
obligation to consider the best interests of the child but argues that 'while
it may be in the best interests of the child to obtain citizenship the best
interests of the child must be weighed against other competing interests.'[53]
It is unclear whether or not this is an acknowledgement that the measure limits
the obligation to consider the best interests of the child.
1.104
Limitations on human rights may be permissible where they pursue a
legitimate objective, are rationally connected to that objective and are a
proportionate means of achieving that objective. It is noted that the statement
of compatibility does not expressly apply this criteria, however, it appears to
identify an objective of the measure as 'preserving the integrity of the
citizenship program'.[54]
It argues that the measure is needed for consistency with the 'good character'
requirements under the Migration Act. However, in the absence of any detailed
explanation, it was not apparent whether the measure, in seeking such
consistency, may be regarded as addressing a pressing or substantial concern
for the purposes of international human rights law.
1.105
In relation to the proportionality of the measure and the availability
of safeguards, the committee's previous report raised a range of concerns.
1.106
As currently drafted, an assessment of the human rights compatibility of
the measure must take into account the possibility that children under 16
(including very young children) may be subject to the 'good character' test.
1.107
The statement of compatibility notes that there is a policy intention
that, in practice, the Australian Citizenship Instructions will instruct
decision makers to consider Convention on the Reduction of Statelessness and the
best interests of the child 'amongst other things'.[55] However, there are no such safeguards
in the legislative measure. As noted above, discretionary and administrative
safeguards alone are likely to be insufficient for the purposes of ensuring
that limitations on human rights are sufficiently circumscribed and are
proportionate.
1.108
Further, the previous human rights analysis of the measure noted that
both international human rights law and Australian criminal law recognise that
children have different levels of emotional, mental and intellectual maturity
than adults, and so are less culpable for their actions.[56]
1.109
In this context, the denial of Australian citizenship to a child on the
basis of such conduct may not be in accordance with accepted understandings of
the capacity and culpability of children under international human rights law.
Further, international human rights law recognises that a child accused or
convicted of a crime should be treated in a manner which takes into account the
desirability of promoting his or her reintegration into society.
1.110
The denial of a child's citizenship on the basis of a 'good character'
test, and its ongoing (and possibly lifelong) effect, may impose a
disproportionately adverse effect on that child's best interests. As such, there
are serious concerns over the proportionality of this measure in pursuing its
stated objective.
Committee comment
1.111
The committee notes that this measure is reintroduced.
1.112
The preceding analysis indicates that the measure engages and
limits the obligation to consider the best interests of the child.
1.113
Noting the concerns raised in the previous human rights
assessment of the measure and the above analysis, the committee draws the human
rights implications of the bill to the attention of parliament.
Citizenship to a child found abandoned in Australia
1.114
Section 14 of the Citizenship Act currently provides that a person is an
Australian citizen if they are found abandoned in Australia as a child unless
the contrary is proved.[57]
1.115
Proposed section 12(8) would replace current section 14 of the
Citizenship Act to provide that a person found abandoned in Australia as a
child is taken to have been born in Australia and to be an Australian citizen
by birth, unless it is proved that the person was outside Australia before they
were found abandoned or they are not an Australian citizen by birth.[58] This measure is
reintroduced.
Compatibility of the measure with
the obligation to consider the best interests of the child and a child's right
to nationality
1.116
As noted above under the CRC, Australia is required to ensure that in
all actions concerning children the best interests of the child is a primary
consideration as well as assuring the right of the child to acquire
nationality.[59]
1.117
The statement of compatibility acknowledges that the measure engages the
obligation to consider the best interests of the child.[60] The previous human rights
analysis noted that the proposed provision creates additional qualification
requirements for Australian citizenship, which may not be in the best interests
of the child. Accordingly, the measure may limit the obligation to consider the
best interests of the child and the rights of the child to nationality.
1.118
The statement of compatibility states that the objective of replacing
current section 14 of the Citizenship Act is to 'clarify the meaning of the
abandoned child provision.'[61]
However, it does not provide supporting reasons to demonstrate that this
objective addresses a pressing or substantial concern.
1.119
Additionally, a limitation must be rationally connected to, and a
proportionate way to achieve, its legitimate objective in order to be permissible
in international human rights law.
1.120
In this regard, it is unclear whether there is a rational connection
between the stated objective of the measure and the terms of the measure
itself. This is because, while the stated objective of the measure is to
'clarify' a provision (with the implication that there is no substantive change
to the provision), the proposed measure in fact introduces a new factor that
can disqualify an abandoned child from being an Australian citizen, which is
that the child was 'outside Australia at any time before [they were] found
abandoned in Australia as a child'.[62]
Accordingly, as noted in the previous human rights analysis, insufficient
information has been provided to justify the limitation for the purpose of
international human rights law.
Committee comment
1.121
The committee notes that this measure is reintroduced.
1.122
The preceding analysis indicates that the measure engages and
limits the obligation to consider the best interests of the child and the right
of the child to a nationality.
1.123
Noting the concerns raised in the previous human rights
assessment of the measure and the above analysis, the committee draws the human
rights implications of the bill to the attention of parliament.
Limiting automatic citizenship at 10 years of age
1.124
Currently section 12 of the Citizenship Act provides that a child born
in Australia will automatically be an Australian citizen if either their parent
is a citizen or permanent resident when they were born or the child is
'ordinarily resident' in Australia for their first 10 years of life.[63] There is a
limited exception in cases where the child's parent is an enemy alien.
1.125
The bill would amend section 12 to deny automatic citizenship for a
child born in Australia in any of the following circumstances arising at any
time during the child’s first 10 years of life:
-
one or both of the child's parents were foreign diplomats;
-
the child did not hold a valid visa (that is, they were present
in Australia as an unlawful non-citizen);
-
the child travelled outside Australia and did not hold a visa
permitting them to travel to, enter and remain in Australia (this will not
apply to New Zealand citizens); or
-
one or both of the child's parents came to Australia before the
child was born, did not hold a substantive visa at the time of the child's
birth and was an unlawful non-citizen at any time prior to the child's birth.[64]
1.126
As the measure amends the circumstances in which Australian citizenship
may be granted to children ordinarily resident in Australia for the first 10
years of their life, the measure engages the obligation to consider the best
interests of the child.
Compatibility of the measure with
the obligation to consider the best interests of the child
1.127
As noted above under the CRC, Australia is required to ensure that in
all actions concerning children the best interests of the child is a primary
consideration.[65]
1.128
While acknowledging that the child's right to nationality is engaged, the
statement of compatibility does not acknowledge that the measure also engages
the obligation to consider the best interests of the child.[66] By preventing certain
children born in Australia from qualifying for Australian citizenship the
measure engages and may limit this obligation.
1.129
In relation to the objective of the measure, the statement of
compatibility states:
this amendment aims to encourage lawful migration and
acquisition of Australian citizenship, and to discourage abuse of the ten year
rule by unlawful non-citizens.[67]
1.130
However, no evidence is provided as to how the measure addresses a substantial
and pressing concern—for example, by providing evidence of any abuse of the
10-year rule.
1.131
Further, no evidence is provided as to how the measure is rationally
connected to this objective.
1.132
As noted in the previous human rights analysis, the measure would apply
to children born in Australia who have lived their whole life in Australia and have
not reached their tenth birthday. It is unclear how denying these children an
automatic right to citizenship is rationally connected to an objective of encouraging
parents to regularise their immigration status before having children in
Australia.
1.133
Limited information is provided in the statement of compatibility as to
whether the measure is proportionate.[68]
It is noted in this respect that further information was previously provided in
relation to the proportionality of the measure in response to the committee's
inquires, however, this was insufficient to satisfy the test of proportionality
as a matter of international human rights law.
Committee comment
1.134
The committee notes that this measure is reintroduced.
1.135
The preceding analysis indicates that the measure engages and
limits the obligation to consider the best interests of the child.
1.136
Noting the concerns raised in the previous human rights
assessment of the measure and the above analysis, the committee draws the human
rights implications of the bill to the attention of parliament.
Personal ministerial decisions not subject to merits review
1.137
Currently, a decision refusing to grant or approve citizenship, or revoke
citizenship, under the Citizenship Act is subject to full merits review by the
Administrative Appeals Tribunal (AAT). The AAT provides an independent review
process, considering afresh the facts, law and policy relating to certain
administrative decisions.
1.138
The bill proposes removing the power of the AAT to review a decision
made by the minister personally under the Citizenship Act, if the minister has
stated in a notice that the decision was made in the public interest.[69] No definition
of what might constitute the public interest is included in the bill.[70] This measure is
reintroduced.
Compatibility of the measure with
the right to a fair hearing
1.139
The right to a fair trial and fair hearing is protected by article 14 of
the ICCPR. The right applies to both criminal and civil proceedings, including
where rights and obligations are determined (suit at law). The
revocation of citizenship involves the removal of an existing right that would
create a suit at law for the purposes of article 14 of the ICCPR; and a decision
to cancel citizenship may create a suit at law having regard to the individual
facts of each case.
1.140
While the bill would preserve judicial review under section 75(v) of the
Constitution and section 39B of the Judiciary Act 1903, judicial review
cannot examine the merits of the decision and is limited to particular grounds
such as an identifiable error of law. Judicial review is therefore not
equivalent to, or a complete substitute for, access to merits review by the
AAT, and so does not fully mitigate the possible limitation on the right to a
fair hearing.
1.141
However, this issue was not identified in the statement of
compatibility and so no assessment is provided regarding the compatibility of
the measure with this right. The committee previously sought the further advice
of the minister about the human rights compatibility of this measure with the
right to a fair hearing.
1.142
The statement of compatibility provides some explanation of the
measure ostensibly in relation to article 16 of the ICCPR and recognition as a
person before the law. However, it does not explain the objective of the
measure and how it addresses a substantial and pressing concern or how the
measure is rationally connected and proportionate to that objective.
Committee comment
1.143
The committee notes that this measure is reintroduced.
1.144
The preceding analysis indicates that, in relation to the
cancellation or revocation of a person's citizenship, removal of a merits
review process engages and limits the right to a fair hearing.
1.145
Noting the concerns raised in the previous human rights
assessment of the measure and the above analysis, the committee draws the human
rights implications of the bill to the attention of parliament.
Ministerial power to set aside decisions of the AAT if in the public
interest
1.146
Currently under the Citizenship Act, a decision refusing or cancelling
approval for a person to become an Australian citizen, because the person was
not of good character or because of doubts as to the person's identity, is subject
to review by the AAT. The AAT is empowered to make a decision setting aside
that refusal or cancellation.
1.147
The bill proposes empowering the minister to set aside such a decision
made by the AAT if the minister's delegate had originally decided that an
applicant for citizenship was not of good character, or was not satisfied as to
the person's identity, and the minister is satisfied it is in the public
interest to set aside the AAT's decision.[71]
This measure is reintroduced.
Compatibility of the measure with
the right to a fair hearing
1.148
As noted above, the right to a fair trial and fair hearing is protected
by article 14 of the ICCPR. The right applies to both criminal and civil
proceedings, including where rights and obligations are determined (suit at law).
Procedures for determining citizenship create a suit at law for the purposes of
article 14 of the ICCPR.
1.149
The statement of compatibility noted that the measure engages the right
to a fair hearing, but concluded that the measure does not 'breach' the right
to a fair hearing as:
-
affected applicants will still be entitled to seek judicial
review; and
-
the 'AAT has stated that the Minister's power to set aside AAT
decisions does not compromise its independence as a tribunal'.[72]
1.150
While the continued constitutional availability of judicial review is acknowledged,
it is not equivalent to, or an effective substitute for, merits review.
Judicial review can only examine the lawfulness of a decision rather than the
merits of a decision. For example, there will be no reassessment of the
substantive question of whether the applicant is of 'good character' in
proceedings for judicial review.
1.151
Further, it is unclear, from the information provided, how the
minister's proposed power to substitute decisions of the AAT with his own
decision does not significantly interfere with the independence and
effectiveness of the current system.
1.152
As the measure allows the minister to substitute and therefore overrule
the decision of the AAT, the committee's previous report considered that the
measure limits the right to a fair hearing, by effectively removing a person's
right to a hearing before an independent and impartial tribunal. Minimal
justification for the measure was provided in the statement of compatibility.
Committee comment
1.153
The committee notes that this measure is reintroduced.
1.154
The preceding analysis indicates that the measure engages and
limits the right to a fair hearing.
1.155
Noting the concerns raised in the previous human rights
assessment of the measure and the above analysis, the committee draws the human
rights implications of the bill to the attention of parliament.
Extension of bars to citizenship where a person is subject to a court
order
1.156
Currently, section 24(6) of the Citizenship Act requires that a person
not be approved for citizenship by conferral when a prescribed period of time
has not passed since they were in prison for certain offences, or the person is
subject to proceedings in relation to certain offences.
1.157
The proposed amendments would extend this bar on approval for
citizenship to cases where a person is subject to home detention or a court
order in connection with proceedings for a criminal offence, or that requires
the person to participate in a residential scheme (including a residential drug
rehabilitation scheme or a residential program for those experiencing mental
illness).[73]
This measure is reintroduced.
Right to equality and
non-discrimination
1.158
As noted above, the right to equality and non-discrimination is
protected by articles 2, 16 and 26 of the ICCPR and article 5 of the CRPD.
1.159
'Discrimination' under the ICCPR encompasses a distinction based on a
personal attribute (for example, race, sex or on the basis of disability)[74]
which has a discriminatory intent (direct discrimination) and measures which
have a discriminatory effect on the enjoyment of rights (indirect
discrimination).[75]
1.160
Differential treatment will not constitute unlawful discrimination if
the differential treatment is based on reasonable and objective criteria such
that it serves a legitimate objective, is effective to achieve that legitimate
objective and is a proportionate means of achieving that objective.[76]
1.161
The statement of compatibility identifies that the right to equality and
non-discrimination is engaged by the measure because the proposed bar on
approval for citizenship 'extends to people who have a mental illness and who
have been subject to an order of the court requiring them to participate in a
residential program for the mentally ill'.[77]
1.162
It states that the measure pursues the legitimate objective of 'strengthening
and achieving greater consistency across the citizenship programme, in the
interests of the Australian community and national security'.[78] It argues that the measure is
rationally connected to this objective as '[b]eing of good character is a
fundamental tenet of the citizenship programme'.[79]
1.163
The statement of compatibility argues that the measure is proportionate
to the stated objective because 'it reflects the criminal law, which imposes
consequences for committing a criminal offence on all persons, including those
with a mental illness'.[80]
1.164
However, there is no clear relationship between this explanation of the
measure and the terms of the measure itself which concerns the citizenship of a
person who would otherwise be entitled to citizenship by conferral. This
indicates that the measure may not be rationally connected to or a
proportionate means of achieving its objective.
1.165
As noted in the committee's previous report, while the explanation of
the measure refers to 'consequences for committing a criminal offence',[81] the measure is
considerably broader and would affect people who have not committed a criminal
offence but are merely involved in 'proceedings for an offence'. This would
include people who have not been convicted and who are on bail or on remand, or
who have been determined to be unfit to plead or have been found not guilty of
an offence by reason of mental illness. While noting that the bar on gaining
citizenship is not necessarily permanent (that is, unless the individual is
permanently confined in a psychiatric facility), it would still operate to bar
a person who is subject to a court order from citizenship whether or not they
had been convicted of a crime at least on a temporary basis. It would also
leave the relevant person vulnerable to visa cancellation on character grounds.
Further, the statement of compatibility does not show how denying citizenship
to individuals who are confined on the basis of mental illness upholds the
integrity of the citizenship program.
Committee comment
1.166
The committee notes that this measure is reintroduced.
1.167
The preceding analysis indicates that the measure may not be
compatible with the right to equality and non-discrimination on the basis of
disability.
1.168
Noting the concerns raised in the previous human rights
assessment of the measure and the above analysis, the committee draws the human
rights implications of the bill to the attention of parliament.
Migration Amendment (Validation of Decisions) Bill 2017
Purpose |
Seeks to ensure that visa
cancellations or refusals based on information gained from gazetted law
enforcement officers under section 503A of the Migration Act 1958
remain valid at law |
Portfolio |
Immigration and Border
Protection |
Introduced |
House of Representatives,
21 June 2017 |
Rights |
Prohibition on expulsion
without due process; liberty; protection of the family; non-refoulement;
freedom of movement; and effective remedy (see Appendix 2) |
Status |
Seeking additional
information |
Validation of decisions
1.169
Section 503A of the Migration Act 1958 (the Migration Act)
provides that information communicated to an authorised migration officer by a
gazetted agency (such as law enforcement or intelligence agencies or a war
crimes tribunal) for the purposes of making a decision to refuse or cancel a visa
on character grounds, is protected from disclosure, not only to the person
whose visa is refused or cancelled, but also to any court or tribunal reviewing
that decision, and to parliament or a parliamentary committee. The Minister has
the non-compellable discretion to allow the disclosure after consulting the
gazetted agency. Section 503A is currently being challenged before the High
Court of Australia in Graham and Te Puia.[82]
1.170
The Migration Amendment (Validation of Decisions) Bill 2017 (the bill)
seeks to ensure that should section 503A be found to be invalid, the minister
or delegate's decisions regarding visa refusal or cancellation will remain
valid, notwithstanding their reliance upon or regard to confidential
information purportedly protected by section 503A.
Compatibility of the measure with
the prohibition on expulsion without due process
1.171
The right not to be expelled from a country without due process is
protected by article 13 of the International Covenant on Civil and Political
Rights (ICCPR). It provides:
An alien lawfully in the territory of a State Party to the
present Covenant may be expelled therefrom only in pursuance of a decision
reached in accordance with law and shall, except where compelling reasons of
national security otherwise require, be allowed to submit the reasons against
his expulsion and to have his case reviewed by, and be represented for the
purpose before, the competent authority or a person or persons especially
designated by the competent authority.
1.172
The article incorporates notions of due process also reflected in
article 14 of the ICCPR,[83]
which protects the right to a fair hearing.[84]
To the extent that domestic law gives authority to courts or tribunals to
decide on expulsion or deportation decisions, the guarantees of fairness and
equality of arms apply.[85]
These demand that each side be given the opportunity to contest all the
arguments and evidence adduced by the other party.[86] The Human Rights Committee
has stated that the article requires that 'an alien [...] be given full facilities
for pursuing his remedy against expulsion so that this right will in all
circumstances of his case be an effective one'.[87]
1.173
Under section 503A, both the person whose visa is refused or cancelled
and any authority outside the department reviewing the decision are unable to
require production of particular information on which the decision is based.
The person is therefore prevented from effectively contesting or correcting
potentially essential information and the reviewing authority is unable to scrutinise
whether the decision was correct or reasonably made, thereby engaging and
limiting the right of an alien to due process prior to expulsion.
1.174
Article 13 does contain an exception to the requirement to afford due
process where 'compelling reasons of national security' exist. However, section
503A is broader than this exception. It does not require the minister to be
satisfied that compelling national security reasons exist, but merely that the
information relied upon is communicated to an authorised migration officer by a
gazetted agency on the condition that it be treated as confidential. Indeed,
there is no requirement to assess whether confidentiality is necessary against
any standards. This raises serious questions as to whether section 503A is compatible
with article 13.
1.175
The bill seeks to validate decisions to cancel or refuse a visa which
had regard to information protected under section 503A, in the event that the
section is struck down on the basis of a constitutional challenge currently
before the High Court of Australia.[88]
In seeking to validate decisions which relied upon section 503A information in
the event that the provision is determined to be unconstitutional and thereby
invalid, it further limits the right to due process prior to expulsion under
article 13.
1.176
The right to due process prior to expulsion was not addressed in the
statement of compatibility, and accordingly no assessment was provided as to
whether the limitation was permissible. In the context of other rights,
considered below, the statement of compatibility stated that the measure is a
reasonable response to a legitimate objective. As discussed below at 1.192 to 1.193,
whilst the safety of the community and the integrity of the migration system
are capable of constituting legitimate objectives under international human
rights law, there are serious questions as to whether the measure is effective
to achieve, and proportionate to, those objectives.
Committee comment
1.177
The preceding analysis raises questions as to the compatibility
of the measure with the right to due process prior to expulsion under article
13 of the ICCPR.
1.178
The committee therefore requests the advice of the minister as to
the compatibility of the measure with the right to due process prior to
expulsion under article 13 of the ICCPR, particularly regarding the inability
of affected individuals to contest or correct information on which the refusal
or cancellation is based, and the absence of any standard against which the
need for confidentiality of section 503A information is independently assessed
or reviewed.
Compatibility of the measure with
the right to liberty
1.179
The right to liberty, contained in Article 9 of the ICCPR, prohibits the
arbitrary and unlawful deprivation of liberty. This prohibition against
arbitrary detention requires that the state should not deprive a person of
their liberty except in accordance with law, but the concept of arbitrariness
also extends beyond the apparent 'lawfulness' of detention to include elements
of injustice, lack of predictability and lack of due process.[89]
The right to liberty applies to all forms of deprivations of liberty, including
immigration detention, although what is considered as arbitrary may vary
depending on context.
1.180
Under the Migration Act, the cancellation of the visa of a non-citizen
living in Australia results in that person being classified as an unlawful
non-citizen, and subject to mandatory immigration detention prior to removal or
deportation.[90]
By validating decisions to cancel a visa which may otherwise be invalid if
section 503A is found invalid, the measure accordingly engages and limits the
right to liberty.
1.181
However, the statement of compatibility argues that the bill does not
limit the right to liberty as it merely:
introduces a legislative amendment that preserves the grounds
upon which certain non-citizen's visas were cancelled, or their applications
refused, the result of which may be subsequent detention, supporting existing
laws that are well-established, generally applicable and predictable.[91]
1.182
The concept of 'non-arbitrariness' under international law is not
limited to general applicability and predictability, although it includes both
those concepts. The detention of a non-citizen on cancellation of their visa
will generally not constitute arbitrary detention, as it is permissible to
detain a person for a reasonable time pending their deportation. Detention may
however become arbitrary in the context of mandatory detention, where
individual circumstances are not taken into account, and a person may be
subject to a significant length of detention without knowing or being able to
contest the information on which their detention is based before an independent
body.[92]
1.183
In relation to section 503A, arbitrariness may arise because a person is
prevented from accessing and addressing evidence upon which the visa
cancellation, and therefore detention pending removal, is based. In seeking to
broadly validate decisions which had regard to section 503A information, the
bill would perpetuate the existing serious concerns in relation to section
503A, including the engagement and limitation of the right to liberty.
1.184
In relation to the risk of indefinite detention, the statement of
compatibility states that '[t]he determining factor [in whether detention is
arbitrary] is not the length of detention, but whether the grounds for the
detention are justifiable'.[93]
However, as stated by the United Nations Human Rights Committee (UNHRC) '[t]he
inability of a state to carry out the expulsion of an individual because of
statelessness or other obstacles does not justify indefinite detention'.[94]
The risk of arbitrariness in this situation is exacerbated where a person is
deprived of legal safeguards to effectively challenge the basis of their
detention, such as access to information relied upon in refusing or cancelling
a visa.[95]
1.185
A measure may permissibly limit the right to liberty where it supports a
legitimate objective, is rationally connected to that objective, and is a
proportionate way to achieve that objective.
1.186
The statement of compatibility identifies the objectives of the measure
as being:
...[to ensure] the safety of the Australian community and
integrity of the migration programme — as it seeks to uphold certain character
refusal or cancellation decisions in the event of a High Court ruling on the
validity of section 503A. These non-citizens pose an unacceptable risk to the
Australian community if their cancellation decisions are overturned and they
are required to be released from immigration detention into the community.[96]
1.187
The statement of compatibility indicates that the measures are
reasonable as:
This Bill will not prevent the affected non-citizens from
individually challenging their decisions in a court. The detention of a
non-citizen under these circumstances is considered neither unlawful nor
arbitrary under international law.[97]
1.188
However, it is unclear upon what basis an affected non-citizen would be
able to challenge their visa cancellation or refusal in a court. Indeed, the
intent of the measure appears to be to preclude affected persons from
successfully challenging visa cancellations or refusals made in reliance on
information that was not disclosed pursuant to section 503A, in the event that
section 503A is held to be invalid.
1.189
With particular reference to the risk that a person may be arbitrarily
detained, the statement of compatibility states:
The Government has processes in place to mitigate any risk of
a non-citizen's detention becoming indefinite or arbitrary through: internal
administrative review processes; Commonwealth Ombudsman enquiry processes,
reporting and Parliamentary tabling; and, ultimately the use of the Minister's
personal intervention powers to grant a visa or residence determination where
it is considered in the public interest.[98]
1.190
As considered in a previous human rights assessment of visa cancellation
powers,[99]
ensuring the safety of Australians and the integrity of the immigration system
are capable of constituting legitimate objectives for the purposes of
international human rights law.
1.191
However, the measure seeks to validate administrative decisions made
with regard to information which was not disclosed to the affected person, and
could not be effectively tested in a court for reliability, relevance or
accuracy. The effectiveness of the measure to ensure the safety of Australians
and the integrity of the immigration system is therefore questionable.
1.192
Moreover, in order for a measure to be a proportionate limitation on a
right, it must be the least rights restrictive means of achieving the legitimate
objective of the measure. It is difficult to see how validating decisions to
cancel visas based on information that is kept from the person affected,
broadly as a class, is the least rights restrictive means of achieving the
stated objectives. If the initial cancellation is put into question as a result
of a High Court decision invalidating section 503A, it would appear to be
possible for the minister to make a renewed decision to refuse or cancel the visa
of an affected person on an individual basis. Insofar as information is sought
to be kept from the public or the affected person for reasons of national
security, the statement of compatibility does not address alternative means
that may be available that would protect such information only to the extent
required for national security or alternative processes that would still allow
such information to be tested in some way before a court or tribunal. More
broadly, it is not clear from the statement of compatibility why existing criminal
justice or national security mechanisms are insufficient to counter any risk a
person may pose should the cancellation of their visa be invalid as a
consequence of such a High Court decision.
1.193
No detail is provided regarding the functioning or effectiveness of
internal review processes, or the oversight processes referred to in the
statement of compatibility. While the administrative
and discretionary processes identified may in some circumstances mitigate the
risk of arbitrary or indefinite detention, they are unlikely to constitute
sufficient safeguards under international law, due to their discretionary
nature.[100]
Committee comment
1.194
The preceding analysis raises questions as to the compatibility
of the measure with the right to liberty.
1.195
The committee therefore requests the advice of the Minister for
Immigration and Border Protection as to the compatibility of the measure in
relation to the right to liberty, particularly regarding:
-
why the broad legislative validation of a class of decisions is
required, when it appears that the minister could make a renewed decision to
refuse or cancel the visa of an affected person on an individual basis;
-
any alternative means that may be available that would protect
such information only to the extent required for national security or
alternative processes that would still allow such information to be tested in
some way before a court or tribunal; and
-
the availability of less rights restrictive criminal justice or
national security mechanisms to address any risk posed by affected individuals.
Compatibility of the measure with the
right to protection of the family
1.196
The right to protection of the family under article 17 of the ICCPR
includes ensuring that family members are not involuntarily and unreasonably
separated from one another. This right may be engaged where a person is
expelled from a country without due process and is thereby separated from their
family life.[101]
The measure engages and limits the right to protection of the family as the
validation of a visa cancellation could operate to separate family members.
1.197
The statement of compatibility reasons that the amendments cannot be
said to give rise to arbitrary interference with family life as they do not
'expand visa cancellation powers or impact the grounds upon which a person may
have had their visa cancelled'.[102]
1.198
However, the bill seeks to validate decisions to cancel or refuse a visa
which had regard to information protected under section 503A, in the event that
they would otherwise be invalid. In each such individual case, the measure has
potential for arbitrary interference with family life, due to a lack of due
process provided to the affected person.
1.199
Of relevance in this respect is the case of Leghaei v Australia,
in which the author of the communication to the UNHRC was denied a permanent
visa to remain in Australia on the basis that the author had been assessed by
the Australian Security Intelligence Organisation (ASIO) as being a threat to
national security. His wife and four children were either Australian citizens
or permanent residents. The UNHRC found a violation of article 17 of the ICCPR:
While his legal representatives were provided with
information on evidence held against him, they were prevented, by a decision by
the judge, from communicating to the author any information that would permit
him to instruct them in return and to refute the threat that he allegedly posed
to national security.
In light of the author's 16 years of lawful residence and
long-settled family life in Australia and absence of any explanation from the
State party as to the reasons for terminating his right to remain, except for
the general assertion that it was done for 'compelling reasons of national security',
the Committee finds that the State party's procedure lacked due process of law...
the Committee considers that the State Party has violated the author's rights
under article 17, read in conjunction with article 23...[103]
1.200
Section 503A goes further than the provision at issue in Leghaei v
Australia in withholding the information from not only the person, but
their lawyer and the court. There is therefore a serious risk that decisions
based on information protected by section 503A limit the right to freedom from
arbitrary interference in family life. The statement of compatibility did not
address the matters raised in Leghaei v Australia.
Committee comment
1.201
The preceding analysis raises questions as to the compatibility
of the measure with the right to protection of the family.
1.202
The committee therefore requests the advice of the minister as to:
-
any safeguards in relation to the particular circumstances of families;
and
-
the concerns outlined in Leghaei v. Australia, including
the inability of affected individuals to contest or correct information on
which the refusal or cancellation is based.
Compatibility of the measure with
the right to non-refoulement and the right to an effective remedy
1.203
Australia has non-refoulement obligations under the Refugee Convention,
the ICCPR and the Convention Against Torture (CAT). This means 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.[104]
Non-refoulement obligations are absolute and may not be subject to any limitations.
1.204
As the committee has previously stated on numerous occasions, effective
and impartial review by a court or tribunal of decisions to deport or remove a
person, including merits review in the Australian context, is integral to giving
effect to non-refoulement obligations.[105]
1.205
The statement of compatibility acknowledges that the bill may 'engage
[the right to non-refoulement] because one eventual consequence of confirming
the validity of decisions to refuse or cancel a visa may be removal from Australia'.
However, it goes on to state that the amendments do not set out that the
automatic consequence of validating the decision will be removal from Australia
and that consideration of non-refoulement obligations is undertaken 'before a
non-citizen is considered to be available for removal from Australia. Any
removal from Australia is conducted in accordance with Australia's
non-refoulement obligations'.[106]
1.206
Under section 501E of the Migration Act, a person whose visa is refused
or cancelled on character grounds is prohibited from applying for another visa.[107]
Section 198 of the Migration Act requires an immigration officer to remove an
unlawful non-citizen in a number of circumstances as soon as reasonably
practicable. Section 197C of the Migration Act also provides that, for the
purposes of exercising removal powers under section 198, it is irrelevant
whether Australia has non-refoulement obligations in respect of an unlawful
non-citizen. There is no statutory protection ensuring that an unlawful
non-citizen to whom Australia owes protection obligations will not be removed
from Australia, nor is there any statutory provision granting access to
effective and impartial review of the decision as to whether removal is
consistent with Australia’s non-refoulement obligations. As stated in previous
human rights assessments, ministerial discretion not to remove a person is not
a sufficient safeguard under international law.[108]
Therefore concerns remain that the measure may engage and limit the right to
non-refoulement in conjunction with the right to an effective remedy.
Committee comment
1.207
The committee notes that the obligation of non-refoulement is absolute
and may not be subject to any limitations.
1.208
The committee notes that the measure does not provide a non-discretionary
bar to refoulement, nor merits review of decisions relating to the validation
of visa cancellation or refusal decisions, and is therefore likely to be
incompatible with Australia's obligations under the ICCPR and the Convention
Against Torture.
Compatibility of the measure with
freedom of movement (right to enter one's own country)
1.209
The right to freedom of movement is protected under article 12 of the
ICCPR and includes a right to leave Australia as well as the right to enter,
remain, or return to one's 'own country'.[109]
1.210
The reference to a person's 'own country' is not restricted to the
formal status of citizenship. It includes a country to which a person has very
strong ties, such as the country in which they had resided for a substantial
period of time and established their home.[110]
1.211
The right to freedom of movement is engaged by this measure, as an
eventual consequence of validating visa cancellation decisions is the
deportation and re-entry ban of a person who may, despite not holding formal
citizenship, have such strong ties to Australia that they consider Australia to
be their 'own country'.
1.212
The statement of compatibility does not acknowledge that the right to
enter one's own country is engaged and limited, however in the context of other
rights, states that the measure is a reasonable response to a legitimate
objective. As discussed above at 1.192 to 1.193, whilst the safety of the
community and the integrity of the migration system are capable of constituting
legitimate objectives under international human rights law, there are serious
questions as to whether the measure is effective to achieve, and proportionate
to, those objectives.
Committee comment
1.213
The preceding analysis raises questions as to the compatibility
of the measure with the right to freedom of movement (the right to enter one's
own country).
1.214
The committee therefore seeks further information from the minister as
to the proportionality of the measure, in particular regarding any safeguards
applicable to individuals for whom Australia is their 'own country', such as
ensuring their visa is only cancelled as a last resort where other mechanisms
to protect the safety of the Australian community are unavailable.
Compatibility of the measure with
the right to an effective remedy
1.215
Should section 503A impermissibly limit a human right, those affected
have the right to an effective remedy. The right to an effective remedy is
protected by article 2 of the ICCPR, and may include restitution, guarantees of
non-repetition of the original violation, or satisfaction. The right to an
effective remedy may take many forms, however it is not able to be limited
according to the usual proportionality framework.
1.216
In relation to the human rights implications of section 503A, the right
to an effective remedy would likely include a fresh review of the expulsion
decision, where the person affected is entitled to access and challenge adverse
evidence, including section 503A protected information.
1.217
Should section 503A be declared invalid or read down in the current
litigation before the High Court, it is unclear whether the bill would allow
affected persons to challenge the decision anew and access the information
previously protected by section 503A in those proceedings.
1.218
The statement of compatibility does not acknowledge that the right to an
effective remedy was engaged by the measure.
Committee comment
1.219
The committee therefore seeks the advice of the minister as to whether
in the event that section 503A is held to be invalid, a person whose decision
is validated under the amendments will be able to challenge the refusal or cancellation
decision anew and access information previously protected under section 503A,
in those proceedings.
Social Services Legislation Amendment (Better Targeting Student Payments)
Bill 2017
Purpose |
Seeks to amend the
Social Security Act 1991 to restrict access to the relocation scholarship
to students relocating within Australia and students studying in Australia |
Portfolio |
Social Services |
Introduced |
House of Representatives,
21 June 2017 |
Right |
Social security (see Appendix
2) |
Status |
Seeking additional
information |
Restricting access to the relocation scholarship
1.220
The relocation scholarship provides supplementary payments to recipients
of Youth Allowance or ABSTUDY who relocate for tertiary study.[111]
1.221
The Social Services Legislation Amendment (Better Targeting Student
Payments) Bill 2017 (the bill) seeks to remove access to the relocation
scholarship for:
-
students whose parental home or usual place of residence is
outside of Australia and who relocate to attend university in Australia; and
-
students studying in Australia who relocate to undertake part of
their Australian courses outside of Australia.[112]
Compatibility of the measure with
the right to social security
1.222
The right to social security recognises the importance of adequate
social benefits in reducing the effects of poverty and plays an important role
in realising many other rights.
1.223
Under international human rights law, Australia has obligations to
progressively realise the right to social security using the maximum of
resources available. Australia has a corresponding duty to refrain from taking
retrogressive measures, or backwards steps, in relation to the realisation of
this right. Restricting access to the relocation scholarship would appear to be
a backwards step in relation to social security and accordingly this limitation
on the level of attainment needs to be justified. It is noted that for an
individual student the loss of the relocation scholarship is significant as it
currently pays $4,376 in the first year and between $2,189 and $1,094 in
subsequent years in addition to regular Youth Allowance or ABSTUDY social
security payments.[113]
1.224
Limitations on the right to social security may be permissible providing
that they address a legitimate objective, are rationally connected to that
objective and are a proportionate way to achieve that objective. The statement
of compatibility acknowledges that the measure engages the right to social
security and identifies the purpose of the measure as to 'simplify and
streamline the delivery of the Relocation Scholarship to better reflect the
policy intent of the Scholarship'.[114]
However, 'simplifying' and 'streamlining' do not constitute legitimate
objectives for the purposes of international human rights law and do not
acknowledge the extent of the payment reduction. Rather, a legitimate objective
must address a pressing or substantial concern, and not simply seek an outcome
regarded as desirable or convenient.
1.225
It is noted that the statement of compatibility identifies some
safeguards that may go to the proportionality of the limitation, and therefore
its compatibility with human rights. However, in order to assess whether the
measure is a proportionate limitation, it is first necessary to identify a
legitimate objective.
Committee comment
1.226
The preceding analysis raises questions as to whether the measure
is a permissible limitation on the right to social security.
1.227
The committee therefore seeks the advice of the minister as to:
-
whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective for
the purposes of human rights law;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective; and
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective.
Social Services Legislation Amendment (Welfare Reform) Bill 2017
Purpose |
Seeks to amend various acts
to: create a Jobseeker Payment to replace seven existing payments as the main
payment for people of working age from 20 March 2020 and replace other
payment types; remove the ability of Newstart Allowance and certain special
benefit recipients aged 55 to 59 to satisfy the activity test by engaging in
voluntary work for at least 30 hours per fortnight; remove certain exemptions
for drug or alcohol dependence; provide that a job seeker's Newstart
Allowance or Youth Allowance be payable from the date they attend their
initial appointment with their employment services provider; provide that job
seekers are not able to use drug or alcohol dependency as an excuse for
failing to meet their requirements; introduce a new compliance framework for
mutual obligation requirements in relation to participation payments;
establish a two year drug testing trial in three regions for 5,000 new
recipients of Newstart Allowance and Youth Allowance; enable certain
information obtained in the course of an administrative action to be used in
subsequent investigations and criminal proceedings; and to exempt two social
security laws from the operation of the Disability Discrimination Act 1992 |
Portfolio |
Social Services |
Introduced |
House of Representatives,
22 June 2017 |
Rights |
Social security; adequate
standard of living; equality and non-discrimination; privacy; protection of
the family; rights of children (see Appendix 2) |
Status |
Seeking additional
information |
Nature of key rights engaged
1.228
The Social Services Legislation Amendment (Welfare Reform) Bill 2017
(the bill) contains a number of schedules that impact on the administration,
qualification and receipt of social security.
1.229
These measures engage the right to social security and the right to an
adequate standard of living. The human rights assessment of the bill below
addresses individual measures that raise human rights concerns in relation to
these rights.
1.230
The right to social security recognises the importance of adequate
social benefits in reducing the effects of poverty and plays an important role
in realising many other rights. The right to an adequate standard of living
requires state parties to take steps to ensure the availability, adequacy and
accessibility of food, clothing, water and housing.[115]
1.231
Under international human rights law, Australia has obligations to
progressively realise the right to social security and the right to an adequate
standard of living using the maximum of resources available. Australia has a
corresponding duty to refrain from taking retrogressive measures, or backwards
steps, in relation to the realisation of these rights.
1.232
A retrogressive measure is a type of limitation on an economic, social
or cultural right and accordingly needs to be justified. A limitation on a
right may be permissible provided that it addresses a legitimate objective, is
effective to achieve (that is, rationally connected to) that objective and is a
proportionate means to achieve that objective. A legitimate objective must
address a pressing or substantial concern, and not simply seek an outcome
regarded as desirable or convenient.
1.233
Certain schedules of the bill also engage the right to privacy and the
right to equality and non-discrimination, which are set out below.
Schedules 1-7 – creation of a new jobseeker payment and cessation of other
payment types
1.234
Schedules 1-7 of the bill seek to create a new jobseeker payment which
will be the main working age social security payment and provide that a number
of other social security payments will cease. The bill proposes to cease
Newstart Allowance, Sickness Allowance, Wife Pension, Bereavement Allowance,
Widow Allowance, Widow B Pension and Partner Allowance.[116]
Compatibility of the measures with
the right to social security and the right to an adequate standard of living
1.235
The statement of compatibility acknowledges that the measures engage the
right to social security and refers to jurisprudence of the UN Committee on
Economic Social and Cultural Rights (UNCESR) explaining that:
[the UNCESCR] stated that there is 'a strong presumption that
retrogressive measures taken in relation to the right to social security are
prohibited under the Covenant.' The [UNCESCR] places a burden on the State
party that has introduced deliberately retrogressive measures to 'prove that
they have been introduced after the most careful consideration of all
alternatives and that they are duly justified...'[117]
1.236
At the outset, given the complexity of the measures, it is not clear
whether they are retrogressive. In relation to the creation of the Jobseeker
Payment and the cessation of other payment types, the statement of
compatibility states that over 99.9 percent of social security recipients will
continue to be eligible for income support. These recipients will transition
from the payment types that are ceasing to the Age Pension, the Jobseeker
Payment or Carers Payment with a range of transitional arrangements provided as
safeguards.[118]
It appears that it is intended that most current social security recipients
will be transitioned onto new payment types with the exception of some
recipients residing overseas.[119]
The explanatory memorandum explains that the creation of the Jobseeker Payment
'will have the same basic qualification, payability and rate as existing
Newstart Allowance, however, the payment will be broader in scope than Newstart
Allowance'.[120]
1.237
Given that the qualification requirements and the amount payable to
social security recipients varies between types of payments, the question
arises as to whether certain individuals may be worse off than under current
arrangements. In other words, there is some potential that these measures could
be retrogressive. For example, following the death of a partner, subject to
means and asset testing, the Bereavement Allowance currently pays up to $803.30
per fortnight for a period of 14 weeks. By contrast, current fortnightly
payments for Newstart Allowance for a single person are $535.60. With the
cessation of the Bereavement Allowance, the explanatory memorandum states that
certain new and existing social security recipients will become entitled to an
additional one off payment following the death of their partner instead of
Bereavement Allowance. It is not stated whether the amount payable would be
equivalent to the current amount payable under the Bereavement Allowance or
whether qualification for it will be the same.
Committee comment
1.238
The statement of compatibility acknowledges that the measure
engages the right to social security. However, it is unclear whether the
measures constitute a reduction in the level of attainment of the right to
social security.
1.239
Accordingly, the committee seeks the advice of the minister as
to:
-
whether the cessation of certain social security types could
result in reductions in the amount payable or qualification for any new or
existing social security recipients, or whether such payments will be
equivalent to the types of payments that are ceasing;
-
whether any new or existing social security recipients would
be worse off under the transitional arrangements;
-
what safeguards are provided in relation to the measures (for
example, to ensure that individuals continue to receive social security); and
-
if there are any reductions in the amount of social security
payable (retrogressive measures), whether they pursue a legitimate objective;
are rationally connected to their stated objective; and are a reasonable and
proportionate measure for the achievement of that objective.
Schedule 10 – Start date for Newstart and Youth Allowance payments
1.240
Under current RapidConnect requirements, persons claiming Newstart
Allowance or Youth Allowance, unless otherwise exempt, are required to attend
an interview with an employment services provider before their income support
is payable.[121]
Payment is not made until claimants attend such an interview but is currently
backdated to the date on which the claim was made. In some cases, this may be
the date of first contact with the Department of Human Services.
1.241
Persons claiming Newstart and Youth Allowance, unless exempt, are also
currently required to serve a waiting period of 7 days before payment is made,
usually beginning from the date of claim.[122]
1.242
Schedule 10 of the bill seeks to amend the Social Security
(Administration) Act 1999 so that payments for individuals who are
claiming Newstart Allowance or Youth Allowance, and are subject to
RapidConnect, will be backdated to the day the individual attends their initial
appointment with an employment services provider, instead of the date of claim.[123]
Compatibility of the measure with
the right to social security and right to an adequate standard of living
1.243
The right to social security and the right to an adequate standard of
living are engaged and limited by this measure.
1.244
By proposing to backdate Newstart and Youth Allowance payments to the
date an applicant attends an initial interview with a job services provider, instead
of the earlier date of claim, the measure appears to reduce the initial amount
payable to the applicant. Accordingly, the measure may impact on an
individual's ability to afford the necessities to maintain an adequate standard
of living.
1.245
By bringing forward the start day for payments to some applicants under
Newstart and Youth Allowance, the proposed measure would appear to constitute a
backwards step in the realisation of these rights and, accordingly, this
limitation needs to be justified.
1.246
While acknowledging that the measure engages the right to social
security and the right to an adequate standard of living, the statement of
compatibility sets out that any limitations on these rights are 'necessary and
proportionate' to achieving 'the legitimate policy objective of encouraging
greater workforce participation and self-support for job seekers who have no
significant barriers to employment'.[124]
1.247
While this may be considered a legitimate objective for the purposes of
international human rights law, limited information is provided in the
statement of compatibility as to whether the measure is effective to achieve
the stated objective and is a proportionate means of doing so.
1.248
At present, payment of Newstart and Youth Allowance is not made until
the claimant, unless exempt, attends an interview with a job services provider.
Therefore, an incentive to connect with a job services provider would appear to
already exist. The statement of compatibility does not explain why this existing
measure is inadequate in encouraging Newstart and Youth Allowance claimants to
connect promptly with their job services provider. Without such detail, it is
not clear that the proposed measure is the least rights restrictive way of
achieving the stated objective.
1.249
The statement of compatibility sets out some information which may be
relevant to the proportionality of the measure. This includes that the measure
would not apply to job seekers who are exempt from RapidConnect, including
disadvantaged job seekers, and that the secretary may take account of
individual circumstances when a claimant fails to attend an interview to
determine the start day for payment. In particular, the statement of
compatibility notes that if an appointment with a job services provider is not
available within two business days, payment is backdated to the date on which
the original requirement to attend an interview was made.[125]
1.250
However, it is unclear from the statement of compatibility what time
period exists between the date a claim for payment is made and the date on
which the requirement to attend an interview is imposed. Nor is it stated how the
proposed measure interacts with the 7 day Ordinary Waiting Period for
claimants, and whether back pay or the length of the waiting period is affected
in this context. Accordingly, it is not clear how many days a claimant may have
to wait from the original date of claim to the start day for payment or the
maximum period of time a person may go without back pay. This information is
necessary to determine the extent to which a job seeker's initial payment would
be affected by this measure or the extent of the limitation on the right to
social security and the right to an adequate standard of living.
Committee comment
1.251
The preceding analysis raises questions as to whether the measure
is a proportionate limit on the right to social security and the right to an
adequate standard of living.
1.252
The committee therefore seeks the advice of the minister as to:
-
how the measure is effective to achieve (that is, rationally
connected to) the objective; and
-
how the limitation is a reasonable and proportionate measure
to achieve the stated objective (including why existing measures are
insufficient to achieve the stated objective of the measure, the existence of
relevant safeguards and the period of time a person may be required to go
without payment or back pay).
Schedule 12 – Mandatory drug-testing trial
1.253
Schedule 12 seeks to establish a two year trial of mandatory
drug-testing in three regions, involving 5,000 new recipients of Newstart
Allowance and Youth Allowance. New recipients will be required to acknowledge
in the claim for Newstart Allowance and Youth Allowance that they may be
required to undergo a drug test as a condition of payment, and will then be
randomly subjected to drug testing.
1.254
Recipients who test positive will then be subject to income management
for 24 months and be subject to further random tests. If a recipient tests
positive to a subsequent test, they will be required to repay the cost of these
tests through reduction in their fortnightly social security payment. This may
be varied due to hardship. Recipients who test positive to more than one test
during the 24 month period will be referred to a contracted medical
professional for assessment.[126]
If the medical professional recommends treatment, the recipient will be
required to complete certain treatment activities, such as counselling,
rehabilitation or ongoing drug testing, as part of their employment pathway
plan.[127]
1.255
Recipients who do not comply with their employment pathway plan, including
drug treatment activities, would be subject to a participation payment
compliance framework, which may involve the withholding of payments. Recipients
would not be exempted from this framework if the reason for their
non-compliance is wholly or substantially attributable to drug or alcohol use.[128]
1.256
Recipients who refuse to take the test will have their payment cancelled
on the day they refuse, unless they have a reasonable excuse. If they reapply,
their payment will not be payable for 4 weeks from the date of cancellation,
and they will still be required to undergo random mandatory drug-testing.[129]
Compatibility of the measure with
the right to privacy
1.257
The right to privacy includes the right to protection against arbitrary
or unlawful interference with a person's privacy, family, home or correspondence.
As acknowledged in the statement of compatibility,[130] the
right to privacy extends to protecting a person's bodily integrity against
compulsory procedures such as drug testing. Drug testing is an invasive procedure
and may violate a person's legitimate expectation of privacy. Further, the
measure requires the divulging of private medical information to a firm
contracted to conduct the drug testing. A person may need to provide evidence
of their prescriptions and/or medical history to the company to avoid false
positives that, for example, detect prescribed opioids. Finally, the use of a
card in purchasing essential goods after a person's benefit is quarantined will
disclose that a person receives quarantined social security payments. On these
bases, the measure engages and limits the right to privacy.
1.258
A limitation on the right to privacy may be permissible where it is
pursuant to a legitimate objective, is rationally connected to (that is
effective to achieve) that objective, and is proportionate to achieve that
objective. In assessing whether a measure is proportionate, some of the
relevant factors to consider include whether the measure provides sufficient
flexibility to treat different cases differently or whether it imposes a
blanket policy without regard to the merits of an individual case, whether
affected groups are particularly vulnerable, and whether there are other less
restrictive ways to achieve the same aim.
1.259
The statement of compatibility states that the objective of the drug
testing trial is twofold:
-
[to] maintain the integrity of,
and public confidence in, the social security system by ensuring that tax-payer
funded welfare payments are not being used to purchase drugs or support
substance abuse; [and]
-
[to] provide new pathways for
identifying recipients with drug abuse issues and facilitating their referral
to appropriate treatment where required.[131]
1.260
In support of the need for the measure, the statement of compatibility
referred to statistics indicating that a greater number of people are using
drug and alcohol use as an exemption to mutual obligation requirements.[132]
The statement of compatibility argues that the drug testing measure will help
direct people into treatment before the drug use becomes too severe and a
barrier to employment.[133]
1.261
The statement of compatibility does not provide evidence of a pressing
social need to address the use of welfare payments to purchase drugs or support
substance abuse. However, on the basis of the information and arguments
presented, the measure can be understood as pursuing the objectives of the
early treatment of harmful drug use to prevent drug dependency, and addressing
barriers to employment created by drug dependency. These are likely to
constitute legitimate objectives under international human rights law.
1.262
There are, however, serious concerns as to whether the measure is
effective to achieve, and proportionate to these legitimate objectives.
1.263
First, the measure appears to be overly broad. The randomised drug test
is not reliant on any reasonable suspicion that a person has a drug abuse
problem. Any selected person is then made to disclose medical information to
the private firm contracted to conduct the testing, and subjected to an
invasive medical procedure. If they test positive once, even if it was the
first time they had used an illicit drug[134]
or it was a false positive,[135]
their payments are quarantined for two years, during which period they must use
a cashless welfare card.[136]
This card will immediately disclose that a person is receiving a welfare
payment, whenever they use it. Yet, the single use of the drug is unlikely to
constitute a barrier to employment, nor necessarily lead to dependence.[137]
1.264
Second, it is unclear whether there will be adequate privacy safeguards
as to the medical and drug-related information disclosed to a private provider
of drug tests. The statement of compatibility states:
This trial will be subject to the existing safeguards in the Privacy
Act 1988 and the confidentiality provisions in the Social Security
(Administration) Act 1999 which protect the collection, use and disclosure
of protected information. A joint Privacy Impact Assessment by the Department
of Human Services and the Department of Social Services is being conducted for
this measure and will be submitted to the Office of the Australian Information
Commissioner to ensure implementation of the measure minimises privacy law
risks.[138]
1.265
The existing safeguards in the Privacy Act 1988 and the Social
Security (Administration) Act 1999 (Social Security Administration Act) may
not be sufficient in this context to establish the proportionality of the
limitation. For example, it appears that they may not prevent the Department of
Human Services from disclosing the fact of a person's positive drug test to law
enforcement, state welfare agencies or the Department of Immigration and Border
Protection. The risk of prosecution, visa cancellation or loss of child
custody, may prevent people from attempting to access Newstart or Youth
Allowance payments, causing destitution. Further, it appears that they may not
prevent the Department of Human Services or a private contractor from
disclosing information regarding a particular welfare recipient to the public to
correct that person's criticism of the trial.[139]
1.266
A question also arises as to how long drug test samples will be
retained. The taking and retention of bodily samples for testing purposes can
contain significant personal information. International jurisprudence has noted
that genetic information contains 'much sensitive information about an
individual' and given the nature and amount of personal information contained
in cellular samples 'their retention per se must be regarded as interfering
with the right to respect for the private lives of the individuals concerned'.[140]
1.267
Rules made by the minister pursuant to proposed section 38FA[141]
of the Social Security Administration Act as well as the preparation of a
Privacy Impact Assessment, may result in further safeguards which would address
concerns regarding retention and disclosure of drug test samples. However, no
detail has been provided as to the intended content of the rules.
1.268
Third, the trial may limit the privacy rights of a large group of
people, in order to identify a very small number of people who had used illicit
drugs or have a drug abuse problem. For example, in relation to drug testing in
the United States jurisdiction of Florida, only 2.6% of welfare recipients
tested were found to have used drugs, most commonly marijuana. This trial may
target areas with a higher percentage of drug users which may identify a higher
number of people.[142]
However, it still raises the concern that the measure is disproportionate.
1.269
Fourth, there appear to be a variety of less rights restrictive methods
to achieve the objective of providing new pathways for referral to treatment of
those who have or are likely to develop substance abuse issues, not least
increasing the availability and promotion of treatment options for those with
drug and alcohol dependency. This was not addressed in the statement of
compatibility.
Committee comment
1.270
The right to privacy is engaged and limited by this measure. The
preceding analysis raises questions as to whether the measure is a permissible
limitation on that right.
1.271
The committee therefore seeks further advice from the minister as
to how the measure is effective to achieve and proportionate to its
objectives, including:
-
whether overseas experience indicates that this trial will be
effective to achieve its objectives;
-
whether there will be a process to apply to remove income
quarantining measures if no longer necessary or if special circumstances exist;
-
whether there will be additional safeguards in place in relation
to the disclosure of drug test results, particularly to law enforcement,
immigration authorities, other agencies and the public and the nature of those
safeguards; and
-
the availability of less rights restrictive measures to achieve
the objectives of the trial.
Compatibility of the measure with
the right to social security and the right to an adequate standard of living
1.272
The measure engages the right to social security and an adequate
standard of living in three ways. First, the measure may result in a reduction
in payments to cover the costs of positive drug tests, or to penalise a person
for failing to fulfil their mutual obligation requirements. Second, the risk of
the result of the test being disclosed to law enforcement, immigration or other
welfare authorities may cause people to avoid applying for necessary welfare
payments, causing destitution. Third, the measure may impermissibly
discriminate against those with substance addictions which rise to the level of
disability, as further discussed below under the right to equality and
non-discrimination.
1.273
A limitation on the right to social security and an adequate standard of
living may be permissible where it is pursuant to a legitimate objective,
effective to achieve that objective, and proportionate to that objective. As
discussed above, the objectives of early treatment of harmful drug use to
prevent drug dependency and addressing barriers to employment created by drug
dependency are likely to be legitimate objectives for the purposes of human
rights law. However, there are serious concerns regarding whether the measure
is effective to achieve and proportionate to those objectives.
1.274
The statement of compatibility states:
Income management does not reduce the total amount of income
support available to a person, just the way in which they receive it... Job
seekers placed on Income Management under this trial will still be able to
purchase items at approved merchants and pay rent and bills with their
quarantined funds... Evidence collected on Income Management in Western Australia
indicates that the program is improving the lives of many Australians. It has
given many participants a greater sense of control of money, improved housing
stability and purchase restraint for socially harmful products while reducing a
range of negative behaviours in their communities including drinking and
violence.[143]
1.275
While income management does not reduce the amount of income support
available, the committee has previously examined income management measures and
considered them to raise concerns, particularly where income management was not
voluntary or inflexibly applied. The committee found that whilst compulsory
income management did reduce spending of income managed funds on proscribed
items, it could increase welfare dependence, and interfere with a person's
private and family life.'[144]
In particular, the committee highlighted that '[t]he compulsory income
management provisions operate inflexibly raising the risk that people who do
not need assistance managing their budget will be caught up in the regime.'[145]
Similarly, in this instance, the imposition of income management for two years
may be disproportionate to the objectives pursued, particularly where
inflexibly imposed on a person who may have used an illicit drug but does not
have ongoing drug abuse issues.
1.276
Further, it appears that once the drug test is positive, the contractor
may issue a notice to the Secretary that the person should be subject to income
management, even where the person requests a second drug test. The mechanics of
requesting a second drug test or providing evidence of legal medication are
unclear. It appears possible that a person may be subject to income management
for a period even where the result is challenged and a retest scheduled.
1.277
The measure will require those who test positive to drugs to repay the
cost of the drug test over time, via deductions from their payments. Given the
basic rate of Newstart and Youth Allowance,[146]
there is a significant risk that repaying the cost of tests, even capped at a
10% reduction in the payment, will compromise a person's ability to afford
necessities to live and successfully look for work. The explanatory memorandum
refers to the existence of safeguards against hardship, specifically the power
of the secretary to vary the rate of repayment where the person's circumstances
are 'exceptional', and the person would suffer 'severe financial hardship'.[147]
The existence of a safeguard is welcomed, however the proposed test sets a very
high threshold for the exercise of this power. On its face, it appears the test
may be difficult to meet even when experiencing hardship. For example, it is
questionable whether it would be satisfied where many people are experiencing
similar circumstances of severe hardship, and therefore their individual
circumstances are not considered to be 'exceptional'.
1.278
The reduction in payments to penalise a person for failing to undertake
treatment activities as part of their employment pathway plan, may also
severely compromise a person's ability to afford basic necessities. The
statement of compatibility reasons that Australia's welfare system is founded
on principles of mutual obligation, and that 'it is reasonable to expect the
job seeker to pursue treatment as part of their Job Plan and be subject to
proportionate consequences if they fail to do so.'[148]
However, there are questions regarding whether withholding subsistence payments
for failure to attend treatment takes into account evidence that addiction
often involves cycles of relapse before recovery.[149]
In this respect, the statement of compatibility argues that there are
provisions in place to address individual vulnerabilities:
the vulnerability of people and the impact of their
circumstances on their ability to comply with their mutual obligation
requirements is considered under social security law through reasonable excuse
and exemption provisions, and delegates have significant discretionary powers
regarding the application of compliance actions to consider the circumstances
of each individual case.[150]
1.279
Other measures in the bill, as discussed below, seek to ensure that drug
addiction is not considered as a reasonable excuse or exemption. Given
the basic rate of Youth Allowance and Newstart, the requirements to use up most
of one's savings before becoming eligible for Newstart, and these reasonable
excuse and exemption measures, it is unclear how a delegate's discretion will prevent
those addicted to drugs from being unable to afford basic needs.
1.280
As stated above, should the regulations not adequately circumscribe the
disclosure of drug test results, including by private contractors, this measure
may also result in people in need of social security avoiding accessing
payments due to the fear of consequences such as prosecution, deportation or
loss of child custody. The risk that the measure may prevent people from
attempting to access Newstart or Youth Allowance payments, despite need, also
affects the proportionality of the measure.
1.281
Finally, as discussed above in relation to the right to privacy, the
statement of compatibility does not address the availability of less rights
restrictive measures to achieve the objectives of the measure. This is
particularly important in the context of the right to social security given the
strong presumption that retrogressive measures are prohibited under the
International Covenant on Economic Social and Cultural Rights (ICESCR) and that
the state has the burden of proving that they were introduced after the most
careful consideration of all alternatives.[151]
Committee comment
1.282
The right to social security and an adequate standard of living
is engaged and limited by this measure. The preceding analysis raises questions
as to whether the measure is compatible with these rights.
1.283
The committee seeks further advice from the minister as to the
effectiveness and proportionality of the measure including:
-
whether recipients will be informed that they may request a
retest or provide evidence of legal medications, and how these processes will
occur;
-
whether there is a mechanism to challenge or review the
imposition of income management;
-
whether a person can successfully have their rate of repayment
reduced where they would experience severe hardship, but their circumstances
are similar to others;
-
further detail as to how the discretion of delegates will operate
to consider the vulnerability of those with drug dependencies and ensure that
their payments are not reduced such that they are unable to afford basic needs;
-
whether there will be limits placed on the disclosure of drug
test results to law enforcement, immigration authorities or other agencies; and
-
whether there are less rights restrictive methods to achieve the
objectives of the measure.
Compatibility of the measure with
the right to equality and non-discrimination
1.284
The right to equality and non-discrimination is protected by articles 2,
16 and 26 of the International Covenant on Civil and Political Rights (ICCPR)
and article 2 of the ICESCR. It is further protected with respect to persons
with disabilities by Article 2 of the Convention on the Rights of Persons with
Disabilities (CRPD). The right applies to the distribution of welfare benefits
or social security.[152]
1.285
Article 26 of the ICCPR provides that all persons are equal before the
law and entitled to equal protection of the law without any discrimination. It
effectively prohibits the law from discriminating on any ground such as race,
sex, religion, political opinion, national origin, or "other
status."
1.286
Where the person's drug use rises to that of dependence or addiction,
the person has a disability, which is not only considered an "other
status"[153]
but is also protected from discrimination by the CRPD.[154]
As acknowledged by the statement of compatibility, there may also be a
disproportionate impact against Indigenous people, due to higher levels of drug
and alcohol use.[155]
Further the drug-testing will not be entirely random, but based on the
development of a risk profile, which identifies risk factors to drug misuse.
1.287
The possible interference of prescription medications may also disadvantage
those with communication difficulties who fail to disclose their prescriptions
and therefore are tested as positive for illicit drugs.
1.288
To the extent that this measure affects those with drug and alcohol
dependencies and Indigenous people it engages the right to non-discrimination.
Under international human rights law, differential treatment[156] will not constitute
unlawful discrimination if the differential treatment is based on reasonable
and objective criteria such that it serves a legitimate objective, is effective
to achieve that legitimate objective and is a proportionate means of achieving
that objective.
1.289
The statement of compatibility argues that the objective of the measure
is to ensure that tax-payer funded welfare payments are not being used to support
substance abuse and provide new pathways for identifying recipients and
facilitating their referral to treatment where required.
1.290
As stated above, the early treatment of harmful drug use to prevent drug
dependency, and addressing barriers to employment created by drug dependency
are likely to be legitimate objectives for the purposes of human rights law.
However, as discussed above, it is not clear that the measure is effective to
achieve and proportionate to the stated objectives, and there would appear to
be less rights restrictive methods to achieving these objectives.
Committee comment
1.291
The right to equality and non-discrimination is engaged by this
measure. The preceding analysis raises questions as to the compatibility of the
measure with this right.
1.292
The committee seeks further advice from the minister as to
whether the measure is proportionate to its objective, in particular whether
there are less rights restrictive alternatives to the measure to achieve the
objective.
Schedules 13-14 – Removal of exemptions for drug or alcohol dependence; and
changes to reasonable excuses
1.293
Under current social security law, a person may be exempted from
participation or activity test requirements (mutual obligation requirements) in
relation to the receipt of certain social security payments such as Newstart
Allowance, Youth Allowance, parenting payments and special benefits. If they
are not exempted from the requirements, and commit a 'participation failure'
(such as failing to attend a participation interview or undertake a compulsory
work activity) they will have their payments suspended, cancelled or reduced.
However, where a person fails to meet a mutual obligation requirement or
commits a participation failure, they will not be subject to a suspension or a non-payment
penalty where that person has a 'reasonable excuse'.
1.294
Schedule 13 of the bill seeks to ensure that exemptions from mutual
obligation requirements are not available where the reason for the exemption is
wholly or predominantly attributable to drug or alcohol dependency or misuse.
1.295
Schedule 14 of the bill provides the secretary with a power to make a
legislative instrument setting out the matters that must not be taken into
account when deciding whether a person has a 'reasonable excuse' for committing
a participation failure.
Compatibility of the measures with
the right to equality and non-discrimination
1.296
As noted above, the right to equality and non-discrimination provides
that all persons are equal before the law and entitled to equal protection of
the law without any discrimination. It effectively prohibits the law from
discriminating on grounds such as race, sex, religion, political opinion,
national origin, or "other status".[157]
1.297
Alcohol and drug dependence is considered to be a disability, and therefore
considered "other status"[158]
as well as protected from discrimination by the CRPD.[159]
1.298
As stated in the statement of compatibility, the measure:
engages the rights to equality and non-discrimination because
people who may have a disability or illnesses associated with drug or alcohol
dependency (such as alcoholism) will be subject to differential treatment
insofar as they will not be eligible for the exemption that people with another
illness or disability could potentially access.[160]
1.299
The statement of compatibility also acknowledges potential
discrimination against Aboriginal and Torres Strait Islander people who
experience higher rates of drug and alcohol dependencies.
1.300
The statement of compatibility however states that in both instances,
the differential treatment is permissible because the measure is 'reasonable
and proportionate to the objective of encouraging these recipients to address
the underlying cause of their incapacity'.[161]
While this may be a legitimate objective for the purposes of human rights law,
it is questionable whether the measures are effective to achieve (that is,
rationally connected to) and proportionate to that objective.
1.301
The proposed preclusion on obtaining an exemption is quite broad,
affecting both the rational connection and proportionality of the measure to
the objective of 'encouraging these recipients to address the underlying cause
of their incapacity'.[162]
The measure refers to circumstances, illness or accident 'predominantly
attributable to a person's misuse of alcohol or another drug' and therefore
appears to cover not only ongoing drug and alcohol misuse but diseases that may
result from past misuse such as Alcoholic Liver Disease or brain damage. In
these circumstances, a person may have already done all they can to address
'the underlying cause of their incapacity'. It may also cover injuries
resulting from accidents when intoxicated, where again, the cause cannot be
addressed as the misuse occurred in the past. In addition, it appears to cover
circumstances where a person has undergone treatment unsuccessfully several
times, and may no longer have the mental capacity to be assessed as a suitable
candidate for treatment.
1.302
The explanatory memorandum states that an exemption would not cover 'a
special circumstances exemption due to a major personal crisis because they
have been evicted from their home due to drug or alcohol misuse'.[163]
The measure therefore appears intended to have the effect that if a person
fails to attend a participation interview or undertake a compulsory work
activity because that person has, for instance, been rendered homeless, that
person's social security payments will be suspended, cancelled or reduced, if
this homelessness is predominantly attributable to drug or alcohol dependency.
1.303
It is difficult to see how making a person subject to mutual obligation
requirements when they are in crisis due to eviction, caused by alcohol or drug
misuse, which depending on severity may be a disability, will encourage that
person to address the 'underlying cause of their incapacity'. The withdrawal of
social security in circumstances of personal crisis may indeed exacerbate
substance abuse problems, rather than encourage treatment.
1.304
Whilst the explanatory memorandum and statement of compatibility reason
that the measure will allow treatment to be sought as part of mutual obligation
requirements, it appears to rely on the exercise of discretion by the
Department of Human Services. The legal basis for requiring treatment as part
of an employment pathway plan is not apparent, and this is not addressed by the
statement of compatibility.[164]
1.305
In order for a measure to be a proportionate limitation on the right to
equality and non-discrimination, it must be shown that there were no less
rights restrictive methods available to achieve the objective. In this
instance, it is unclear, for example, why encouraging treatment and investing
in additional treatment and referral services, as would be the case with other
disabilities, is insufficient to encourage recipients to address the underlying
cause of their incapacity.
1.306
A potentially important safeguard within the Social Security
Administration Act is the mechanism by which a person will not be subject to a
suspension or non-payment penalty for non-compliance with mutual obligation
requirements where that person has a 'reasonable excuse'. As noted above,
schedule 14 provides the secretary with a power to make a legislative
instrument setting out what constitutes a reasonable excuse. The statement of
compatibility states that this power is intended to be exercised so as to
ensure that income support recipients will not be able to repeatedly use drug
or alcohol abuse or dependency as a reasonable excuse for participation
failures.[165]
This raises a concern that what constitutes a 'reasonable excuse' may not cover
the particular circumstances of those suffering from addiction. However, the
statement of compatibility further explains that it is intended that they will
still be able to use drug or alcohol abuse or dependency in the first instance,
and be offered treatment as part of their employment pathway plan.[166]
1.307
The explanatory materials provide some further information about the
likely content of such a legislative instrument made under schedule 14 and
state that the penalty would not be imposed where treatment was not
appropriate, or available:
It is intended that existing reasonable excuse provisions
will continue to apply following the initial relevant participation failure due
to drug or alcohol misuse or dependency where treatment is unavailable/inappropriate,
including where the job seeker:
-
is ineligible or unable to
participate;
-
has already participated in all
available treatment;
-
has agreed but not yet commenced
in treatment; or
-
has relapsed since completing
treatment and is seeking further treatment.[167]
1.308
The content of these safeguards is important in assessing the human
rights compatibility of the measure. However, without reviewing the legislative
instrument, which will set out what constitutes a reasonable excuse, it is
difficult to determine the extent of any limitation on the right to equality
and non-discrimination and whether there will be sufficient safeguards to
ensure that the limitation on this right is proportionate.
Committee comment
1.309
The preceding analysis indicates that Schedules 13 and 14 engage
the right to equality and non-discrimination.
1.310
The committee seeks further information from the minister as to
whether the measures are reasonable and proportionate for the achievement of
their objective and in particular:
-
whether less rights restrictive measures would be workable; and
-
whether adequate safeguards are available to protect the rights
of people with disabilities relating to alcohol or drugs.
1.311
Noting that the details of what is to constitute a 'reasonable
excuse' is to be provided by legislative instrument, the committee seeks the further
information from the minister regarding the safeguards to be included in this
instrument.
Compatibility of the measures with
the right to social security and an adequate standard of living
1.312
Removing drug and alcohol dependence as an exemption to mutual
obligation requirements means that more people will be required to comply with
such requirements. As a failure to meet these requirements without a reasonable
excuse will result in the reduction or suspension of social security payments,
the measure engages and may limit the right to social security and the right to
an adequate standard of living. Further, the changes to what constitutes a
'reasonable excuse' in these circumstances also engages and may limit these
rights to the extent that drug and alcohol abuse and dependency no longer
constitute a reasonable excuse for failing to meet a mutual obligation
requirement.[168]
1.313
As discussed above, whilst encouraging recipients to address their
underlying barriers to work is a legitimate objective under international law,
there are questions as to whether the measures are effective to achieve and
proportionate to that objective.
1.314
In the context of the right to social security and an adequate standard
of living, these provisions may be particularly disproportionate as they
restrict the discretion of compliance officers to take into account the
particular hardship suffered by a person, where alcohol and drugs are involved,
and therefore may operate to deny a person basic necessities. As stated above,
many welfare payments are already paid at a basic rate, and require a person to
have used the majority of their savings in order to be eligible. Therefore,
there may not be a financial buffer for personal crises or illnesses that cause
difficulties in meeting mutual obligation requirements. It is particularly
concerning that a person may be subject to suspension or cancellation of social
security payments in circumstances where they have been evicted from their
housing due to alcohol or drug use. Under the intended rules of Schedule 14, it
does not appear that they will then be able to access reasonable excuse provisions
more than once. This kind of inflexibility may cause significant deprivation
and fail to support people in addressing their substance misuse issues.
Committee comment
1.315
The preceding analysis indicates that Schedules 13 and 14 engage
and limit the right to social security and an adequate standard of living.
1.316
The committee seeks further information from the minister as to
whether the measures are reasonable and proportionate for the achievement of
their objective and in particular:
-
whether less rights restrictive measures would be workable; and
-
whether adequate safeguards are available to protect people from
suffering deprivation.
Compatibility with the right to
protection of the family and the rights of the child
1.317
The rights of the family and child to protection and assistance are
protected by Article 10 of ICESCR, as well as various provisions of the
Convention on the Rights of the Child.
1.318
The statement of compatibility acknowledges that the right is engaged
but argues that any penalties would only apply to income support payments made
to the parent in respect of themselves. It states that '[a]ny payments made to
the parents for the maintenance of their children, such as Family Tax Benefit,
or to meet childcare costs would not be affected by the penalty'.[169]
The statement of compatibility further notes that some principal carer parents
on working age payments are only required to meet part time mutual obligation
requirements, even if denied an exemption to the requirements due to alcohol or
drug misuse. Finally, it states that these measures will encourage parents to
address barriers to employment and move into work.[170]
However, it is unclear how it is envisaged this will operate. If a parent is
having difficulty paying rent or purchasing food due to the imposition of a
financial penalty, this would naturally affect the standard of living of the
children under their care. This raises questions about the proportionality of
the measure to the protection of the family and the rights of the child.
Committee comment
1.319
The preceding analysis indicates that Schedules 13 and 14 engage
and limit the right to protection of family and the rights of the child.
1.320
The committee seeks further information from the minister as to
whether the measures are reasonable and proportionate for the achievement of
their objective and in particular:
-
whether less rights restrictive measures would be workable; and
-
whether there are adequate safeguards to protect the rights of
children.
Schedule 15 – compliance framework
1.321
Currently, job seekers who receive an activity-tested income support
social security participation payment (that is, Newstart Allowance and, in some
cases, Youth Allowance, Parenting Payment or special benefit) are subject to
the compliance framework set out in Division 3A of the Social Security
Administration Act and must comply with mutual obligation requirements.[171]
1.322
Schedule 15 of the bill proposes to introduce a new compliance
framework, including:
-
Payment suspension for non-compliance with a mutual obligation
requirement;
-
Financial penalties for refusing work; and
-
Financial penalties for persistent non-compliance.
1.323
The committee has previously examined several bills which contained
measures similar to those proposed in this schedule.[172]
Measures raising human rights concerns are discussed below.
Payment suspension for mutual obligation failures
1.324
Job seekers will have their income support payment suspended for every
failure to meet a mutual obligation requirement without a reasonable excuse.[173]
The suspension period ends when the person complies with the reconnection
requirement (such as reconnecting with an employment provider) unless the
secretary determines an earlier day. If the job seeker fails to reconnect with
employment services within four weeks, their social security participation
payment will be cancelled.[174]
The measure is similar to those currently contained in division 3A of the
Social Security Administration Act.
Compatibility of the measure with
the right to social security and right to an adequate standard of living
1.325
As the measure operates to suspend social security payments, it engages
and may limit the right to social security and the right to an adequate
standard of living. As set out above, such limitations are permissible provided
certain criteria are met.
1.326
The statement of compatibility identifies the legitimate objective of
the measure as 'encouraging persons to remain engaged with employment services
and actively seek and accept suitable work'.[175]
This is likely to be a legitimate objective for the purposes of international
human rights law.
1.327
It is noted that the existence of safeguards is relevant to the
proportionality of the measure. The statement of compatibility outlines some of
the relevant safeguards including that the suspension does not apply if the
person has a 'reasonable excuse'. What constitutes a reasonable excuse is to be
outlined in a legislative instrument. The statement of compatibility notes that
a 'reasonable excuse' may include, for example, 'whether the person or a close
family member has suffered an illness or was prevented from complying by circumstances
beyond their control'.[176]
However, other aspects of this bill, as outlined above, seek to limit what
constitutes a reasonable excuse. Without reviewing the legislative instrument,
which will include further information on what constitutes a reasonable excuse,
it is difficult to determine whether or not this mechanism will operate as an
effective safeguard.
1.328
The statement of compatibility outlines some other safeguards including
that:
-
Job seekers will continue to be eligible for concession card
benefits while suspended (but not cancelled);
-
cancelations and suspensions are subject to review both
internally and externally;
-
if a job seeker's payment is cancelled as a result of failing to
reengage within four weeks, they are able to reclaim benefits immediately; and
-
the payment suspension can be ended by fulfilling the
reconnection requirement (such as attending an interview with their employment
service provider) and be fully back paid.[177]
Committee comment
1.329
The statement of compatibility acknowledges that the measure
engages the right to social security and the right to an adequate standard of
living.
1.330
The committee requests the advice of the minister as to whether
the measure is reasonable and proportionate for the achievement of its
legitimate objective, in particular, what criteria will apply to whether a
person is considered to have a 'reasonable excuse' for failing to comply with a
mutual obligation requirement.
Financial penalties for refusing work
1.331
Job seekers who fail to accept an offer of suitable work will have their
social security payment suspended. They will also be subject to payment
cancellation and a 4 week non-payment period if they are found to have refused
or failed to commence the work without a reasonable excuse.[178]
1.332
Job seekers who leave suitable work voluntarily without a valid reason
or are dismissed from suitable work due to misconduct will (in addition to
having their payment cancelled if they are receiving payment) be subject to a 4
week non-payment period (or 6 weeks where the person received relocation
assistance to move to take up the work).[179]
1.333
Currently, under section 42N of the Social Security Administration Act a
person would be subject to a non-payment period of 8 weeks. However, the
secretary has the discretion to end this period if it would cause 'severe
financial hardship'.[180]
1.334
The bill would remove the ability for the non-payment penalty to be
waived on the basis of financial hardship.
Compatibility of the measure with
the right to social security and right to an adequate standard of living
1.335
As the measure operates to suspend social security payments, it engages
and may limit the right to social security and the right to an adequate
standard of living. The statement of compatibility identifies the objective of
the measure as having:
demonstrably employable job seekers remain committed to
obtaining work as soon as they can rather than continuing to remain in receipt
of income support at tax-payers' expense.[181]
1.336
In relation to the proportionality of the measure, the statement of
compatibility outlines some safeguards and that this measure would reduce the
non-payment penalty from eight-weeks to four-weeks.[182] This reduction on its own
would make the current arrangements less rights restrictive.
1.337
However, concerns remain as to whether, during this four-week period,
there would be sufficient support for a person to meet basic necessities. In
particular, the measure would remove the ability for the non-payment penalty to
be waived on the basis of financial hardship. In this regard, the explanatory
memorandum explains:
There will be no waivers for non-payment or preclusion
periods under the new compliance framework. The current widespread availability
of waivers, where over 88 per cent of penalties for serious failures are
waived, has undermined the effectiveness of these penalties to the extent that
they no longer provide a deterrent to job seekers who persistently fail to meet
their requirements.[183]
1.338
The committee has previously examined the removal of the waiver and
raised concerns regarding the compatibility of the measure with the right to
social security and the right to an adequate standard of living.[184]
It is unclear from the materials provided in the statement of compatibility
that these concerns have been addressed.
1.339
While the statement of compatibility provides information as to the
percentage of cases in which a waiver has been applied, the assessment does not
establish that the removal or limitation of the waiver will, of itself, provide
a deterrent against non-compliance with job seekers' obligations.[185] In
particular, the figures provided on the proportion of waivers granted are not
accompanied by any basis to conclude that these were inappropriate, excessive
or misused. It is therefore unclear how limiting the availability of a waiver
on the ground of a job seeker's severe financial hardship, would achieve the stated
objective of the measures. Even if so, it appears possible to address potential
excessive reliance on the waiver without removing the waiver altogether.
Committee comment
1.340
The statement of compatibility acknowledges that the measure
engages the right to social security and the right to an adequate standard of
living.
1.341 The
preceding analysis indicates that the measure may limit these rights and there
are some questions about whether the safeguards are sufficient to ensure that
the limitation is proportionate.
1.342 The
committee therefore requests the advice of the minister as to whether the
measure is reasonable and proportionate for the achievement of its stated
objective, and in particular:
-
whether the waiver was being misused or was ineffective;
-
whether there are less rights restrictive options that are
reasonably available, for instance, whether a waiver could be provided where
circumstances justify the waiver in accordance with a more structured framework
that allows for consistent and appropriate application of the waiver; and
-
whether there are any safeguards in relation to the
application of the measure (such as crises or when a person is unable to meet
basic necessities).
Repeated non-compliance penalties
1.343
Schedule 15 proposes that recipients of the participation payments who have
repeatedly failed to comply with their mutual obligation requirements will be
subject to escalating reductions in their income support social security
payments for further non-compliance with requirements.[186]
1.344
For the first failure of persistent non-compliance, the rate of
participation payment for the instalment period in which the failure is
committed or determined will be halved.[187]
For a second failure, the job seeker will lose their entire participation
payment and any add-on payments or supplements for that instalment period.[188] For a
third failure, the job seeker's payment will be cancelled from the start of the
instalment period and a 4 week non-payment period, starting from the date of
cancellation, will apply if the job seeker reapplies for payment. There
will be no waivers for non-payment periods.[189]
1.345
Proposed section 42AR(1) obliges the minister to make a legislative
instrument determining the circumstances in which the secretary must, or must
not, be satisfied that a person has committed a persistent obligation failure.
Compatibility of the measure with
the right to social security and right to an adequate standard of living
1.346
As the measure operates to suspend or cancel social security payments,
it engages and may limit the right to social security and the right to an
adequate standard of living. As noted above, the objective of 'encouraging
persons to remain engaged with employment services and actively seek and accept
suitable work' is likely to be considered a legitimate objective for the
purposes of international human rights law.[190]
1.347
In relation to the proportionality of the measure, the explanatory
memorandum explains:
In practice, administrative
arrangements will ensure that job seekers will need to have committed multiple
failures without a reasonable excuse before they can be determined to be
persistently non-compliant, and their provider and the Department of Human
Services (DHS) will conduct checks to ensure the job seeker does not have any
undisclosed issues that are affecting their ability to comply, and that their
employment pathway plan is suitable for their circumstances. The factors that the Secretary must
consider as constituting persistent non-compliance will be included in a
legislative instrument.[191]
1.348
However, in order for a measure to be a proportionate limitation on
human rights, it must be accompanied by sufficient safeguards in legislation.
Accordingly, the criteria to be included in the legislative instrument that the
Secretary must consider as constituting persistent non-compliance is relevant
to the proportionality of the measure.
1.349
Additionally, the measure would remove the ability for the four-week
non-payment penalty to be waived. The committee has previously examined the
removal of the waiver and raised concerns regarding the compatibility of the
measure with the right to social security and the right to an adequate standard
of living.[192]
As noted above, it is unclear how limiting the availability of a waiver on the
ground of a job seeker's severe financial hardship would achieve the stated
objective of the measure. It is also unclear, during the four-week non-payment
period, whether there would be sufficient support for a person to meet basic
necessities or other safeguards.
Committee comment
1.350 The
statement of compatibility acknowledges that the measure engages the right to
social security and the right to an adequate standard of living.
1.351 The
preceding analysis indicates that the measure may limit these rights and there
are some questions about whether the safeguards are sufficient to ensure that
the limitation is proportionate.
1.352 The
committee therefore requests the advice of the minister as to whether the
measure is reasonable and proportionate for the achievement of its stated
objective, in particular:
-
whether the waiver was being misused or was ineffective;
-
whether there are less rights restrictive options that are
reasonably available;
-
whether there are any safeguards in relation to the
application of the measure (such as, crises or when a person is unable to meet
basic necessities);
-
whether a waiver could be provided where circumstances justify
the waiver in accordance with a more structured framework that allows for
consistent and appropriate application of the waiver; and
-
what criteria will be set out in the legislative instrument as
matters the Secretary must or must not consider as constituting persistent
non-compliance.
Schedule 17 – Information gathering powers and referrals for prosecution
1.353
Currently, the secretary may require a person to give information or
produce a document that is in a person's custody or control in order to assess
a person's qualification, payability or rate of payment.[193]
1.354
Schedule 17 of the bill would allow information and documents obtained
in the course of such administrative action by the Department of Human Services
to be used in subsequent investigations and criminal proceedings.[194]
1.355
It also proposes to provide that a person is not excused from giving
information or producing a document on the ground that the information might
tend to incriminate the person.[195]
Compatibility of the measure with
the right to privacy
1.356
The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information and the
right to control the dissemination of information about one's private life. As
the measure would allow for the compulsory collection and sharing of
information about an individual it engages and limits the right to privacy. It
does so in circumstances where the person providing the information or document
will not be afforded the privilege against self-incrimination.
1.357
The right to privacy may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be arbitrary,
the measure must pursue a legitimate objective, and be rationally connected and
proportionate to achieving that objective. The statement of compatibility
acknowledges that this measure engages the right to privacy but argues that
this limitation is permissible.[196]
1.358
The statement of compatibility explains that currently information and
documents obtained under section 192 of the Social Security (Administration)
Act 1999 are inadmissible in criminal proceedings. It notes that the
current process is to obtain such information by search warrant:
Because of this, admissible evidence is obtained by using
search warrants pursuant to section 3E of the Crimes Act 1914 (Cth). The
Department of Human Services requests around 1,000 of these warrants annually.
Each warrant requires two to three business days of a seconded Australian
Federal Police agent's effort. This process places a significant burden on the
Department of Human Services, the Australian Federal Police, warrant recipients
and the courts, particularly when this information has already been collected
under section 192 of the SS(Admin) Act for administrative purposes.[197]
1.359
The statement of compatibility identifies the objective of the measure
as 'to streamline the process of gathering evidence for welfare fraud
prosecution'.[198]
Matters of administrative ease or streamlining processes on their own are
unlikely to be considered a legitimate objective for the purpose of
international human rights law. Rather, a legitimate objective must address a
pressing or substantial concern and not simply seek an outcome regarded as
desirable or convenient.
1.360
Further, the statement of compatibility does not demonstrate that the
measure imposes a proportionate limitation on the right to privacy. In
particular, the statement of compatibility does not address whether there are
adequate safeguards in place with respect to the exercise of this information
gathering and sharing power. It is noted that a warrant system by its nature
provides external safeguards that would not be present in the new system. In
order to be a proportionate limitation on the right to privacy a measure must
be the least rights restrictive way of achieving its legitimate objective.
Committee comment
1.361
The preceding analysis indicates that there are questions as to
whether the measure is a permissible limitation on the right to privacy.
1.362
The committee therefore seeks the advice of the minister as to:
-
whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
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.
Compatibility of the measure with
the right not to incriminate oneself
1.363
Specific guarantees of the right to a fair trial in the determination of
a criminal charge guaranteed by article 14 of the ICCPR include the right not
to incriminate oneself (article 14(3)(g)).
1.364
Requiring a person to provide information or produce a document even if
this information may incriminate them engages and limits the right not to
incriminate oneself. This right may be subject to permissible limitations where
the measure pursues a legitimate objective and is rationally connected to, and
proportionate to achieving, that objective.
1.365
The statement of compatibility acknowledges this right is engaged.
However, as noted above, it is unclear from the statement of compatibility
whether the abrogation of the privilege against self-incrimination pursues a
legitimate objective for the purpose of international human rights law.
1.366
The statement of compatibility identifies some matters which may go
towards whether the measure is proportionate.[199]
In particular, the statement of compatibility outlines that a 'use' and
'derivative use' would be available in relation to information provided.[200]
Such immunities are important safeguards. However, in this case it is noted
that the immunities are subject to a range of exceptions. In light of these
exceptions, it is unclear whether the measure is sufficiently circumscribed so
as to ensure the limitation is proportionate.
Committee comment
1.367
The preceding analysis indicates that there are questions as to
whether the measure is a permissible limitation on the right not to incriminate
oneself.
1.368
The committee therefore seeks the advice of the minister as to:
-
whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
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 (including whether the exceptions to
the 'use/derivative use' immunities are sufficiently circumscribed).
Schedule 18 – Exempting social security laws from disability discrimination
law
1.369
The Social Security Act 1991 is currently exempt from the Disability
Discrimination Act 1992. After this exemption was established, certain
provisions from the Social Security Act 1991 were transferred to two new
acts – the Social Security (Administration) Act 1999 and the Social
Security (International Agreements) Act 1999. The exemption from the Disability
Discrimination Act 1992 was not extended to these two new acts. The bill
seeks to include the Social Security (Administration) Act 1999 and the Social
Security (International Agreements) Act 1999 in the list of legislation
exempt from the operation of the Disability Discrimination Act, as well as
legislative instruments made under the Social Security Act 1991 and the Social
Security (Administration) Act 1999.
Compatibility of the measure with
the right to equality and non-discrimination
1.370
The right to equality and non-discrimination is protected by articles 2,
16 and 26 of the ICCPR and article 2 of the ICESCR. It is further protected
with respect to persons with disabilities by Article 2 of the CRPD. The right
applies to the distribution of welfare benefits or social security.[201]
1.371
'Discrimination' under international law encompasses differential
treatment on the basis of a protected attribute, such as disability, as well as
treatment having a disproportionate impact on people with a protected
attribute.[202]
However, differential treatment based on a protected attribute may be
permissible where it is a 'special measure', or in the words of the CRPD, a
specific measure 'necessary to accelerate or achieve the de facto equality of
persons with disabilities'.[203]
1.372
As the proposed schedule extends the exemption from the Disability
Discrimination Act 1992 to two additional acts and legislative instruments,
the measure engages and limits the right to equality and non-discrimination.
1.373
In relation to the purpose of the measure, the statement of
compatibility states that:
This exemption from the Disability Discrimination Act is
designed to ensure that social security pensions, allowances and benefits,
including for people with disability, can be appropriately targeted according
to the purposes of the payments....
Payments under social security law are made to eligible people on the
basis of a variety of factors such as their health, disability, age, income and
asset levels. This ensures that Australia’s social security system is targeted
based on people’s circumstances and need and constitutes legitimate
differential treatment.[204]
1.374
It should be noted that section 45 of the Disability Discrimination
Act 1992 already exempts special measures 'designed to assist people who
have a disability to obtain greater equality of opportunity or provide them
with benefits to meet their special needs'. An exemption therefore is not
required in order to pay benefits to people with disabilities, but would be
required for measures which negatively impact people with a disability, such as
reducing or suspending payments to those who fail to meet mutual obligation
requirements due to their disability where that disability is a drug or alcohol
dependency.
1.375
It is unclear from the limited information provided in the statement of
compatibility as to why such a broad exemption is required for all social
security laws, given section 45 of the Disability Discrimination Act.
Committee comment
1.376
The committee therefore seeks further information from the
minister as to how the broad exemption of all social security law is
permissible under international law, in particular why such an exemption is
required in view of section 45 of the Disability Discrimination Act.
Advice only
1.377
The committee draws the following bills and instruments to the attention
of the relevant minister or legislation proponent on an advice only basis. The
committee does not require a response to these comments.
Social Security (Tables for the Assessment of Work-related Impairment for
Disability Support Pension) Amendment Determination 2017 [F2017L00659]
Purpose |
Amends tables relating to
the assessment of work-related impairment for the Disability Support Pension,
to eliminate Table 6 – Functioning Related to Alcohol, Drug & Other
Substance Use |
Portfolio |
Social Services |
Authorising legislation |
Social Security Act 1991, subsection 26(1) |
Disallowance |
This regulation was
disallowed on 21 June 2017 |
Rights |
Social security,
non-discrimination, disability (see Appendix 2) |
Status |
Advice only |
Qualification for disability support pension
1.378
In order to qualify for the Disability Support Pension (DSP), a person
must, in addition to other requirements, have a physical, intellectual or
psychiatric impairment assessed as attracting an impairment rating of 20 points
or more under the tables for the assessment of work-related impairment
(impairment tables). In order for the Impairment Tables to apply, the person
must have a medical condition and resulting impairment that are both considered
as permanent for DSP purposes. There are a number of tables tailored to
different functions such as mental health function, hearing, visual function,
continence and spinal function.[205]
1.379
Table 6 is for functioning relating to alcohol, drug and other substance
abuse for people who have 'current, continuing alcohol, drug or other harmful
substance use disorders and those in active treatment' who have a 'permanent
condition resulting in functional impairment'.[206]
The Social Security (Tables for the Assessment of Work-related Impairment for
Disability Support Pension) Amendment Determination 2017 [F2017L00659] (the
measure) sought to repeal Table 6 and rely on the remaining tables to assess
functional impairment.[207]
The effect of removing Table 6 is to restrict qualification for the Disability
Support Pension.
Compatibility of the measure with
human rights
1.380
By restricting qualification for the DSP, the measure engages and may
limit the right to social security, the right to an adequate standard of
living, the right to equality and non-discrimination and the rights of persons
with disabilities. These rights may be subject to permissible limitations
providing they pursue a legitimate objective, are rationally connected to that
objective and are a proportionate means of achieving that objective.
1.381
The statement of compatibility states that the removal of Table 6 will
ensure 'no one will qualify for the DSP on the basis of substance misuse
without demonstrating a permanent functional impairment' and therefore
'maintain the integrity of, and public confidence in, the social security system'
and encourage people with substance abuse issues to manage or overcome their
issues.[208]
1.382
Maintaining the integrity of and confidence in the social security
system and encouraging those with substance abuse issues to manage or overcome
their issues is capable of constituting a legitimate objective under
international human rights law. However, it is not evident from the statement
of compatibility that the measure is effective to achieve (that is, rationally
connected to) and proportionate to that objective.
1.383
In relation to rational connection, Table 6 already requires that a
person have a permanent condition resulting in functional impairment, and that
the condition be fully treated, stabilised and likely to persist for the next
two years. It is therefore unclear how removing Table 6 will encourage affected
persons, who have already undergone some treatment or are in active treatment,
to 'manage or overcome their issues'.
1.384
The statement of compatibility further states that a person with a
substance use disorder may still qualify for DSP if their impairment is able to
be assessed under the remaining tables, pointing to specifically the Mental
Health table.[209]
It is noted that the Table 6 appears to have been initially created on the
basis that there was a perceived need for a separate table focusing on the
functional impact of alcohol, drug or other substance use.[210] It is further noted that
certain impacts inherent in the dependency and addiction such as compulsion and
time spent to procure and consume alcohol, drugs or other substances are not
directly covered by other function tables, but are inherent to the disorder.
1.385
The statement of compatibility also points to the availability of other
income support such as Newstart Allowance. However, this form of social security
is at a lower rate of pay, is aimed at supporting people into employment and is
subject to activity tests and mutual obligation requirements. The requirement
of achieving 20 points under Table 6 means that these people have 'severe
functional impact' and must meet most of a list of indicators including
neglecting personal hygiene and health, spending most of their time using or
procuring substances and/or recovering from their effects, having a physical or
cognitive impairment resulting from the use, having only brief remission, and
being frequently absent from work and other activities.[211]
It is not clear that those who have a permanent disorder that is fully
stabilised, treated and resulting in severe functional impairment will be able
to meet mutual obligation requirements, and therefore have meaningful access to
income support, nor have a reasonable chance at securing and maintaining
employment.
Committee comment
1.386
The committee draws the human rights implications of the Social
Security (Tables for the Assessment of Work-related Impairment for Disability
Support Pension) Amendment Determination 2017 to the minister and
parliament.
1.387
The committee notes that the determination was disallowed on 21
June 2017.
Bills not raising human rights concerns
1.388
Of the bills introduced into the Parliament between 8 and 10 August, the
following did not raise human rights concerns (this may be because the bill
does not engage or promotes human rights, and/or permissibly limits human
rights):
-
Australian Broadcasting Corporation Amendment (Regional
Australia) Bill 2017;
-
Education Services for Overseas Students Amendment Bill 2017;
-
Education Services for Overseas Students (TPS Levies) Amendment
Bill 2017;
-
International Monetary Agreements Amendment (New Arrangements to
Borrow) Bill 2017;
-
Product Emissions Standards Bill 2017;
-
Product Emissions Standards (Consequential Provisions) Bill 2017;
-
Product Emissions Standards (Customs) Charges Bill 2017;
-
Product Emissions Standards (Excise) Charges Bill 2017; and
-
Social Security Amendment (Caring for People on Newstart) Bill
2017.
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