2.98
In relation to this question, the minister's response provides the
following information:
The Committee has sought my advice as to whether there are
'less rights restrictive approaches' than those in paragraphs 13(2)(b), (c) and
(j) of the 2016 Code to achieve the stated objective of protecting the ability
of individuals to choose not to join a union.
In my responses to the Committee on 3 July 2017 and 5 October
2017 I outlined extensive material regarding the coercive culture that exists
within the building and construction industry in which it is understood that
there is such a thing as a 'union site' and on those sites all workers are expected
to be members of a building association, whether voluntary or not. This
included (but was not limited to) a number of findings by courts. Further
decisions have been handed down since my last response of 5 October 2017 in
which the Construction, Forestry, Mining and Energy Union (CFMEU) has
repeatedly engaged in conduct that reinforces the coercive culture that an
individual must be a union member:
- In October 2017 the Federal Court
found the CFMEU in 2015 through its delegate, engaged in adverse action when
that delegate prevented a subcontractor's employee from working on site because
he was not a union member and prevented the same employee from performing work
on site with intent to coerce him to become a union member. The CFMEU also
engaged in coercion when the delegate insisted a second employee of the
subcontractor pay fees to join the CFMEU. In imposing fines of $90,000 on the
CFMEU and $8,000 on the delegate, Justice Tracey stated that ...the
Commissioner has identified 15 cases, since 2000, in which the CFMEU and its
officials have been found to have contravened the Act and its predecessors by
engaging in misconduct with a view to maintaining "no ticket no
start" regimes' ...and that the delegate 'arrogated to himself the right
to determine who would and would not work on the site in order to advance the
'no ticket no start' regime ...'. Justice Tracey also observed that the
CFMEU did not provide any assurance that 'it will direct its shop stewards
not to seek to enforce "no ticket, no start" regimes and to respect
the freedom of association provisions ....' (Australian Building and
Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235).
- In November 2017, the Federal
Court found a CFMEU shop steward in 2014 knowingly made false representations
when, upon learning two employees of a subcontractor were non-paying CFMEU
members, told the first employee 'You need to fix it. I can't let you work
if you're not paid up' and the second ' ...you can't work in here ...This job is a union site'. The court also found that in making the
false representation and refusing the first employee to work on site a few days
later, the shop steward engaged in coercion and adverse action against that employee.
His Honour also found the CFMEU to be vicariously liable for the actions of the
shop steward. The Court is yet to consider the matter of penalties against the
shop steward and the CFMEU (Australian Building and Construction Commission
v Construction, Forestry, Mining and Energy Union (The Quest Apartments
Case) [2017] FCA 1398).
The Committee has asserted the provisions are an overbroad
limitation on freedoms of expression and association in protecting an
individual's right to choose not to join a union. The Committee must however
consider the context in which these provisions were introduced and operate. As
can be seen from the many decisions of the courts, the CFMEU had promoted, and
continues to persistently promote, a coercive culture in which a person cannot
engage in a day's work if they are not a union member.
As was set out in my previous responses alternative
approaches to address and challenge the custom and practice ingrained in the
industry such as education and better mentoring and enforcement have been
employed by the Australian Building and Construction Commission and its
predecessors. It would be preferable if such approaches on their own were
capable of making a difference to the ingrained practice. However, as I
concluded in my response of 5 October 2017, it is clear that these approaches
alone have not been sufficient (and in my view will continue [to] not be
sufficient in the immediate future) to bring about the culture change required
to protect the right of individuals to choose whether or not to join a union.
It is in the context of a persistent coercive culture that
has not responded to more traditional approaches to protecting freedom of
association that the provisions in section 13 are necessary and proportionate.
As I have stated in the previous responses, these provisions do not seek to
eliminate all forms of expression in relation to union membership. Posters
merely encouraging or conveying the benefits of union membership are not
prohibited and an individual can display logos on their own personal clothing.
The provisions are intended to eliminate visual cues that serve to reinforce
the idea of 'union sites'; that is, signs that are directed at harassing or
vilifying an individual on the basis of their participation or non-participation
in industrial activities; 'no ticket, no start' signs; and union logos, mottos
or indicia on employer clothing, property or equipment.
An individual can still seek to express their genuinely held
views about industrial action without necessarily making an individual feel
coerced into joining or not joining an association. As such it cannot in my
view be asserted, as the Committee has done, that the 'limitation on freedom of
expression is extensive'. With respect, the Committee's characterisation of the
issue, that prohibiting 'insulting language or communication' for the purpose
of achieving the stated objective still constitutes a limitation on the right
to freedom of expression, trivialises a very real issue for those actually in
the building and construction workforce.
The provisions are in my view absolutely essential in
addressing the persuasive culture in the building and construction industry and
achieving the objective of protecting the ability of individuals to choose to
join or not to join a union.
2.99
The minister's third response provides a range of further information
which addresses questions related to the proportionality of the limitation in
context. The response points to a range of serious conduct being dealt with by
the courts relating to the ability of persons to choose not to join a union. In
this context, as acknowledged above, protecting the ability not to join a union
would appear to be a legitimate objective for the purposes of international
human rights law.
2.100
In relation to the proportionality of the measure, the minister
reiterates information she previously provided about the extent and scope of
the limitation including exceptions. The view outlined in the committee's
previous report that the limitation on the right to freedom of association and
the right to freedom of expression was potentially extensive and appeared to be
insufficiently circumscribed was based on an assessment of the measures in
light of the scope of these rights and international jurisprudence. Identifying
and assessing these limitations is in accordance with the committee's mandate
under the Human Rights (Parliamentary Scrutiny Act) 2011 and is
different to an assessment of the broader policy merits of the measures.
Relevantly, as noted above, international supervisory bodies have expressed
concerns, from the perspective of the right to freedom of expression and the
right to freedom of association, regarding measures which restrict the display
of union posters or signs in the workplace.
2.101
Further, the minister's response does not clearly articulate how the
proposed measure is the least rights restrictive approach to achieving this
objective. While relevant, the fact there are court cases which are dealing
with such conduct including imposing fines does not necessarily mean the
measure in the code is the least rights restrictive. The minister's third
response states that less rights restrictive approaches such as education and
better monitoring or enforcement have been insufficient to address the stated
objective. However, the minister does not fully explain the extent to which
other less rights restrictive approaches have been considered or explain what
these approaches were. Accordingly, the measure as formulated may not be the
least rights restrictive approach.
Committee response
2.102
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.103
The preceding analysis indicates that the measure may be
incompatible with the right to freedom of association and the right to freedom of
expression under international law.
Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017;
and
Commonwealth Redress Scheme for Institutional Child Sexual Abuse
(Consequential Amendments) Bill 2017
Purpose |
Seeks to establish a
Commonwealth Redress Scheme for Survivors of Institutional Child Sexual Abuse |
Portfolio |
Social Services |
Introduced |
House of Representatives,
26 October 2017 |
Rights |
Right to an effective
remedy, privacy, equality and non-discrimination (see Appendix 2) |
Previous report |
13 of 2017 |
Status |
Concluded examination |
Background
2.104
The committee first reported on the Commonwealth Redress Scheme for
Institutional Child Sexual Abuse Bill 2017 (the bill) and the Commonwealth
Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments)
Bill 2017 in its Report 13 of 2017, and requested a response from the
Minister for Social Services by 20 December 2017.[47]
2.105
The minister's response to the committee's inquiries was received on
20 December 2017. The response is discussed below and is reproduced in full at Appendix 3.
2.106
The minister explained, by way of background, that the bill is a 'first
step to encourage jurisdictions to opt-in to the Scheme, and has been designed
in anticipation of their participation should a referral of powers be
received'. If the states agree to provide a referral of power to participate in
the scheme from its commencement, the minister intends to replace the bill with
a National Redress Scheme for Institutional Child Sexual Abuse Bill 2017 (the
national bill).
Eligibility to receive redress under the Commonwealth Redress Scheme
2.107
The bill seeks to establish a redress scheme (the scheme) for survivors
of institutional child sexual abuse.
2.108
A person is eligible for redress under the scheme if the person was
sexually abused, that sexual abuse is within the scope of the scheme, and the
person is an Australian citizen or permanent resident.[48] Proposed subsections 16(2)
and (3) of the bill provide that the proposed Commonwealth Redress Scheme Rules
(the rules) may also prescribe that a person is eligible or not eligible for
redress under the scheme.[49]
Compatibility of the measure with
the right to equality and non-discrimination
2.109
The right to equality and non-discrimination in the International
Covenant on Civil and Political Rights (ICCPR) provides that everyone is entitled
to enjoy their rights without discrimination of any kind, and that all people are
equal before the law and entitled without discrimination to the equal and non-discriminatory
protection of the law.[50] Article 2 of the Convention on the Rights of the Child (CRC) further provides
that states parties to the CRC must respect and ensure the right to equality
and non-discrimination specifically in relation to children.
2.110
'Discrimination' encompasses both measures that have a discriminatory intent
(direct discrimination) and measures which have a discriminatory effect on the enjoyment
of rights (indirect discrimination). The UN Human Rights Committee has explained
indirect discrimination as 'a rule or measure that is neutral on its face or without
intent to discriminate', which exclusively or disproportionately affects people
with a particular personal attribute.[51]
2.111
As acknowledged in the statement of compatibility, by precluding persons
who are not Australian citizens or permanent residents from being eligible for
the scheme, the restrictions on eligibility discriminate on the basis of
nationality or national origin.
2.112
Persons who are the victim of violations of human rights within
Australia's jurisdiction are entitled to a remedy for breaches of those rights
irrespective of their residency or citizenship status.[52] However, 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 rationally connected to that
legitimate objective and is a proportionate means of achieving that objective.
2.113
The statement of compatibility explains that the restrictions on
eligibility of non-citizens and non-permanent residents are necessary to achieving
legitimate aims of ensuring the scheme receives public support and protecting
against large scale fraud. In relation to the latter, the minister explains:
Non-citizens and non-permanent residents...will be ineligible
to ensure the integrity of the Scheme. Verification of identity documents for
non-citizens and non-permanent residents would be very difficult. Opening the
Scheme to all people overseas could result in organised overseas groups lodging
large scale volumes of false claims in attempts to defraud the Scheme, which
could overwhelm the Scheme's resources and delay the processing of legitimate
applications.[53]
2.114
The initial analysis stated that the objective of ensuring the integrity
of a scheme to provide redress for victims of sexual abuse (such as protection
against fraudulent claims) may be capable of being a legitimate objective for
the purposes of human rights law, but the statement of compatibility did not
provide sufficient information about the importance of this objective in the
specific context of the measure. In order to show that the measure constitutes
a legitimate objective for the purposes of international human rights law, a
reasoned and evidence-based explanation of why the measure addresses a
substantial and pressing concern is required. It was noted that reducing
administrative burdens or administrative inconvenience alone will generally be
insufficient for the purposes of permissibly limiting human rights under
international human rights law. It was also not clear whether there was
evidence to suggest that large scale volumes of attempted fraud of the scheme
may arise if non-citizens were included in the scheme, noting that the Royal
Commission into Institutional Responses to Child Sexual Abuse concluded that it
saw 'no need for any citizenship, residency or other requirements, whether at
the time of the abuse or at the time of the application for redress'.[54]
2.115
In relation to the proportionality of the measure, the statement of
compatibility noted that it will be possible to deem additional classes of
people eligible for redress under the rules. The statement of compatibility
explains that:
This rulemaking power may be used to deem the following
groups of non-citizen, non-permanent residents eligible: those currently living
in Australia, those who were child migrants, and those who were formerly
Australian citizens or permanent residents.[55]
2.116
It was not clear from the information provided why it is necessary to
include these classes of eligibility in a separate legislative instrument,[56] rather than in the primary legislation. Inclusion in the primary legislation of
the classes of non-nationals foreshadowed in the statement of compatibility as
being likely to be ruled eligible by the minister may be a less
rights-restrictive means of achieving the stated objective of the measure.
2.117
The committee therefore sought the advice of the minister as to:
- whether the restriction on
non-citizens' and non-permanent residents' eligibility for redress under the
scheme is aimed at achieving a legitimate objective for the purposes of human
rights law (including any information or evidence to explain why the measure
addresses a pressing and substantial concern);
- how the measure is effective to
achieve (that is, rationally connected to) that objective; and
- whether the restriction on
non-citizens' and non-permanent residents' eligibility for the scheme is
proportionate to achieve the stated objective (including whether there are less
rights-restrictive means available to achieve the stated objective).
Minister's response
2.118
In relation to whether the restriction on non-citizens' and
non-permanent residents' eligibility for redress under the scheme is aimed at achieving
a legitimate objective, the minister's response states that, as the scheme is
voluntary, it is important that the scheme provide 'appropriate architecture to
support its integrity and legitimacy' to ensure maximum participation from
institutions which, in turn, will maximise the opportunity for survivors to
seek redress. The minister explained the difficulties of identifying and
verifying the identity of those making the claim in the context of non-citizens
and non-permanent residents as follows:
A core principle of the Scheme is to ensure redress is paid
to those who are eligible. It is important that the Scheme can identify and
verify the identity of those making a claim...
Given the comparative size of the monetary payments under the
Scheme and the relatively low evidentiary burden that will be required of
survivors making applications, the risk of fraud is a key concern. Verification
of proof of identity is one means by which the Scheme can limit attempted
fraud. Opening eligibility to non-citizens and non-permanent residents would
significantly increase the difficulty of proof of identity verification for those
applicants and increase overall processing times of applications. Verification
of identity of those who are non-citizens and non-permanent residents would
require primary documentation and verification from foreign governments and
Australian embassies.
...large volumes of false claims from organised overseas groups
could overwhelm the Scheme's resources and delay the processing of legitimate
applications. In this regard, the Commonwealth Government is continually
undertaking fraud detection work to ensure the integrity of social security
payments and there is evidence of organised crime attempting to defraud the
Commonwealth. However, providing evidence of this nature to the committee may
compromise fraud detection activities.
2.119
In response to the committee's concern that reducing administrative
burdens is generally insufficient to constitute a legitimate objective for the
purposes of international human rights law, the minister explained the
importance of timely decision-making in the context of the bill as follows:
...however I would emphasise that the nature of the survivor
cohort is such that timeliness in processing Scheme applications is critical.
Over half of the survivors anticipated to apply to the Scheme are over the age
of 50, and so significant delays to the processing of applications may result
in survivors passing away before they have the opportunity to apply for or
accept redress. It is widely recognised that survivors of child sexual abuse
also experience poorer health and social outcomes, amplifying the need for
timely decision-making and for promoting the rights of survivors.
It is important that our policy settings support the
integrity and appropriate targeting of payments. Should the Scheme not
safeguard against potential fraud, institutions may choose not to participate,
or may seek to leave the Scheme.
2.120
The minister's response provides reasoning and an evidence-based
explanation of how the measure addresses a substantial and pressing concern.
The information provided in the minister's response indicates that the measure
is likely to pursue a legitimate objective for the purposes of international
human rights law. Restricting eligibility criteria of non-citizens and
non-permanent residents also appears to be rationally connected to the stated
objective.
2.121
As to whether the limitation is proportionate to achieving the stated
objective, the minister's response notes that it is necessary for the classes
of non-citizens referred to in the explanatory memorandum to be contained in a
separate legislative instrument because investigation and consultation is
continuing across government and with states and territories to determine if
there are other classes of survivors that do not fit within the citizenship
requirements that should be deemed eligible for the scheme. The minister
further explains:
There may also be classes of survivors that will apply for
redress that the Scheme has not, or could not, envisage including in the
legislation. The Scheme may not have accounted for categories of survivors that
it needs to deal with promptly, to ensure the timely processing of applications
and the best outcomes for survivors so subclause 16(2) of the Commonwealth Bill
is necessary to allow the Scheme to respond to situations as they arise....
Restricting the eligibility of non-citizens and non-permanent
residents is necessary to achieve the legitimate aims of ensuring that
survivors are provided the redress to which they are entitled in a timely
manner, and that redress is provided only to those who submit genuine claims.
Subsection 16(2) of the Commonwealth Bill will allow discretion to deem
categories of survivors eligible despite these restrictions, such as child
migrants. This ensures that the limitation of survivors' rights is
proportionate.
I am considering the committee's suggestion to include these
predetermined cases in primary legislation in the context of any future
legislation developed to reflect a national redress Scheme.
2.122
The concern as to the proportionality of precluding non-citizens and
non-permanent residents from being eligible for the scheme is informed by the
conclusion of the Royal Commission into Institutional Responses to Child Sexual
Abuse that it saw 'no need for any citizenship, residency or other
requirements, whether at the time of the abuse or at the time of the
application for redress'.[57] As victims of violations of human rights within Australia's jurisdiction
are entitled to a remedy for breaches of those rights irrespective of their
residency or citizenship status, there are concerns that some survivors of
child sexual abuse that would otherwise be eligible for the scheme may lose
access to a remedy. However, as the minister's response explains, the power to
determine in the rules further classes of persons eligible for redress notwithstanding
the citizenship and residency requirements may address these concerns. If the
bill is passed, the committee will consider the human rights implications of
the rules once they are received.
Committee response
2.123
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.124
The preceding analysis indicates that restricting the eligibility
of non-citizens and non-permanent residents engages and limits the right to
equality and non-discrimination. While the measure pursues a legitimate
objective, there are concerns that the breadth of the restriction on the
eligibility of all non-citizens and non-permanent residents may not be
proportionate. However, setting out further classes of persons who may be
eligible in the proposed redress scheme rules, including those who would
otherwise be excluded due to not being citizens or permanent residents, may be
capable of addressing these concerns. If the bill is passed, the committee will
consider the human rights implications of the legislative instrument once it is
received.
2.125
The committee notes that the minister has indicated he will
consider including further classes of persons who will be eligible for the
scheme in any future legislation developed to reflect a national redress
scheme.
Compatibility of the measure with
the right to an effective remedy for breaches of human rights
2.126
Article 2(3) of the ICCPR requires State parties to ensure that persons
whose human rights have been violated have access to an effective remedy. States
parties are required to establish appropriate judicial and administrative
mechanisms for addressing claims of human rights violations under domestic law,
and to make reparation to individuals whose rights have been violated.
Effective remedies can involve restitution, rehabilitation and measures of
satisfaction – such as public apologies, public memorials, guarantees of
non-repetition and changes in relevant laws and practices – as well as bringing
to justice the perpetrators of human rights violations. Such remedies should be
appropriately adapted to take account of the special vulnerabilities of certain
categories of persons, including, and particularly, children.
2.127
The redress scheme seeks to provide remedies in response to
historical failures of the Commonwealth and other government and non-government
organisations to uphold human rights obligations, including the right of every
child to protection by society and the state,[58] and the right of every child to protection from all forms of physical and
mental violence, injury or abuse (including sexual exploitation and abuse).[59] As acknowledged in the statement of compatibility, by implementing a redress
scheme for victims who were sexually abused as children, the scheme promotes
the right to state-supported recovery for child victims of neglect,
exploitation and abuse under article 39 of the CRC.[60]
2.128
The power in proposed subsections 16(2) and (3) to determine eligibility
by way of the proposed rules is broad and, in particular, the minister has a
very broad power to determine persons to be ineligible for the scheme. It was
noted in the initial analysis that in media reports concerning the introduction
of the bill, the minister foreshadowed that he proposes to exclude persons from
being eligible if they have been convicted of sex offences, or sentenced to
prison terms of five years or more for crimes such as serious drug, homicide or
fraud offences.[61]
2.129
International human rights law jurisprudence states that laws conferring
discretion or rule-making powers on the executive must indicate with sufficient
clarity the scope of any such power or discretion conferred on competent
authorities and the manner of its exercise.[62] This is because, without sufficient safeguards, broad powers may be exercised
in such a way as to be incompatible with human rights. The initial
analysis noted that the breadth of the power to determine eligibility or
ineligibility contained in the bill may therefore engage and limit the right of
survivors of sexual abuse to an effective remedy. The statement of
compatibility does not acknowledge that the right to an effective remedy is
engaged by this aspect of the bill.[63]
2.130
While the statement of compatibility discusses limiting eligibility of
persons on the basis of survivors' nationality and residency status,[64] no information is provided in the statement of compatibility as to the
rationale for a broad power to determine eligibility or ineligibility by way of
the proposed rules. As limited information has been provided in the statement
of compatibility on this point, it is not possible to determine the extent to
which the right to an effective remedy may be engaged and limited by this
aspect of the bill, and whether such a limitation is permissible.
2.131
The committee therefore sought the advice of the minister as to the
compatibility of the measure with the right to an effective remedy.
Minister's response
2.132
In relation to the rationale for using the rules to provide for further
classes of eligibility or ineligibility rather than the primary legislation,
the minister explained:
The Scheme is designed to be responsive to survivors' and
participating institutions' needs. Flexibility is needed to allow adjustments
for the differing needs of survivors, participating institutions, and to enable
the Scheme to quickly implement changes required to ensure positive outcomes
for survivors. This is why it is necessary for elements of the Scheme to be in
delegated legislation.
Using rules, rather than regulations or incorporating all
elements of the Scheme in the Commonwealth Bill, provides appropriate
flexibility and enables the Scheme to respond to factual matters as they arise.
It is uncertain how many applications for redress the Scheme will receive at
its commencement, and whether there will be unforeseen issues requiring prompt
responses. It is therefore appropriate that aspects of the Scheme be covered by
rules that can be adapted and modified in a timely manner. The need to respond
quickly to survivor needs is also a key feature of the Scheme as many survivors
have waited decades for recognition and justice.
2.133
Responding quickly and with flexibility to survivors' needs and seeking
to ensure positive outcomes for survivors in the redress scheme is relevant to
providing an effective remedy for violations of human rights.
2.134
As to how the power is proposed to be exercised, the minister explained
that subsection 16(3) would be used in 'exceptional circumstances', excluding
persons from the scheme if they have been convicted of sex offences, or
sentenced to prison terms of five years or more for crimes such as serious
drug, homicide or fraud offences. In relation to this proposed exclusion, the
minister explained:
As the committee rightly highlights, this significant matter
should not be delegated to subordinate legislation. The limitation on
eligibility for persons with criminal convictions will therefore be included in
the primary legislation of the proposed National Bill. There could be a
perception that the Commonwealth Bill limits the rights to effective remedy for
survivors with criminal convictions. However, the decision was made that in
order to give integrity and public confidence to the Scheme, there had to be
some limitations for applications from people who themselves had committed
serious offences, but particularly sexual offences.
The eligibility policy has been developed in consultation
with State and Territory Attorneys-General, who were almost unanimous in their
view that reasonable limitations on applications is necessary to have public
faith and confidence in the Scheme. Excluding some people based on serious
criminal offences is necessary to ensure taxpayer money is not used to pay
redress to those who may not meet prevailing community standards.
2.135
Noting Australia's obligation to provide effective remedies for victims
of human rights violations, any proposed restrictions on eligibility on persons
with criminal records will need to be carefully considered. In this respect,
the UN Human Rights Committee has stated that the right to an effective remedy
is an obligation inherent in the ICCPR as a whole and so, while limitations may
be placed in particular circumstances on the nature of the remedy provided
(judicial or otherwise), there is an absolute obligation to provide a remedy
that is effective.[65]
2.136
Relevantly, in relation to the matters raised by the minister, the Final
Report noted the impact of child sexual abuse on a survivor may manifest
itself in 'interconnected and complex ways', including the development of
'addictions after using alcohol or other drugs to manage the psychological
trauma of abuse, which in turn affected their physical and mental health,
sometimes leading to criminal behaviour and relationship difficulties.'[66] A number of survivors who appeared before the royal commission had described
how the impact of child sexual abuse had contributed to criminal behaviour as
adolescents and adults.[67] This information raises concerns as to whether there is a reasoned and evidence-based
explanation of how the proposed exclusion addresses a substantial and pressing
concern, and whether any such exclusion is proportionate.
2.137
However, the minister further explained the discretion to determine
eligibility for redress of survivors, including survivors who have criminal
convictions:
However, the Scheme Operator will have discretion at
subsections 16(2) and (3) of the Commonwealth Bill to determine the eligibility
of survivors applying for redress on a case-by-case basis, including survivors
who are currently, or have been, incarcerated. Importantly, the Scheme Operator
can use this discretion to deem a person eligible for redress if they are
otherwise ineligible due to the criminal convictions exclusions. In considering
whether to exercise discretion, the Scheme Operator will consider the nature of
the crime committed, the duration of the sentence and broader public interest
issues. The Scheme Operator discretion is also intended to mitigate the impact
of jurisdictional differences in crimes legislation. For example, mandatory
minimum sentences for certain offences may lead to some applicants receiving
longer sentences than they would in other jurisdictions, and perhaps making
them ineligible for the Scheme.
2.138
The minister also explained that 'all aspects of the Scheme have been
subject to ongoing consultation' and that any legislative changes, including
creating or amending legislative instruments, would be undertaken in
consultation and agreement of a proposed Board of Governance established to
advise on the scheme. The ability of the scheme operator to exercise discretion
in the way proposed by the minister may address some of the concerns in
relation to the compatibility of the measure with the right to an effective
remedy, insofar as it places limits on how the broad power may be exercised and
may ensure that survivors are eligible for the scheme. The committee will
assess the human rights compatibility of any proposed rules or provisions in
the proposed national bill that excludes persons convicted of certain offences
once it is introduced.
Committee response
2.139
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.140
Noting the broad scope of the proposed power to determine
eligibility or ineligibility in the national redress scheme rules, there may be
concerns as to the compatibility of this measure with the right to an effective
remedy. In particular, there are concerns in relation to the proposed exclusion
of persons with certain criminal convictions from being eligible for the
scheme. However, the discretion of the scheme operator to determine eligibility
of survivors if they are otherwise ineligible may be capable of addressing some
of these concerns. If the bill is passed, the committee will consider the human
rights implications of any legislative instrument or proposed National Redress
Scheme for Institutional Child Sexual Abuse Bill when it is received or
introduced.
2.141
The committee notes the minister's intention to include any
limitation on eligibility for persons with criminal convictions in the primary
legislation of the proposed National Redress Scheme for Institutional Child
Sexual Abuse Bill.
Power to determine when a participating institution is not responsible for
sexual or non-sexual abuse
2.142
Proposed section 21 of the bill sets out when a participating institution
is responsible for abuse. Subsection 21(7) provides that a participating
institution is not responsible for sexual or non-sexual abuse of a person if it
occurs in circumstances prescribed by the rules as being circumstances in which
a participating institution is not, or should not be treated as being,
responsible for the abuse of a person.
Compatibility of the measure with the
right to an effective remedy for breaches of human rights
2.143
The statement of compatibility does not acknowledge that the right to an
effective remedy is engaged by the power to determine by way of rules when a
participating institution is not responsible for sexual or non-sexual abuse.
However, as noted earlier, broad rule-making powers conferred on the
executive may be incompatible with the right to an effective remedy where those
powers are exercised in a manner that is incompatible with the right. Further,
where public officials or state agents have committed violations of human
rights, states parties concerned may not relieve perpetrators from personal
responsibility through the granting of amnesties, legal immunities and
indemnities.[68]
2.144
The explanatory memorandum provides that proposed subsection 21(7) is
intended to ensure that institutions are not found responsible for abuse that
occurred in circumstances where it would be unreasonable to hold the
institution responsible. The explanatory memorandum states by way of example
that such circumstances may include where child sexual abuse was perpetrated by
another child and the institution could not have foreseen this abuse occurring
and could not be considered to have mismanaged the situation.[69]
2.145
As limited information has been provided in the statement of
compatibility on this point, the initial analysis stated that it is not possible
to determine the extent to which the right to an effective remedy may be
engaged and limited by this aspect of the bill. The committee therefore sought
the advice of the minister as to the compatibility of the measure with the
right to an effective remedy.
Minister's response
2.146
The minister's response provides the following information in relation
to the committee's inquiries:
As the Committee has noted, subclause 21(7) of the
Commonwealth Bill is intended to operate to ensure that participating institutions
are not found responsible for abuse that occurred in circumstances where it
would be unreasonable to hold the institution responsible.
The power in subclause 21(7) will also be used to clarify
circumstances where a participating government institution should not be
considered responsible. Such circumstances may include:
- where the government only had a
regulatory role over a non-government institution;
- where the government only provided
funding to a non-government institution; and
- where the only connection is that
the non-government institution was established under law enacted by the
government.
Until institutions opt in to the Scheme, it is not possible
to envisage every possible circumstance to include in the legislation. These
rulemaking provisions allow the Scheme to be responsive to the realities of
implementation, which is necessary to achieve the legitimate aim of public and
institutional support for the Scheme. Were the Scheme too fixed in its
methodology, the Scheme may face criticism for reaching unreasonable decisions.
2.147
Providing for a national redress scheme that is responsive to issues
that arise in relation to the scheme's implementation is likely to be a
legitimate objective for the purposes of international human rights law, and
providing a rule-making power to address such issues is likely to be rationally
connected to this objective. As noted in the initial analysis, the
concerns arise in relation to how the rule-making power may be exercised. Were
the power to be exercised in a manner that was to relieve perpetrators from
personal responsibility, this may be incompatible with the right to an
effective remedy. However, the examples provided by the minister in his
response indicate that the rule-making power may be exercised where a participating
institution's role was minimal. If the bill is passed, the committee will
consider the human rights implications of the instrument once it is received.
Committee response
2.148
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.149
Noting the broad scope of the proposed power to determine by way
of rules when a participating institution is not responsible for sexual or
non-sexual abuse, there may be human rights concerns in relation to its
operation. This is because its scope is such that it could be used in ways that
may risk being incompatible with the right to an effective remedy. If the bill
is passed, the committee will consider the human rights implications of any
redress scheme rules once they are received.
Bar on future civil liability of participating institutions
2.150
Proposed sections 39 and 40 of the bill provide that where an eligible
person receives an offer of redress and chooses to accept that offer, the
person releases and forever discharges all institutions participating in the
scheme from all civil liability for abuse of the person that is within the
scope of the scheme, and the eligible person cannot (whether as an individual,
a representative party or a member of a group) bring or continue any civil
claim against those participating institutions in relation to that abuse.
Compatibility of the measure with the
right to an effective remedy for breaches of human rights
2.151
As noted earlier, the right to an effective remedy requires State
parties to the ICCPR to establish appropriate judicial and administrative
mechanisms for addressing claims of human rights violations, and further
requires that State parties may not relieve perpetrators from personal
responsibility for breaches of human rights.
2.152
Insofar as the bill requires persons who accept an offer of redress
under the scheme to relinquish their right to seek further civil remedies from
responsible institutions for sexual abuse and related non-sexual abuse, the
bill may engage the right to an effective remedy. The statement of
compatibility acknowledges that the right to an effective remedy may be engaged
and limited by this aspect of the bill, but considers that any limitation is
reasonable, necessary and proportionate to ensuring the scheme's integrity and
proper functioning.[70] In particular, the statement of compatibility explains:
Due to its non-legalistic nature, redress through the Scheme
will be a more accessible remedy for eligible survivors than civil litigation.
Entitlement to redress is determined based on a standard of ‘reasonable
likelihood’, which is lower than the standard for determining the outcome of
civil litigation, which is the balance of probabilities. The availability of
redress is dependent on the extent to which Territory government and
non-government institutions opt-in to the Scheme. Consultation has shown that
institutions are not likely to opt-in to the Scheme if they remained exposed to
paying compensation through civil litigation in addition to paying monetary
redress. Attaching the release to entitlement to all elements of redress is
necessary to encourage institutions to opt-in and to make redress available to
the maximum number of survivors.[71]
2.153
However, relinquishing a person's opportunity to pursue civil litigation
and possible common law damages is a significant decision for a victim of abuse
to make, particularly as the amount to be provided under the redress scheme is
capped at $150,000.[72] The minister explains that, in order to acknowledge the limitation on the right
to an effective remedy that arises from this aspect of the bill:
...the Scheme will deliver free, trauma informed, culturally
appropriate and expert Legal Support Services. These services will be available
to survivors for the lifetime of the Scheme at relevant points of the
application process, and will assist survivors to understand the implications
of releasing responsible institutions from further liability. This means that
survivors will be able to make an informed choice as to whether they wish to
accept their offer and in doing so release the institution from civil liability
for abuse within the scope of the Scheme or seek remedy through other avenues.[73]
2.154
Notwithstanding the description of the proposed legal support services
described in the statement of compatibility, the bill itself includes limited
detail as to the provision of legal advice to survivors of sexual abuse.
Proposed section 37(1)(g) of the bill requires that a written offer of redress
to an eligible person 'gives information about the opportunity for the person to
access legal services under the scheme for the purposes of obtaining legal
advice about whether to accept the offer'. The provision of legal services
under the scheme is to be determined by legislative instrument.[74] The initial analysis stated that further information as to the content of the
proposed rules relating to the provision of legal services would assist in
determining whether this will serve as a sufficient safeguard so as to support
the measure constituting an effective remedy.[75]
2.155
The committee therefore sought the advice of the minister as to the
compatibility of the measure with the right to an effective remedy, in
particular the content of the proposed rules relating to the provision of legal
services under the scheme.
Minister's response
2.156
In response, the minister provided the following information:
The measure is supported by proportionate and essential
safeguards for survivors through the provision of a free community-based legal
service to ensure survivors understand the legal implications of signing a
release. The free community-based legal service will be available to survivors
at the commencement of their engagement with the Scheme. The website, helpline
and other engagement documents will make it clear to survivors that a release
will be required in order to receive redress under the Scheme. The Scheme will
make available legal advice during this process so that survivors understand
the legal implications.
The Rules will include a provision which provides funding for
legal services for the purposes of a person receiving trauma informed,
culturally appropriate and expert legal advice as required throughout the
Scheme.
Legal services will be available during the four key stages
of the redress application process:
- prior to application so survivors understand eligibility
requirements and the application process of the Scheme;
- during completion of a survivor's application;
- after a survivor has received an offer of redress
(including if they elect to seek an internal review); and
- on the effect of signing a Deed of Release (DoR),
including its impact on the prospect of future litigation.
Survivors will be able to obtain free legal assistance on an
ongoing basis as required across each of the above four stages.
The Rules will also include a provision that allows a person
who cannot access the funded legal service because of a conflict of interest,
to be referred to another legal firm and have their legal costs covered by the
Scheme's legal services provider.
In relation to the release, legal support could include:
- providing an explanation of the
factors which make up the offer survivors have received and the matters
considered by the assessment team;
- identifying the potential rights
that the survivor is releasing; and
- helping the survivor decide
whether they wish to accept the offer or not.
2.157
This information provides useful further information as to the content
of the proposed rules relating to the provision of legal services. However,
whether the safeguards are sufficient so as to be compatible with the right to
an effective remedy will depend on the precise wording of the rules, and
therefore the committee will consider the human rights compatibility of the
rules when the instrument is received.
Committee response
2.158
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.159
The bar on future civil liability of participating institutions
may engage and limit the right to an effective remedy. However, the proposed
rules governing the provision of legal services under the redress scheme may
operate as a sufficient safeguard so as to support the human rights
compatibility of the measure. The committee will consider the compatibility of
the proposed rules governing the provision of legal services, and whether they
offer adequate safeguards, when they are received.
Information Sharing Provisions
2.160
Proposed section 77 of the bill sets out the circumstances in which the Commonwealth
Redress Scheme Operator[76] (the Operator) may disclose protected information. 'Protected information' is defined
in proposed section 75 of the bill as information about a person obtained by an
officer for the purposes of the scheme that is or was held by the department.
The Operator can disclose such protected information if it was acquired by an
officer in the performance of their duties or in the exercise of their powers
under the bill if the Operator certifies that the disclosure is necessary in
the public interest in a particular case or class of case, and the disclosure
is to such persons and for such purposes as the Operator determines.[77] Disclosure may also be made by the Operator to certain persons set out in the
bill, including the secretary of a department, the chief executive of
Centrelink and the chief executive of Medicare.[78]
Compatibility of the measure with
the right to privacy
2.161
The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information,
particularly the storing, use and sharing of such information; and the right to
control the dissemination of information about one's private life.
2.162
The information sharing powers of the Operator in proposed section 77 of
the bill engage and limit the right to privacy by providing for the disclosure
of protected information. As acknowledged in the statement of compatibility,
this protected information may include highly sensitive information about child
sexual abuse the person has experienced.[79]
2.163
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.
2.164
As outlined in the initial analysis, the statement of compatibility
acknowledges that the right to privacy is engaged by the information sharing
provisions in the bill, which includes proposed section 77. However, the
statement of compatibility explains any limitation by the information sharing
provisions on the right to privacy is permissible, as the provisions are
'necessary to achieve the legitimate aims of assessing eligibility under the
Scheme and protecting children from abuse, and are appropriately limited to
ensure that they are a proportionate means to achieve those aims'.[80]
2.165
The initial analysis stated that the objective of protecting children
from abuse is a legitimate objective under international human rights law.
Collecting, using and disclosing this information to relevant bodies so as to
prevent abuse and provide redress is likely to be rationally connected to this
objective.
2.166
As to the proportionality of the measure, limitations on the right to
privacy must be no more extensive than what is strictly necessary to achieve
the legitimate objective of the measure. The statement of compatibility
explains the broad rationale for allowing persons to obtain and disclose
protected information for the purposes of the scheme as follows:
To establish eligibility, survivors will be required to
supply the Scheme with personal information including highly sensitive
information about the child sexual abuse they experienced. To progress the
application to assessment, limited survivor and alleged perpetrator details
will be provided, with the survivor’s consent, to the participating
institutions identified in their application. Participating institutions will
be able to use this information in a limited way to facilitate making insurance
claims and to institute internal disciplinary procedures where an alleged perpetrator
or person with knowledge of abuse is still associated with the institution.
Participating institutions will be required to provide the Scheme with specific
information pertaining to survivors and alleged perpetrators, including
survivor and the alleged perpetrator’s involvement with the institution, any
related complaints of abuse made to the institution and details of any prior
payments made to the survivor. This collection and exchange of information is
necessary for the eligibility assessment process and information under the
Scheme will be subject to confidentiality. Outside of Scheme representatives,
only survivors and those they nominate will have access to records relating to
their application. Strict offence provisions will be put in place to mitigate
risks of unlawful access, disclosure, recording, use, soliciting or offering to
supply Scheme information.[81]
2.167
However, the statement of compatibility does not appear to address the
proportionality of the bill insofar as it relates to the Operator's disclosure
powers in proposed section 77. The power in proposed section 77 for the
Operator to disclose information is very broad: the Operator can disclose
protected information to 'such persons and for such purposes as the Operator
determines', provided the Operator considers it necessary in the public
interest to do so.[82] It is not clear from the statement of compatibility whether it is strictly
necessary to include such a broad category of persons to whom disclosure may be
made by the Operator, and what circumstances will constitute a 'public
interest', which raises concerns that these information sharing provisions may
not be sufficiently circumscribed.
2.168
Another relevant factor in assessing proportionality is whether there
are adequate safeguards in place to protect the right to privacy. It was noted
that there are penalties in place for persons who engage in unauthorised
recording, disclosure or use of protected information.[83] However, the powers of the Operator to disclose information in the public
interest in proposed section 77 do not appear to be accompanied by safeguards
present in other information sharing provisions in the bill, such as a
requirement that the Operator consider the impact disclosure may have on a
person to whom the information relates. By way of contrast, it was noted
that there is a separate provision in section 78 of the bill addressing
disclosure of protected information to certain agencies (such as the Australian
Federal Police or state and territory police forces) for the purposes of law
enforcement or child protection, where there is a safeguard in place that
requires the Operator to have regard to the impact the disclosure might have on
the person,[84] as well as a requirement that the Operator is satisfied that disclosure of the
information is reasonably necessary for the enforcement of the criminal law or
for the purposes of child protection.[85] Further, the initial analysis stated that disclosure for other purposes such as
for the purpose of the participating institution facilitating a claim under an
insurance policy must only occur if there has been consideration to the impact
that disclosure might have on the person who has applied for redress.[86] It is not clear from the statement of compatibility why such safeguards are
available in relation to some information sharing provisions in the bill, but
not in relation to the Operator's disclosure powers in proposed section 77.
2.169
The committee therefore sought the advice of the minister as to whether
the limitation on the right to privacy is proportionate to the stated objective
of the measure (including whether there are adequate safeguards in place in
relation to disclosure by the Operator of protected information).
Minister's response
2.170
The minister's response provides the following information in relation
to the committee's inquiries:
Section 77 of the Commonwealth Bill has been drafted to
reflect similar provisions in other legislation within the Social Services
portfolio, which routinely deals with a person's sensitive information and
provides a consistent approach to the way in which the Department deals with
protected information. It was considered appropriate to provide a power to
enable rules to be made by the Minister if it was considered necessary to
assist with the exercise of the Scheme Operator's disclosure of protected
information. This provides flexibility to address any circumstances that arise
which are of sufficient public interest to warrant the exercise of that power.
Incorporating high-level rules in the Commonwealth Bill would restrict the
Scheme Operator's power to make a public interest disclosure to those
circumstances set out in the Commonwealth Bill.
Careful consideration will be given to ensure that any
personal information held by the Scheme Operator is given due and proper
protection. It is envisaged the power to make public interest disclosures will
only be used where it is necessary to prevent, or lessen, a threat to life,
health or welfare, for the purpose of briefing the Minister or if the
information is necessary to assist a court, coronial inquiry, Royal Commission,
or similar, for specific purposes such as a reported missing person or a
homeless person. These criteria are some of those that are already outlined in
other legislation in the Social Services portfolio that govern public interest
certificates, such as the Social Security (Public Interest Certificate
Guidelines) (DSS) Determination 2015 and the Paid Parental Leave Rules
2010.
Despite there not being a positive requirement in the
Commonwealth Bill, the intention is to make rules to regulate the Scheme
Operator's disclosure power to ensure that the limitation on the right to
privacy is proportionate to achieve the various legitimate aims of public
interest disclosures. However, the Committee's concerns are noted and I will
consider including a positive requirement for rules in the National Bill,
including a requirement that the Scheme Operator must have regard to the impact
the disclosure may have on a person to whom the information relates.
2.171
The minister's response provides useful information as to the scope of
the Operator's power to make public interest disclosures. In particular, the
minister's explanation that the power is proposed to be exercised in similar
circumstances to those outlined in other instruments that govern public
interest certificates such as the Social Security (Public Interest Certificate
Guidelines) (DSS) Determination 2015, suggests any disclosure of
personal information would be exceptional.[87] Disclosure in the circumstances outlined by the minister (namely, where it is
necessary to prevent, or lessen, a threat to life, health or welfare, for the
purpose of briefing the Minister or if the information is necessary to assist a
court, coronial inquiry, Royal Commission, or similar, for specific purposes
such as a reported missing person or a homeless person) would likely be
sufficiently circumscribed so as to constitute a proportionate limitation on
the right to privacy.
2.172
It is also noted that the minister intends to make rules regulating the
Scheme Operator's disclosure power and is also considering including a positive
requirement for rules in any proposed national bill, as well as a safeguard by
requiring the Scheme Operator to have regard to the impact disclosure may have
on a person to whom the information relates. Such matters would likely address
the concerns outlined in the initial analysis as to the scope of the power and
the sufficiency of safeguards.
Committee response
2.173
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.174
The further information provided by the minister indicates that the
power to make public interest disclosures will only be used where it is
necessary to prevent, or lessen, a threat to life, health or welfare, for the
purpose of briefing the minister or if the information is necessary to assist a
court, coronial inquiry, Royal Commission, or similar, for specific purposes
such as a reported missing person or a homeless person. The committee notes
that disclosure in such circumstances may be sufficiently circumscribed such
that the measure would be a proportionate limitation on the right to privacy.
The committee recommends that the Scheme Operator's disclosure power be
monitored by government to ensure that any limitation on the right to privacy
be no more extensive than what is strictly necessary.
2.175
The committee will consider the human rights compatibility of the
proposed rules to regulate the Scheme Operator's disclosure power when they are
received.
2.176
The committee notes that the minister has indicated he will
consider including a positive requirement that the Scheme Operator must have
regard to the impact the disclosure may have on a person to whom the
information relates in any future legislation developed to reflect a national
redress scheme, and will also consider including a positive requirement for
rules to regulate the Scheme Operator's disclosure power.
Absence of external merits review and removal of judicial review
2.177
The bill establishes a system of internal review of determinations made
under the scheme.[88] No provision is provided in the bill for determinations to be able to be
subject to external merits review. Pursuant to the internal review procedure, a
person may apply to the Operator to review a determination made in relation to
redress and the Operator must cause that determination to be reviewed by an
independent decision-maker to whom the Operator's power under this section is
delegated, and who was not involved in the making of the determination.[89] A person reviewing the original determination must reconsider the determination
and either affirm, vary, or set aside the determination and make a new
determination.[90]
When reviewing the original determination, the person may only have regard to
the information and documents that were available to the person who made the
original determination.[91]
2.178
The Commonwealth Redress Scheme for Institutional Child Sexual Abuse
(Consequential Amendments) Bill 2017 (the consequential amendments bill)
exempts decisions made under the scheme from judicial review under the Administrative
Decisions (Judicial Review) Act 1977 (ADJR Act).[92]
Compatibility of the measure with
the right to a fair hearing
2.179
Article 14(1) of the ICCPR requires that in the determination of a
person's rights and obligations in a suit at law, everyone shall be entitled to
a fair and public hearing by a competent, independent and impartial tribunal
established by law. A determination of a person's entitlement to redress as a
result of sexual abuse, and a finding of responsibility on the part of
institutions for such abuse, involves the determination of rights and
obligations and therefore is likely to constitute a suit at law.[93]
2.180
The initial analysis stated that the absence of external merits review
and the removal of a form of judicial review may engage and limit the right to
a fair hearing, as it limits survivors' opportunities to have their rights and
obligations determined by an independent and impartial tribunal. However, the
statement of compatibility does not acknowledge that the right to a fair
hearing is engaged by the measures.
2.181
A limitation on the right to a fair hearing may be permissible if it
pursues a legitimate objective, is rationally connected to that legitimate
objective and is a proportionate means of achieving that objective.
2.182
The explanatory memorandum to the consequential amendments bill explains
the rationale for limiting the scheme to internal review and the removal of
judicial review. In particular, the explanatory memorandum explains that
judicial review may cause undue administrative delays under the scheme, and the
internal review mechanism is intended to prevent re-traumatising victims
through having to re-tell their story of past institutional child sexual
abuse.
2.183
Preventing re-traumatisation of victims of sexual abuse is likely to be
a legitimate objective under international human rights law. However, in
circumstances where the victim themselves may choose to pursue external review
(by way of merits review or judicial review) if they are unsatisfied with the
decision, it is not clear based on the information provided that preventing
victims from pursuing external review if dissatisfied with the internal
decision would be an effective means of achieving this objective.
2.184
Further, the explanatory memorandum explains that, when internally
reviewing the decision, the Operator or independent decision-makers are not
permitted to have been involved in making the original decision under review.
However, it was unclear whether the internal review mechanism provides greater
or lesser scope for independent and impartial review than that which would be
provided by the (external) Administrative Appeals Tribunal. It was not clear,
therefore, whether the internal review mechanism is an effective substitute for
external review.
2.185
The committee therefore sought the advice of the minister as to the
compatibility of the measure with the right to a fair hearing, including:
- whether the absence of external
merits review and removal of judicial review pursues a legitimate objective;
- whether the measures are
rationally connected to (that is, effective to achieve) that objective; and
- whether the measures are a
proportionate means of achieving the stated objective.
Minister's response
2.186
The minister's response provides the following information on the
internal review mechanism:
The decision to exclude external merits review for applicants
was made on the advice of the Independent Advisory Council on Redress and
following the Royal Commission's recommendation on this matter. The Council
recommended the Scheme provide survivors with access to an internal review
process, but no access to external merits or judicial review as it considered
that providing survivors with external review would be overly legalistic, time
consuming, expensive and would risk further harm to survivors. If judicial
review avenues were available, many survivors may have unrealistic expectations
of what could be achieved given the low evidentiary barrier to entry to the
Scheme compared to civil litigation, and that therefore the judicial review
process is likely to re-traumatise a survivor.
The Department of Social Services will recruit appropriately
qualified, independent assessors, known as Independent Decision Makers, who
will make all decisions on applications made to the Scheme. Independent
Decision Makers will not report or be answerable to Government. These
Independent Decision Makers will be able to provide survivors with access to independent
and impartial review without subjecting them to potential re-traumatisation.
Members of the Administrative Appeals Tribunal are appointed
based on their judicial experience, not recruited for the skillset and
understanding of the survivor cohort that will be required of Independent
Decision Makers. The Administrative Appeals Tribunal must make a legally
correct or preferable decision, while Independent Decision Makers will make
decisions on applications with highly variable levels of detail and without
strict legislative guidance on what weight should be applied to the information
they do receive. Without an understanding of past decisions under the Scheme,
the Tribunal may reach decisions that are inconsistent with past decisions made
by Independent Decision Makers. Utilising the Administrative Appeals Tribunal
for merits review under the Scheme risks inappropriately imposing a legalistic
lens on a non-legalistic decision making process.
2.187
The minister's response provides useful information as to the rationale
for excluding external merits review and the proposed operation of the internal
review scheme with Independent Decision Makers. Having regard to this
information and the particular context in which the review scheme operates, the
internal review mechanism may be capable of ensuring that survivors have
adequate opportunities to have their rights and obligations determined in a
manner that is compatible with the right to a fair hearing. It is also noted
that the consequential amendments bill, which removes judicial review under the
ADJR Act, does not appear to preclude judicial review under section 75(v) of
the Constitution and section 39B of the Judiciary Act 1903. However,
noting that it is difficult to determine how, and the extent to which, the internal
review mechanism may impact on the right to a fair hearing until it is in
operation, it is recommended that the mechanism be monitored to ensure that the
review mechanism operates in such a way as to ensure that survivors have
sufficient opportunities to have their rights and obligations determined by an
independent and impartial tribunal.
Committee response
2.188
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.189
Having regard to this information and the particular context in which
the review scheme operates, the internal review mechanism may be capable of
ensuring that survivors have adequate opportunities to have their rights and
obligations determined in a manner that is compatible with the right to a fair
hearing. However, the committee recommends that the operation of the internal
review mechanism be monitored to ensure that survivors have sufficient
opportunities to have their rights and obligations determined by an independent
and impartial tribunal.
Fair Work Laws Amendment (Proper Use of Worker Benefits) Bill 2017
Purpose |
Amends the Fair Work Act
2009 to: prohibit terms of a modern award or an enterprise agreement
requiring or permitting contributions for the benefit of an employee to be
made to any fund other than a superannuation fund, a registered worker
entitlement fund or a registered charity; prohibit any term of a modern
award, enterprise agreement or contract of employment permitting or requiring
employee contributions to an election fund for an industrial association; and
prohibit any action with the intent to coerce an employer to pay amounts to a
particular worker entitlement fund, superannuation fund, training fund,
welfare fund or employee insurance scheme. Amends the Fair Work
(Registered Organisations) Act 2009 to: require registered organisations
to adopt, and periodically review, financial management policies; require
registered organisations to keep credit card records and report certain
loans, grants and donations; require specific disclosure by registered
organisations and employers of the financial benefits obtained by them and
persons linked to them in connection with employee insurance products,
welfare fund arrangements and training fund arrangements; and introduce a
range of new penalties relating to compliance with financial management,
disclosure and reporting requirements |
Portfolio |
Employment |
Introduced |
House of Representatives,
19 October 2017 |
Rights |
Freedom of association;
collectively bargain (see Appendix 2) |
Previous reports |
12 of 2017 and 1 of 2018 |
Status |
Concluded examination |
Background
2.190
The committee first reported on the Fair Work Laws Amendment (Proper Use
of Worker Benefits) Bill 2017 (the bill) in its Report 12 of 2017, and
requested a response from the Minister for Employment by 13 December 2017.[94]
2.191
The minister's response to the committee's inquiries was received on
19 December 2017 and discussed in Report 1 of 2018.[95]
2.192
The committee requested a second response from the minister by
8 February 2018, specifically in relation to prohibiting terms of industrial
agreements requiring or permitting payments to worker entitlement funds and the
right to collectively bargain. The committee also welcomed any additional
comments in relation to any other matter relevant to its consideration of the
bill. A response from the Minister for Small and Family Business, the
Workplace and Deregulation was received on 8 February 2018. The response is
discussed below and is reproduced in full at Appendix 3. The response
addressed the committee's specific request and did not provide further comments
more generally in relation to the bill.
Prohibiting terms of industrial agreements requiring or permitting payments
to worker entitlement funds
2.193
Schedule 2 of the bill would amend the Fair Work Act 2009 (Fair
Work Act) to prohibit any term of a modern award or an enterprise agreement
requiring or permitting contributions for the benefit of an employee to be made
to any fund other than a superannuation fund, a registered worker entitlement
fund or a registered charity.[96]
Compatibility of the measure with
the right to freedom of association and the right to just and favourable
conditions at work
2.194
The right to freedom of association includes the right to collectively
bargain without unreasonable and disproportionate interference from the state.
The right to just and favourable conditions of work includes the right to safe
working conditions. These rights are protected by the International Covenant on
Civil and Political Rights (ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR).[97]
2.195
The interpretation of these rights is informed by International Labour
Organization (ILO) treaties, including the ILO Convention of 1948 concerning
Freedom of Association and Protection of the Right to Organise (ILO Convention
No. 87) and the ILO Convention of 1949 concerning the Right to Organise
and Collective Bargaining (ILO Convention No. 98), which protects the right of
employees to collectively bargain for terms and conditions of employment.[98] The principle
of 'autonomy of bargaining' in the negotiation of collective agreements is an
'essential element' of Article 4 of ILO Convention No. 98 which envisages
that parties will be free to reach their own settlement of a collective
agreement without interference.[99]
2.196
Prohibiting the inclusion of particular terms in an enterprise agreement
interferes with the outcomes of the bargaining process. Accordingly, the
initial human rights analysis stated that the measure engages and may limit the
right to just and favourable conditions of work and the right to collectively
bargain as an aspect of the right to freedom of association.
2.197
Measures limiting the right to freedom of association including the
right to collectively bargain may be permissible providing certain criteria are
satisfied. Generally, to be capable of justifying a limit on human rights, the
measure must address a legitimate objective, be rationally connected to that
objective and be a proportionate way to achieve that objective.[100] Further, Article 22(3) of the ICCPR and article 8 of the ICESCR expressly
provide that no limitations are permissible on this right if they are
inconsistent with the guarantees of freedom of association and the right to
collectively organise contained in the ILO Convention No. 87.
2.198
The ILO's Committee on Freedom of Association (CFA Committee), which is
a supervisory mechanism that examines complaints about violations of the right
to freedom of association and the right to collectively bargain, has stated
that 'measures taken unilaterally by the authorities to restrict the scope of
negotiable issues are often incompatible with Convention No. 98'.[101] The CFA
Committee has noted that there are some circumstances in which it might be
legitimate for a government to limit the outcomes of a bargaining process, stating
that 'any limitation on collective bargaining on the part of the authorities
should be preceded by consultations with the workers' and employers'
organizations in an effort to obtain their agreement'.[102]
2.199
Indeed, international supervisory mechanisms have previously raised
specific concerns in relation to current restrictions imposed on bargaining
outcomes under Australian domestic law.[103] In relation to restrictions on the scope of collective bargaining and
bargaining outcomes, CFA Committee noted that:
...the right to bargain freely with employers with respect to
conditions of work constitutes an essential element in freedom of association,
and trade unions should have the right, through collective bargaining or other
lawful means, to seek to improve the living and working conditions of those
whom the trade unions represent. The public authorities should refrain from any
interference, which would restrict this right or impede the lawful exercise
thereof. Any such interference would appear to infringe the principle that
workers' and employers' organizations should have the right to organize their
activities and to formulate their programmes.[104]
2.200
In this respect the statement of compatibility acknowledges that the
measure engages the right to freedom of association, the right to voluntarily
reach bargaining outcomes, and the right to just and favourable conditions at
work. However, the statement of compatibility asserts that the limitation on
these rights is permissible. It states that the measure pursues the legitimate
objectives of addressing 'the potential for misappropriation of funds and [to]
avoid conflicts of interest and possible coercion'.[105] It points to the Final Report of the Royal Commission into Trade Union
Governance and Corruption (Heydon Royal Commission) in support of this
objective.[106] While the stated objectives may be capable of constituting a legitimate
objective for the purposes of international human rights law, the initial
analysis noted that it would have been useful if the statement of compatibility
had more fully explained how any findings from the Heydon Royal Commission
supported the importance of this objective as a substantial or pressing
concern.
2.201
The statement of compatibility provides some information as to whether
the measure is rationally connected to (that is, effective to achieve) its
stated objectives. It notes that the measure does not prohibit contributions to
worker entitlement funds but requires any contributions 'to be made to
registered worker entitlement funds that are subject to basic governance and
disclosure requirements designed to address potential conflicts of interest,
breaches of fiduciary duty and the potential for coercion'.[107] As such the measure would appear to be rationally connected to its stated
objective.
2.202
However, the statement of compatibility provides limited information as
to whether the limitation is proportionate. In order to be a proportionate
limitation on human rights a measure must be the least rights restrictive way
of achieving its stated objective.
2.203
Accordingly, the committee sought the advice of the Minister for
Employment as to:
- whether the limitation is a reasonable and proportionate measure
to achieve that objective (including findings by relevant international
supervisory mechanisms about whether the limitation is permissible); and
- whether consultation has occurred with the relevant workers' and
employers' organisations in relation to the measure.
Minister's first response
2.204
The minister's first response described the current restrictions on
bargaining outcomes imposed by the Fair Work Act and restates the scope of the
new restrictions. The minister's response noted that the committee's initial
report stated that the limitation imposed by the measure appeared to be
rationally connected to its stated objective.
2.205
In relation to whether the limitation is reasonable and proportionate to
achieve the stated objective, the minister's response stated:
Any worker entitlement fund, including those controlled by
any industrial association, can be registered provided it meets basic
governance and disclosure requirements. These requirements are designed to
address potential conflicts of interest, breaches of fiduciary duty and
coercive conduct. There is no restriction on who can be a member of a fund. The
provisions enhance the right to just and favourable conditions of work by
ensuring that money held by worker entitlement funds is used to benefit
workers. The amendments will provide employees with a guarantee that any
contributions they voluntarily make to a worker entitlement fund is subject to
appropriate scrutiny and oversight.
To the extent that the prohibition may engage any of these
rights, the measure is reasonable and proportionate and enhances workers'
rights by ensuring that money held on their behalf is protected. The amendments
are the least rights restrictive possible in that they do not represent an
unqualified prohibition on terms of industrial agreements that provide for
contributions to worker entitlement funds. Rather, they require such contributions
to be made to registered worker entitlement funds that are subject to basic
governance and disclosure obligations.
The International Labour Organization (ILO) has stated that
'Restrictions on [the] principle [of leaving the greatest possible autonomy to
organizations in their functioning and administration] should have the sole
objective of protecting the interests of members'.
To the extent the proposed provisions may engage with these
rights they do so only to protect the rights of workers by ensuring that their
money is properly managed and their interests protected.
The provisions support the basic governance and disclosure
requirements of the Bill that are designed to address potential conflicts of
interest, breaches of fiduciary duty and potential for coercive conduct that
were found by the Royal Commission into Trade Union Governance and Corruption
(Royal Commission) in examining the operation in Australia of worker
entitlement funds. As such, the amendment protects the interests of workers.
2.206
The minister's response provided a range of information about the scope
of the limitation on bargaining outcomes. In this respect, it is relevant to
the proportionality of the measure that it will still be possible to negotiate
clauses in enterprise agreements which require or permit payments to be made to
registered workers' entitlement funds, superannuation funds or charities.
However, prohibiting any term of an enterprise agreement that otherwise
requires or permits contributions for the benefit of an employee may still have
significant effects on voluntarily negotiated outcomes.
2.207
As discussed further below, there are a range of restrictions on
registered worker entitlement funds and who can operate them. Under the
proposed bill, registered organisations including unions are prohibited from
operating registered workers' entitlement funds and there are restrictions on
how funds can be spent. This means that, for example, even if an employer and
employees agreed through an enterprise agreement to set up an occupational
health and safety training fund to be administered and run by the relevant
union, this would not be permissible. It was unclear from the minister's
response how prohibiting this kind of voluntarily negotiated clause in general
is the least rights restrictive approach to achieving the stated objective.
Further, while the minister's response referred to ILO comments about when it
may be legitimate to limit particular rights, it did not address the specific
concerns raised by international monitoring bodies in relation to Australia's
restrictions on bargaining outcomes through prohibiting particular matters in
enterprise agreements (discussed at [2.199] above). In light of the concerns
raised by these international monitoring bodies as to the existing restrictions
on bargaining outcomes in Australia, it is likely that any amendments which
further restrict such matters would also raise concerns.
2.208
Finally, the minister's response outlined consultation which occurred
with worker entitlement funds and employee and employer organisations prior to
introduction. Consultation processes are relevant to an assessment of the
measure, and may assist in determining whether a limitation is the least rights
restrictive means of pursuing a legitimate objective on the available evidence.
However, the fact of consultation alone is not sufficient to address the human
rights concerns in relation to the measure.
2.209
The committee considered that,
in the absence of additional information addressing these concerns, prohibiting
terms of industrial agreements that require or permit payments to worker
entitlement funds is likely to be incompatible with the right to collectively
bargain.
2.210
The committee therefore sought
further advice from the minister in relation to the compatibility of the
measure with the right to collectively bargain, in particular any information
in light of findings by relevant international supervisory mechanisms.
Minister's second response
2.211
The Minister for Small and Family Business, the Workplace and
Deregulation provided the following information in relation to the committee's
inquiries:
A detailed response to issues raised in Human Rights Scrutiny
Report No. 12 of 2017 in relation to the Bill was provided to the Committee by
the office of Senator the Hon Michaelia Cash, then Minister for Employment, on
19 December 2017. That response addressed the proposed prohibition on
industrial instruments requiring or permitting payments to unregistered worker
entitlement funds, noting that while the prohibition engages the right to
collectively bargain, it does so in a manner that is reasonable and
proportionate and enhances workers' rights.
The Bill prohibits terms in industrial agreements that
require or permit payments only to unregistered worker entitlement funds.
Registered worker entitlement funds will be required to comply with basic
governance and disclosure requirements. The prohibition on payments to
unregistered worker entitlement funds is simply a mechanism to ensure that such
funds are properly regulated, subject to appropriate minimum governance
requirements and comply with laws similar to those that apply to other managed
investment schemes.
Findings from two Royal Commissions have emphasised the
importance of properly regulating worker entitlement funds, particularly given
the significant sums of money held by these funds for the benefit of workers,
and the consequences that would follow if a fund was to fail.
Most recently, the 2016 report of the Royal Commission into
Trade Union Governance and Corruption (2016 Royal Commission) recommended that
legislation be enacted dealing comprehensively with the minimum governance,
financial reporting and financial disclosures for worker entitlement funds.
This Bill implements that recommendation.
As noted in the previous response of 19 December 2017, the
International Labour Organisation (ILO) has stated that 'Restrictions on [the]
principle [of leaving the greatest possible autonomy to organizations in their
functioning and administration] should have the sole objective of protecting
the interests of members'. It is considered that the 'functioning' of
organisations includes their ability to collectively bargain, such that any
restriction on collective bargaining should have the sole objective of
protecting the interests of members.
A prohibition on industrial instruments requiring or
permitting payments to unregistered worker entitlement funds is intended to
protect the interests of members of organisations by ensuring that such
payments may only be made to worker entitlement funds that are registered. A
worker entitlement fund can be registered provided it meets basic governance
and disclosure requirements. These requirements are designed to address
potential conflicts of interest, breaches of fiduciary duty and coercive
conduct. The provisions in the Bill ensure that money held by worker
entitlement funds is used to benefit workers. The amendments will provide
members with a guarantee that any contributions made to a worker entitlement
fund is subject to appropriate scrutiny and oversight.
In addition, the ILO considers that there are some exceptions
to the general rule that measures taken to restrict the scope of negotiable
issues are generally considered to be incompatible with international labour
standards. These include 'the prohibition of certain subjects for reasons of
public order'. Further, Article 4 of the ILO Right to Organize and Collective
Bargaining Convention 1949 (No. 98) specifies that the machinery for voluntary
negotiation of terms and conditions of employment should be 'appropriate to
national conditions'.
Given that the prohibition supports the basic governance and
disclosure requirements of the Bill that are intended to address potential
conflicts of interest, breaches of fiduciary duty and potential for coercive
conduct outlined in the 2016 Royal Commission, in addition to protecting the
interests of workers and supporting public order, it is appropriate to
Australian conditions and so is permissible.
2.212
The minister's second response provides a range of further information
to address the committee's inquiry. The information provided further
demonstrates that the stated objective of protecting the rights and interests
of members is likely to constitute a legitimate objective for the purposes of
international human rights law. The minister's response shows that the measure
is rationally connected to this objective by restricting payments to registered
worker entitlement funds which are subject to regulation.
2.213
With reference to international supervisory mechanisms, the minister is
correct to note there are exceptions to the general rule that measures taken
unilaterally to restrict the scope of negotiable outcomes will generally be
incompatible with the right to collectively bargain. However, concerns remain
as to the proportionality of these proposed measures in light of international
jurisprudence.
2.214
While the minister's response explains that negotiation on certain
subjects may be prohibited for reasons of public order, it is unclear how this
particular measure relates to issues of public order. Further, even if the
measure did address this issue, as set out at [2.207] above, it is unclear how
prohibiting voluntarily negotiated clauses in general which require or permit
contributions for the benefit of an employee (other than a superannuation fund,
a registered worker entitlement fund or a registered charity) is the least
rights restrictive approach to achieving the stated objective.
2.215
The minister's response further points to the terms of article 4 of ILO
Convention No. 98 as a basis for how the measure is permissible. Article 4
relevantly provides that:
Measures appropriate to national conditions shall be
taken, where necessary, to encourage and promote the full development and
utilisation of machinery for voluntary negotiation between employers or
employers' organisations and workers' organisations, with a view to the
regulation of terms and conditions of employment by means of collective
agreements (emphasis added).
2.216
The minister's response appears to argue, drawing upon article 4, that
the measure is appropriate to Australian conditions and so is permissible. However,
the fact that a measure may (or may not) be appropriate to national conditions
does not mean that they are necessarily permissible limitations on the right to
collectively bargain under international law. Indeed, the 'measures appropriate
to national conditions' referred to in article 4 are focused on those that are
necessary to encourage and promote voluntary negotiation. That
is, the term 'national conditions' operates not as an exception to obligations
but is rather an acknowledgement that measures taken to fulfil article 4 need
to take national conditions into account. By contrast, in this case, by
prohibiting the inclusion of particular terms in an enterprise agreement, the
measure interferes with voluntarily negotiated outcomes and thereby limits the
right to collectively bargain.
2.217
Additionally, the minister's response did not address the committee's
request for comment on the specific concerns raised by international monitoring
bodies concerning Australia's restrictions on bargaining outcomes through
prohibiting particular matters in enterprise agreements (discussed at [2.199]
above). As noted previously, in light of the concerns raised by these
international monitoring bodies as to the existing restrictions on bargaining
outcomes in Australia, it is likely that any measures, such as this one (which
further restrict such matters) would also raise concerns.
Committee response
2.218
The committee thanks the minister for his response and has
concluded its examination of this issue. The committee acknowledges that the
response was requested and received within a short timeframe.
2.219
The International Labour Organization's Committee on Freedom of Association
has raised concerns in relation to Australia's restrictions on bargaining
outcomes through prohibiting particular matters in enterprise agreements. The
provisions introduced by the bill prohibiting terms of industrial agreements
that require or permit payments to worker entitlement funds is a further
restriction on bargaining outcomes.
2.220
Based on the information provided and the above analysis, prohibiting
terms of industrial agreements that require or permit payments to worker
entitlement funds is likely to be incompatible with the right to collectively
bargain.
Regulation of worker entitlement funds
2.221
Schedule 2 of the bill would require 'worker entitlement funds' to meet
requirements for registration and meet certain conditions relating to financial
management, board composition, disclosure and how money is spent. A 'worker
entitlement fund' is defined in proposed section 329HC of the Fair Work
(Registered Organisations) Act 2009 (Registered Organisations Act) as a
fund whose purposes include paying worker entitlements to members, dependents
or legal representatives of fund members or a fund prescribed by the minister.
2.222
Under proposed new section 329LA of the Registered Organisations Act a
'worker entitlement fund' will only be able to be operated by a corporation and
cannot be operated by a registered organisation (that is, a trade union or
employer organisation.) Under proposed sections 329JA-B of the Registered
Organisations Act it will be an offence to operate an unregistered fund and a
civil penalty provision for employers to contribute to such a fund.
Compatibility of the measure with
the right to freedom of association and the right to just and favourable
conditions at work
2.223
As described above, the interpretation of the right to freedom of
association and the right to just and favourable conditions of work is informed
by the ILO treaties.[108] ILO Convention 87 specifically protects the right of workers to autonomy of
union processes, organising their administration and activities and formulating
their own programs without interference.[109] Providing that registered organisations cannot administer 'worker entitlement
funds' and limiting the purposes for which such money may be used appears to
engage and limit these rights. However, the statement of compatibility does not
acknowledge this limitation so does not provide an assessment of whether the
limitation is permissible as a matter of international human rights law.[110]
2.224
The committee therefore requested the further advice of the minister as
to:
- whether the measure is aimed at pursuing a legitimate objective
for the purposes of international human rights law;
- how the measure is effective to achieve (that is, rationally
connected to) its stated objective; and
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective (including whether the measure is the least
rights restrictive way of achieving its stated objective).
Minister's first response
2.225
The minister's first response explained the scope of current provisions
and proposed amendments:
Current provisions
An ASIC class order currently exempts worker entitlement
funds from regulation under the Corporations Act 2001.
Contributions to 'approved worker entitlement funds' under
the Fringe Benefits Tax Assessment Act 1986 (FBTA Act 1986) are exempt
from fringe benefits tax. Funds can be approved if they meet certain minimum
criteria, largely concerned with how fund money can be spent. This imposes a
degree of indirect regulation on these funds.
Changes proposed through the Bill
The Bill will amend the Fair Work (Registered
Organisations) Act 2009 (RO Act) to insert new Part 3C of Chapter 11 to
apply governance, financial reporting and financial disclosure requirements to
worker entitlement funds. As noted by the Committee, Schedule 2 of the Bill
would require worker entitlement funds to meet requirements for registration
and meet certain conditions relating to financial management, board
composition, disclosure and how money is spent. These conditions include that a
worker entitlement fund will only be able to be operated by a corporation and
cannot be operated by a registered organisation (proposed new section 329LA
condition 2).
2.226
The minister also provided a range of information as to whether the
limitation on human rights imposed by the measure is permissible. In relation
to whether the measure is aimed at pursuing a legitimate objective for the
purposes of international human rights law, the minister's response stated:
The objective of the Bill in relation to the administration
of worker entitlement funds and limiting the purposes for which worker
entitlement fund income and contributions can be used is to ensure that
workers' entitlements are managed responsibly and transparently and in their
interests. Funds will have to be run by trained professionals of good fame and
character and fund money will be restricted from being re-characterised and
spent for unauthorised purposes. These measures are intended to prohibit what
the Royal Commission found were substantial payments flowing out of worker
entitlement funds to other parties for purposes other than paying members.
2.227
This would appear to be a legitimate objective for the purposes of
international human rights law.
2.228
As to how the measure is effective to achieve the stated objective, the
minister's response stated:
Requiring the registration of worker entitlement funds and
placing conditions on that registration are measures that are rationally
connected to the objective of ensuring that workers' entitlements are managed
responsibly and transparently in their interests.
Requiring a fund operator to be a constitutional corporation
is necessary to ensure that the provisions regulating such funds are valid. A
similar requirement applies to superannuation funds under the Superannuation
Industry (Supervision) Act 1993.
2.229
This information indicates that the regulation of worker entitlement
funds is likely to be rationally connected to the stated objective of the
measure.
2.230
The requirement that registered workers' entitlement funds cannot be
operated by a registered organisation such as a trade union or employers'
organisation raised questions in relation to the proportionality of the
limitation. In this respect the minister's response explained that:
Requiring that a fund operator cannot be an organisation is
designed to prevent conflicts of interest for worker entitlement funds that
also make substantial payments to those organisations for purposes other than
paying members worker entitlements.
In this respect, the Royal Commission stated that:
The very substantial revenue flows
to unions generate significant conflicts of interest and potential breaches of
fiduciary duty on the part of unions and union officials negotiating enterprise
agreements ... In short, the union and union officials owe a duty to act in the
interests of union member employees when negotiating enterprise agreements. At
the same time, there is a significant potential and incentive for the union to
act in its own interests to generate revenue.
The worker entitlement fund, Incolink, provides an example of
the substantial revenue that flows to unions and employer groups. Between 2011
and 2015, the Construction, Forestry, Mining and Energy Union (CFMEU), the
Master Builders Association of Victoria and the Plumbing Joint Training Fund
together received over $85 million from Incolink. These organisations are all
represented on the board of lncolink.
In addition, none of the existing worker entitlement funds
that are approved under the FBTA Act 1986 are operated by registered
organisations; most worker entitlement funds are run by corporations with a mix
of representatives from employer and employee associations on their boards. The
Bill does not alter this position. Officers of registered organisations can
still sit on the board of worker entitlement funds.
2.231
The minister's response articulated that there is a potential for
conflicts of interest in relation to the administration of such funds as well
as the potentially large sums of money involved. It is also relevant to the
proportionality of the measure that none of the funds registered under the
existing FBTA Act are operated by registered organisations. However, it was
unclear whether there are funds that are not registered under the FBTA Act
which are currently administered by registered organisations. Accordingly,
based on the information provided there is some uncertainty as to the potential
impact of the measure. The measure may still therefore be a significant
limitation on the right for a union to organise its internal affairs and
formulate its own program. For example, notwithstanding the issues raised in
the minister's response, it may be the preference of some union members that
money paid for their benefit is administered by their union.
2.232
The minister's response further stated, in relation to whether the
measure is proportionate to achieve its stated objective, that:
The Bill also retains the existing legal limits on how
contributions and income of a fund can be spent under the FBTA Act 1986.
To the extent that these measures may limit human rights, any
limitation is reasonable and proportionate in achieving the objectives of the
Bill. Commensurate with this, the measures are the least rights restrictive as
they do not prevent contributions to worker entitlement funds but provide
appropriate governance and transparency to ensure that workers' entitlements
are managed responsibly and transparently in their interests. They also take
into account the feedback provided by funds during consultation, including to
allow funds to use income to pay for training and welfare services, subject to
appropriate criteria, and the provision of a separate regulatory scheme for
single employer worker entitlement funds.
2.233
While noting that contributions will still be able to be made to
registered workers' entitlement funds, it was unclear from the information
provided that this necessarily means that the measure is the least rights
restrictive approach. It was unclear from the response whether there are any
other reasonably available less rights restrictive alternatives to prohibiting
registered organisations from operating such funds in general. Accordingly, it
was uncertain whether the measure constitutes a proportionate limitation on the
right to freedom of association.
2.234
Based on the information provided and the above analysis, the committee
was unable to conclude that the measure is a proportionate limitation on the
right to freedom of association and the right to just and favourable conditions
at work.
Prohibiting terms of industrial instruments requiring payments to election
funds
2.235
Schedule 3 of the bill would amend the Fair Work Act to prohibit any
term of a modern award, enterprise agreement or contract of employment
permitting or requiring employee contributions to an election fund.[111]
Compatibility of the measure with the right to freedom
of association and the right to just and favourable conditions at work
2.236
As set out above, the right to freedom of association includes the right
to collectively bargain without unreasonable and disproportionate interference
from the state. Prohibiting the inclusion of particular terms in an enterprise
agreement interferes with the outcomes of the bargaining process. Accordingly,
the initial analysis stated that the measure engages and limits the right to
just and favourable conditions of work and the right to collectively bargain as
an aspect of the right to freedom of association. The statement of
compatibility acknowledges that the measure engages the right to negotiate
terms and conditions of employment voluntarily.[112] However, the statement of compatibility appears to indicate that the limitation
is permissible.
2.237
The statement of compatibility identifies one objective of the measure
as being to 'remove any legal or practical compulsion on an employee to
contribute to election funds'.[113] This appears to be a description of what the measure does rather than
articulating the pressing or substantial concern the measure addresses as
required to constitute a legitimate objective for the purposes of international
human rights law. The statement of compatibility identifies a second objective
as addressing 'the possibility of contributions made in accordance with a
relevant instrument being used to avoid the intent of the prohibition on
organisations using their resources to favour a particular candidate'. While
this could be capable of constituting a legitimate objective, limited
explanation or reasoning is provided as to why this objective is important.
Further, in relation to whether the measure is rationally connected (that is,
effective to achieve) and proportionate to the stated objectives, the statement
of compatibility provides no reasoning or evidence and only asserts that the
measure 'is reasonable, necessary and proportionate'.[114]
2.238
The committee therefore requested the further advice of the minister as
to:
- whether there is reasoning or evidence that establishes that the
stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
how the measure is effective to achieve (that is, rationally
connected to) its stated objective; and
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective (including whether the measure is the least
rights restrictive way of achieving its stated objective).
Minister's first response
2.239
The minister's first response provided the following information about
the proposed amendments:
Current provisions
There are currently no provisions in the FW Act or RO Act
that deal with terms of industrial instruments requiring or permitting
employees to pay into election funds. This is despite the fact that section 190
of the RO Act prohibits an organisation from using its resources for the
purposes of the election of a particular candidate. Because election funds are
structurally separate from the organisation, they are not captured by this
provision.
Changes proposed through the Bill
Schedule 3 of the Bill would amend section 194 of the FW Act
to prohibit any term of an enterprise agreement or contract of employment
requiring or permitting employee contributions for a regulated election
purpose.
Schedule 3 would also amend Part 2-9 of the FW Act to provide
that any term of a contract of employment requiring or permitting payments for
a regulated election purpose will have no effect.
A 'regulated election purpose' is one that includes the
purpose of funding, supporting or promoting the election of candidates for
election to office in an industrial association.
2.240
The minister's response provided some further information about whether
the limitation on human rights was permissible. In relation to whether the
measure addresses a substantial or pressing concern, the minister's response
explained:
Election funds are established to fund election campaigns for
office within registered organisations and are regularly sourced from
contributions from employees of such organisations. These funds are usually
managed by one or more individuals who hold elected office within the
organisation. They are not established in the interests of workers who are
subject to the collective agreement but rather the interests of officials of
the bargaining representative. The Royal Commission found that such
arrangements unfairly disadvantage candidates who are not already in office and
have been misused by officials controlling the funds where there are no
contested elections. The Royal Commission also found a lack of oversight of
election funds, with information about revenue and expenditure sometimes
hidden, or not kept at all.
The amendments remove any legal or practical compulsion on
employees to contribute to a particular election fund. They ensure employees
have a choice about whether to contribute to the particular fund.
2.241
Based on this information, ensuring that non-incumbent candidates for
elected union positions are not disadvantaged and that employees have a free
choice about whether to contribute to a particular fund in the particular
circumstances, would appear to constitute legitimate objectives for the
purposes of international human rights law. The measures would also appear to
be rationally connected to these objectives.
2.242
In relation to whether the measure is reasonable and proportionate, the
minister's response states that registered organisation employees will still be
able to make genuine contributions, voluntarily and independently of an
industrial instrument. On balance, this would appear to be a proportionate
limitation on bargaining outcomes.
2.243
The committee therefore noted that the measure appears to be compatible
with the right to freedom of association and the right to just and favourable
conditions of work.
Prohibiting any action with the intent to coerce a person or employer to
pay amounts to a particular fund
2.244
Schedule 4 of the bill would introduce a civil penalty into section 355A
of the Fair Work Act prohibiting a person from organising, taking or
threatening to take any action, other than protected industrial action, with
the intent to coerce a person to pay amounts to a particular worker entitlement
fund, super fund, training fund, welfare fund or employee insurance scheme.[115]
Compatibility of the measure with
the right to freedom of association
2.245
The right to strike is protected as an aspect of the right to freedom of
association and the right to form and join trade unions under article 8 of
ICESCR. The right to strike, however, is not absolute and may be limited in
certain circumstances.
2.246
By prohibiting action (other than protected industrial action) intended
to coerce a person to pay amounts into a particular fund, the initial analysis
assessed that the measure further engages and limits the right to strike. This
is because it may impose an additional penalty or disincentive to taking
unprotected industrial action with the intent of influencing the conduct of an
employer. The existing restrictions on taking industrial action under
Australian domestic law have been consistently criticised by international
supervisory mechanisms as going beyond what is permissible.[116] While the statement of
compatibility acknowledges that the measure engages work-related rights it does
not expressly acknowledge that the right to strike is an aspect of the right to
freedom of association.
2.247
Beyond providing a description of the measure, the statement of
compatibility does not identify the legitimate objective of the measure. While
the statement of compatibility appears to argue that the measure in fact
supports freedom of association and human rights, it provides no explanation of
the reasoning for this.[117] The statement of compatibility therefore does not meet the standards outlined
in the committee's Guidance Note 1, which require that where a
limitation on a right is proposed the statement of compatibility provide a
reasoned and evidence-based assessment of how the measure pursues a legitimate
objective, is rationally connected to that objective, and is proportionate.
2.248
The committee therefore requested the further advice of the minister as
to:
- whether the measure is aimed at achieving a legitimate objective
for the purposes of international human rights law;
- how the measure is effective to achieve (that is, rationally
connected to) that objective; and
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective (including any relevant safeguards and whether
the measure is the least rights restrictive way of achieving its stated
objective).
Minister's first response
2.249
The minister's first response provided the following information about
the proposed amendments:
Current provisions
Part 3-1 of the FW Act provides for general workplace
protections. It contains specific prohibitions against coercive behaviour in
relation to workplace rights (section 343) and industrial activities (348).
However, the Part does not specifically prohibit coercive action in relation to
the making [of] payments to certain funds, particularly where such action
occurs outside of the enterprise bargaining process. These funds include
superannuation funds, training and welfare funds, worker entitlement funds and
insurance arrangements and are collectively referred to by the Royal Commission
as 'worker benefit funds'.
Changes proposed through the Bill
Schedule 4 of the Bill would amend Part 3-1 of the FW Act to
insert a new section 355A to prohibit a person from taking coercive action in
relation to the making of payments to a particular worker benefit fund. This
would fix an existing gap in the Act, which prohibits coercion in relation to a
wide range of other conduct, but not in relation to contributions to funds.
2.250
In relation to the current law, the minister's response stated that
'compelling contributions to a particular worker benefit fund infringes basic
principles of freedom of association and, by prohibiting mandatory
contributions, the amendment is in fact promoting human rights'. However, the
response did not specifically explain how 'compelling' a contribution through,
for example, protest or strike action would 'infringe' principles of freedom of
association or promote human rights. As noted in the initial analysis, the
measure, by prohibiting action (other than protected industrial action)
intended to influence or 'coerce' a person to pay amounts into a particular
fund, the measure further engages and limits the right to strike. This is
because it may impose an additional penalty or disincentive to taking
unprotected industrial action with the intent of influencing the conduct of an
employer.
2.251
In relation to whether the measure imposes permissible limitations on
the right to strike, the minister's response stated that the measure pursues the
'legitimate objective of reducing the potential for coercive behaviour outside
the enterprise bargaining process, for example in side deals'. In this respect,
the minister's response discussed examples of pressure being applied to
employers, potential conflicts of interest and the findings of the Heydon Royal
Commission. While not articulated in this way in the minister's response, it
may be that the measure pursues the objective of providing protection for
employers or other people from particular forms of action. To the extent that
the measure is aimed at protecting the rights and freedoms of others this was
noted as being capable of constituting a legitimate objective for the purposes
of international human rights law.
2.252
The minister's response further noted that 'the Bill does not alter the
circumstances in which industrial action will be considered protected
industrial action, or the consequences provided for failures to comply with
Part 3-3 of the FW Act, dealing with industrial action'. However, as set out
above, the existing restrictions on taking industrial action under Australian
domestic law have been consistently criticised by international supervisory
mechanisms as going beyond what is permissible.[118] Such findings call into
serious question whether any further restrictions on the right to strike, such
as this one, are permissible. While the minister's response identified that the
measure addresses a gap in current restrictions, it did not explain how such
restrictions are proportionate in view of the stated objective including
whether they represent the least rights restrictive approach.
2.253
Accordingly, based on the information available, the measure did not
appear to be a proportionate limitation on the right to strike as an aspect of
the right to freedom of association.
Compatibility of the measure with
the right to freedom of assembly and expression
2.254
The right to freedom of assembly and the right to freedom of expression
are protected by articles 19 and 21 of the ICCPR. The right to freedom of
assembly and the right to freedom of expression may be limited for certain
prescribed purposes. That is, that the limitation is necessary to respect the
rights of others, to protect national security, public safety, public order,
public health or morals. Additionally, such limitations must be prescribed by
law, reasonable, necessary and proportionate to achieving the prescribed
purpose.
2.255
The initial analysis stated that it appears that the measure may extend
to prohibiting forms of expression or assembly. As such, it may engage and
limit the right to freedom of expression and assembly. The prohibition on forms
of protest action appears to be potentially quite broad. This issue was not
addressed in the statement of compatibility and as such it is unclear whether
the measure is compatible with these rights.
2.256
The committee therefore sought the advice of the minister as to:
-
the scope of any restriction on the right to freedom of
expression and assembly;
- whether the measure is aimed at achieving a legitimate objective
for the purposes of international human rights law;
- how the measure is effective to achieve (that is, rationally
connected to) its stated objective; and
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective (including whether the measure is sufficiently
circumscribed, any relevant safeguards and whether the measure is the least
rights restrictive way of achieving its stated objective).
Minister's first response
2.257
In relation to the right to freedom of assembly and the right to freedom
of expression, the minister's first response stated:
The Committee is also concerned that the measure
circumscribes the right to freedom of expression as set out in Article 19 of
the International Covenant on Civil and Political Rights (ICCPR) and the right
of peaceful assembly set out in Article 21 of the ICCPR. It is not clear how
the relevant rights are engaged as the measure does not interfere with an
individual's right to hold opinions without interference, the right to freedom
of expression or the freedom to seek, receive and impart information and ideas
of any kind or the right of peaceful assembly. In any event, the amendment
pursues the legitimate objective of ensuring that a person cannot coerce
another person to make payments into certain worker benefit funds and is
reasonable and proportionate.
2.258
The particular concern articulated in the initial human rights analysis
was that the prohibited forms of action may extend to forms of expression and
assembly. For example, protest activities outside of a workplace or a boycott
of goods that is aimed at influencing or 'coercing' a person to make payments
into a particular fund. It was noted in this respect that the right of freedom
of expression extends to the expression of ideas through a range of conduct
including speech and public protest. It would have been useful if the
minister's response provided an explanation of why she does not consider that
these rights were engaged and limited. There is also a question about the breadth
of the provision, noting it could potentially apply broadly beyond the
employer-employee relationship. As such, it was unclear whether the breadth of
this provision may be overly broad with respect to an objective, for example,
of protecting the rights and freedoms of others.
2.259
As the information provided to the committee did not include a
substantive assessment as to whether any limitation on the right to freedom of
expression and assembly is permissible, it was not possible to conclude that
the measure is proportionate.
Mr Ian Goodenough MP
Chair
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