1.1
This chapter provides assessments of the human rights compatibility of:
1.2
The committee has concluded its consideration of 12 bills and
instruments that were previously deferred.[3]
1.3
The committee has examined the legislative instruments registered in the
period identified above, as listed on the Federal Register of Legislation. Instruments
raising human rights concerns are identified in this chapter.
1.4
The committee has concluded that the remaining instruments do not raise
human rights concerns, either because they do not engage human rights, they
contain only justifiable (or marginal) limitations on human rights or because
they promote human rights and do not require additional comment.
1.5
The committee seeks a response or further information from the relevant minister
or legislation proponent with respect to the following bills and instruments.
1.6
The Anti-Money Laundering and Counter-Terrorism Financing Rules
Amendment Instrument 2017 (No. 4) [F2017L01678] (the instrument) allows the CEO
of the Australian Transaction Reports and Analysis Centre (AUSTRAC) to exempt
reporting entities from certain obligations under the Anti-Money Laundering
and Counter-Terrorism Financing Act 2006 (AML/CTF Act).
1.7
Section 75.2 of the instrument provides that, if a requesting officer[4] of an eligible agency[5] reasonably believes that providing a designated service to a customer would
assist the investigation of a serious offence,[6] the officer may request the AUSTRAC CEO to exempt specified reporting entities
from certain obligations under the AML/CTF Act. Section 75.3 provides that the
exemption in section 75.2 applies to the following provisions of the AML/CTF
Act:
1.8
Under the AML/CTF Act, designated services include (among other things)
dealings with accounts by financial institutions, the administration of trusts,
the supply of goods by way of lease or hire-purchase, and the guarantee of
loans.[7] A reporting entity is any person that provides a designated service.[8]
1.9
The right to a fair trial and fair hearing is protected by article 14 of
the International Covenant on Civil and Political Rights (ICCPR). Additional
guarantees in the determination of a criminal charge include the right to be
presumed innocent and the right not to incriminate oneself.[9] The right also encompasses
notions of the fair administration of justice and prohibits investigatory
techniques that incite individuals to commit a criminal offence.[10]
1.10
An exemption granted by the AUSTRAC CEO may engage the right to a fair
trial in this respect. This is because it is unclear whether exempting
reporting entities from compliance with obligations under the AML/CTF Act could
permit those entities (on behalf of a law enforcement officer) to encourage or
incite an individual to commit a criminal offence, or to provide incriminating
information that might later be relied upon in criminal proceedings. That is,
it is unclear whether the exemption could allow conduct which rises to the
level of entrapment for the purposes of international human rights law which
would constitute a limitation on the right to a fair trial.[11]
1.11
Limitations on human rights may be permissible where the measure pursues
a legitimate objective, is effective to achieve (that is, rationally connected to)
that objective, and is a proportionate means of achieving that objective.
1.12
The statement of compatibility for the instrument does not identify that
the right to a fair trial may be engaged and limited and does not explain
whether an exemption granted by the AUSTRAC CEO could be used to incite or
encourage the commission of an offence.[12] Accordingly, the statement of compatibility does not provide a substantive
assessment of whether any limitation on the right to a fair hearing and a fair
trial would be permissible.
1.13
However, in relation to the objective of the measure, the explanatory
statement nevertheless states:
1.14
Ensuring the effective investigation of serious offences is likely to
constitute a legitimate objective for the purposes of international human
rights law.
1.15
However, it is unclear from the information provided whether the measure
is rationally connected and proportionate to this objective. For example, in
relation to whether the measure is rationally connected, it is unclear how
compliance with the specific obligations listed in section 75.3 would operate
to undermine an investigation.
1.16
In relation to the proportionality of the measure, it is unclear whether
there are adequate and effective safeguards to ensure that reporting entities
(on behalf of law enforcement officials or otherwise) are not able to incite or
encourage the commission of an offence, or to ensure that evidence obtained by
enticement is not relied upon in criminal or civil proceedings.
1.19
The measures in the Crimes Amendment
(National Disability Insurance Scheme – Worker Screening) Bill 2018 (the bill)
seek to create exceptions to Part VIIC of the Crimes Act 1914 (Crimes
Act) with respect to persons who work, or seek to work, with persons with
disability in the National Disability Insurance Scheme (NDIS). The effect of
these exceptions would be that the spent, quashed and pardoned convictions of
persons working or seeking to work with persons with disability under the NDIS
may be disclosed to and by, and taken into account by, Commonwealth, State and
Territory agencies for the purposes of assessing the person's suitability as a
disability worker.
1.20
The right to privacy encompasses
respect for informational privacy, including the right to respect for private
information and private life, particularly the storing, use and sharing of
personal information.
1.21
The measures engage the right to
privacy by enabling the disclosure, and the taking into account, of information
relating to a person's spent convictions, quashed convictions and convictions
for which the person has been pardoned.
1.22
The right to work in the
International Covenant on Economic, Social and Cultural Rights (ICESCR)
provides that everyone must be able to freely accept or choose their work, and
includes a right not to be unfairly deprived of work. The right to work further
requires that state parties to the ICESCR provide a system of protection
guaranteeing access to employment. This right must be made available in a
non-discriminatory manner.[14] The measures may engage the right to work, as individuals may be excluded from
employment with the NDIS on the basis of their criminal record.
1.23
These rights may be subject to
permissible limitations which are provided by law and are not arbitrary. In
order for a limitation not to be arbitrary, it must pursue a legitimate
objective and be rationally connected and proportionate to achieving that
objective.
1.24
The statement of compatibility
acknowledges that the measure engages and limits the right to privacy and the
right to work. However, the statement also argues that these limitations are
permissible as they are reasonable to protect people with disability.[15]
1.25
The statement of compatibility
further states that 'the paramount objective of the bill is to protect people
with a disability from experiencing harm arising from unsafe supports or
services under the NDIS'.[16] This appears to be a legitimate objective for the purposes of international
human rights law. In this respect, it is noted that the measures are directed
at promoting the rights of persons with disabilities—consistent with
Australia's obligations under the Convention on the Rights of Persons with a
Disability—by ensuring that the supports and services provided through the NDIS
are delivered by a suitable workforce.[17]
1.26
Including additional information
regarding spent, quashed and pardoned convictions may enable worker screening
units to accurately assess a person's suitability as a disability support
worker, and in this respect the measure also appears to be rationally connected
to this objective.
1.27
However, there are questions about
whether the measures in the bill constitute a proportionate limit on the right
to privacy and the right to work in this instance. In relation to the
proportionality of the measure, the statement of compatibility states:
1.28
It is acknowledged that, in some
circumstances, it may be appropriate to permit the disclosure, or the taking
into account, of a person’s criminal history information so as to properly
assess whether a person poses an unacceptable risk of harm, including when
persons work with vulnerable people. In order to be a proportionate limitation
on human rights, such limitations must be sufficiently circumscribed and only
be as extensive as is strictly necessary to achieve their legitimate
objectives.
1.29
In this instance, there are
questions as to whether the breadth of the measure is greater than necessary to
achieve the stated objectives. The measure appears to permit the
disclosure, and the taking into account, of a person’s entire criminal record,
including minor convictions (for example, shoplifting), regardless of whether
those criminal convictions bear any relevance to the person's capacity to
perform the job or indicate that the person poses an unacceptable risk.
1.30
In this respect, jurisprudence
concerning the right to privacy in the United Kingdom has held that legislation
requiring the disclosure of a person’s entire criminal history may be
incompatible with the right to privacy where disclosure of such information is
not determined by reference to whether it is relevant to the legitimate purpose
of enabling employers to assess the suitability of an individual for a
particular kind of work.[19] This raises questions as to whether there may be other, less rights-restrictive
alternatives available, such as only requiring disclosure of serious offences
or offences that are relevant to a person's suitability as a disability worker.
1.31
Additionally, it is unclear why it
is necessary to permit the disclosure and the taking into account of spent and
quashed convictions, and wrongful convictions for which the person has been
pardoned. In the case of a wrongful conviction, for example, the person may be
factually and legally innocent of the offence with which they were charged. In
those circumstances, it is not clear how requiring persons to disclose this
criminal history is proportionate to the legitimate objectives.
1.32
Further, it is unclear whether
there are sufficient safeguards to ensure that the measure is a proportionate
limitation on human rights. The statement of compatibility recognises that ‘it
is critical that NDIS worker screening does not unreasonably exclude offenders
from working in the disability sector’.[20] The statement of compatibility further states:
1.33
The bill provides some safeguards
in relation to the persons who may disclose criminal history information and
take that information into account, and the persons to whom that information
may be disclosed. In particular, it is noted that criminal history information
may only be disclosed to or by, or taken into account by, prescribed persons
and bodies. Before a person or body is prescribed, the minister must be satisfied that the person or body
has a legislative basis for being prescribed, complies with the principles of
natural justice, and has a risk assessment framework and appropriately skilled
staff to assess risks to the safety of a person with disability.[22] However, the safeguards in the bill do not appear to limit the scope of the
criminal history information that may be disclosed or taken into account.
1.35
The right to equality and
non-discrimination provides that everyone is entitled to enjoy their rights
without discrimination of any kind, and that people are equal before the law
and are entitled without discrimination to the equal and non‑discriminatory
protection of the law.
1.36
'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).[23] The UN Human Rights Committee has described indirect discrimination as 'a rule
or measure that is neutral at face value or without intent to discriminate',
which exclusively or disproportionately affects people with a particular
personal attribute.[24]
1.37
The United Nations Human Rights
Committee has not considered whether having a criminal record constitutes
'other status'. However, relevantly, the European Court of Human Rights has
interpreted non-discrimination on the grounds of 'other status' to include an
obligation not to discriminate on the basis of a criminal record.[25] While this jurisprudence is not
binding on Australia, the case law from the Court is useful in considering
Australia's obligations in similar provisions in the International Covenant on
Civil and Political Rights (ICCPR).[26] Providing that certain
persons may disclose, and may take into account, information in relation to a
person's criminal history information for the purposes of worker screening for
the NDIS is likely to engage the right to equality and non-discrimination. This
is because persons may be excluded from employment with the NDIS on the basis
of their criminal record.
1.38
However, the statement of
compatibility does not recognise that the right to equality and
non-discrimination is engaged by the measure, and so does not provide a
substantive assessment of whether the measure constitutes a permissible
limitation on that right.
1.39
Under international human rights
law, differential treatment (including the differential effect of a measure that
is neutral on its face) 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.[27]
1.40
As outlined above, the objective
of the measure appears to be legitimate for the purposes of human rights law.
However, on the basis of the information provided, it is not apparent that the
measure is rationally connected and proportionate to that objective.
1.41
This is because the bill would
permit the disclosure and the taking into account of a person's entire criminal history, including information relating to convictions that may not be
relevant to a person's suitability as a disability worker in the NDIS, quashed
convictions, and convictions for which a person has been pardoned. Given that a
person's criminal history may not be relevant to their suitability as a
disability worker in the NDIS, it is unclear that taking such information into
account would be an effective means of achieving the legitimate objective.
There are also questions as to whether there are other, less rights
restrictive, alternatives available to achieve the objective. It is also
unclear whether there are adequate and effective safeguards to ensure that NDIS
screening units and prospective employers do not take into account irrelevant
matters when making decisions about excluding persons from employment.
1.43
The Export Control Bill 2017 (the bill) would impose conditions on the
export of some types of goods including requiring that: a person holds an
export licence; an establishment or premises is registered for export
operations; and the export is in accordance with an approved export
arrangement. Under the bill, the secretary[28] may refuse or suspend a licence, registration or an arrangement if the
applicant or a person who participates or would participate in managing or
controlling the export business is not a 'fit and proper person'.[29] Subsection 372(2) of the bill provides that in determining whether the person
is a 'fit and proper person' the secretary must have regard to a range of
matters including whether the person or an associate of that person:
1.44
In determining whether the person is a 'fit and proper person' the
secretary may also have regard to:
1.45
Section 373 further provides that the rules may prescribe kinds of
persons who are required to be 'fit and proper persons' for the purposes of the
bill.
1.46
The right to work provides that everyone must be able to freely accept
or choose their work, and includes a right not to be unfairly deprived of work.
The right to work also requires that state parties provide a system of protection
guaranteeing access to employment. This right must be made available in a
non-discriminatory manner.[33] The right to freedom of association protects the right of all persons to group
together voluntarily for a common goal and to form and join an association.[34]
1.47
By providing that in order to engage in certain export related
activities a person must be 'fit and proper,' the measure may engage and limit
the right to work, the right to equality and non-discrimination and the right
to freedom of association. This is because a person may be unable to engage in
export related business due to, for example, their conduct or the conduct of an
associate. It is noted that the 'fit and proper person' test may encompass a
broad range of conduct which also extends to the conduct of the person's associates.
In this respect, the 'fit and proper person' test may also penalise a person
for associating with certain individuals. The right to work, the right to
equality and non-discrimination and the right to freedom of association may be
subject to permissible limitations provided that such measures pursue a
legitimate objective, are rationally connected to that objective and are a
proportionate means of achieving that objective.
1.48
In relation to the application of the 'fit and proper person' test, the
statement of compatibility states that the measure pursues 'the legitimate
objective of ensuring that persons who have been approved to export goods from
Australian territory are persons who are trustworthy...[as] the government needs
to be certain that the persons responsible for export operations will not abuse
the trust placed in them'.[35] Given the particular regulatory context, this is likely to be a legitimate
objective for the purposes of international human rights law.
1.49
The measure would also appear to be rationally connected to this
objective. The statement of compatibility explains that the reason why the
measure extends to a person's business associates is that:
1.50
In relation to the measure's application, the statement of compatibility
notes that the requirements will only extend to persons who are voluntarily
seeking to benefit from the export of goods from Australian territory. This is
a relevant factor in respect of whether the measure is a proportionate
limitation on human rights.
1.51
Further in relation to the proportionality of the limitation, the statement
of compatibility notes that section 372 provides an exhaustive list of factors
to be taken into account by the secretary in determining whether the person is
a 'fit and proper' person, that associates are limited to those defined in
section 13 of the bill and that the secretary's decision is reviewable.[37] While these factors are relevant, it is noted that the secretary's discretion
to determine that a person is not a fit and proper person is still potentially
very broad and may allow the secretary to take account of, for example, types
of criminal conviction that may be less serious and 'any other matter' which
the secretary considers relevant. It is unclear from the information provided
why each such category of factor needs to be taken into account to achieve the
legitimate objective of the measure. Further, while 'associates' are restricted
to those set out in section 13, this list is still substantial and
includes family members, advisers, employees and business contacts. This raises
a concern that the limitation may not be the least rights restrictive approach.
1.52
Finally, who is required to be a 'fit and proper person' will be able to
be set out in delegated legislation. This raises a related concern as to
whether the classes of person subject to the requirement are sufficiently
circumscribed.
1.55
The committee has considered human rights issues raised by extradition
regulations and the Extradition Act 1988 (the
Extradition Act) on several previous occasions.[38] As the Extradition Act was legislated prior to the establishment of the
committee, the scheme has never been required to be subject to a foundational
human rights compatibility assessment by the relevant minister in accordance
with the terms of the Human Rights (Parliamentary Scrutiny) Act 2011. The committee
has previously stated that the Extradition Act would benefit from a comprehensive
review from the relevant minister to assess its provisions against Australia's
obligations under international human rights law.[39]
1.56
The Extradition Act provides the legislative basis for extradition in
Australia. The Extradition Act allows Australia to receive extradition requests
from countries that are declared by regulation to be an 'extradition country'[40] and for powers under that Act to be exercised in relation to such a request.
1.57
The Extradition (El Salvador) Regulations 2017 (the El Salvador
regulations) seek to declare El Salvador as an 'extradition country' for the
purposes of the Extradition Act. Previously, the extradition relationship
between Australia and El Salvador was governed by the Treaty between
the United Kingdom of Great Britain and Ireland and El Salvador for the Mutual
Surrender of Fugitive Criminals 1883, which Australia inherited when it
obtained independent status as a constitutional monarchy.
1.58
As the El Salvador regulations expand the operation of the Extradition
Act, it is necessary to assess the human rights compatibility of the
Extradition Act as a whole when considering these regulations.
1.59
The committee has previously considered that extradition pursuant to the
Extradition Act may engage and limit a range of human rights, including the:
1.60
The statement of compatibility acknowledges that these rights are
engaged by the El Salvador regulations.[42]
Compatibility of the measure with
the prohibition against torture, cruel, inhuman and degrading treatment
1.61
Australia has obligations under article 3 of the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment (CAT) not to extradite
a person to another country where there are substantial grounds for believing
that he or she would be in danger of being subjected to torture. Australia's
obligations under article 7 of the International Covenant on Civil and
Political Rights (ICCPR) are broader in scope and not only prohibit torture but
also prohibit 'cruel, inhuman or degrading treatment or punishment'.[43] The United Nations (UN) Human Rights Committee has held that article 7
prohibits extradition of a person to a place where that person may be in danger
of torture or cruel, inhuman or degrading treatment or punishment if
extradited.[44]
1.62
The statement of compatibility states that the El Salvador regulations
are consistent with a person's rights in respect of the prohibition against
torture, cruel, inhuman and degrading treatment.[45] In this respect, it is noted that section 22(3) of the Extradition Act
prohibits the Attorney-General from determining that a person should be
surrendered where there are substantial grounds for believing the person would
be in danger of being tortured. This is an important safeguard for the purposes
of international human rights law. However, there is no equivalent legal
requirement in relation to the extradition of persons who may be in danger of
cruel, inhuman or degrading treatment or punishment if returned. While there is
a general discretion for the Attorney-General not to surrender a person,
as stated in previous human rights assessments by the committee,
ministerial discretion not to remove a person, rather than a legislative
obligation, is not a sufficient safeguard for the purposes of international
human rights law.[46]
Committee comment
1.63
The committee seeks the advice of the Attorney-General as to the
adequacy of the safeguards in the El Salvador regulations and Extradition Act
in relation to the extradition of persons who may be in danger of being subject
to cruel, inhuman or degrading treatment or punishment upon return to the
extradition country.
Compatibility of the measure with
the right to life
1.64
The right to life imposes an obligation on Australia to protect people
from being killed by others or from identified risks. While the ICCPR does not
completely prohibit the imposition of the death penalty, international law
prohibits states which have abolished the death penalty (such as Australia)
from exposing a person to the death penalty in another nation state. This
prohibits a state from deporting or extraditing a person to a country where
that person may face the death penalty.[47] The Constitution of El Salvador retains the death penalty only for cases
provided by military laws during an international state of war.[48]
1.65
The statement of compatibility states that the Extradition Act is
'consistent with the Australian Government's longstanding opposition to the
death penalty', citing section 22(3) of the Extradition Act.[49] That section requires the Attorney-General not to surrender a person to a
country where the offence is punishable by a penalty of death, unless the
country gives an undertaking that the person will not be tried for the offence;
if tried, the death penalty will not be imposed; or if the death penalty is
imposed it will not be carried out. The statement of compatibility also notes
that in practice undertakings relating to the death penalty in extradition
cases have always been honoured.[50] It also notes that 'given the public nature of extradition, the Australian
Government would most likely be aware of a breach of a death penalty
undertaking' as Australia monitors Australian citizens who have been extradited
through its consular network. Additionally, it states that it is open to the
decision-maker to consider ongoing monitoring as a condition of the extradition
and it is open to the person subject to the extradition request to challenge
the decision.[51]
1.66
These are important safeguards that are relevant to the determination of
whether the Extradition Act is compatible with the right to life. However,
diplomatic assurances and undertakings may be breached, and the Extradition Act
does not require the Attorney-General to refuse extradition if there are
substantial grounds to believe the person would be in danger of being subjected
to the death penalty. It also does not require any monitoring of the
treatment of people extradited to ensure that assurances are being complied
with.[52] The UN Human Rights Committee has also noted that diplomatic assurances alone
may not be sufficient to eliminate the risk in circumstances where there is no
mechanism for monitoring of their enforcement or no means through which the
assurances could be effectively implemented.[53]
Committee comment
1.67
The committee seeks the advice of the Attorney-General as to the adequacy
of the safeguards in place to protect the right to life of persons who may be
subject to the death penalty if extradited.
Compatibility of the measure with
the right to a fair hearing and fair trial
1.68
Article 14 of the ICCPR provides that everyone has the right to a fair
and public hearing in the determination of any criminal charge. European human
rights jurisprudence has recognised that fair trial rights may be engaged where
a person is extradited in circumstances where there is a real risk of a flagrant
denial of justice in the country to which the individual is to be extradited.[54] While it is not binding on Australia, the interpretation of the right to a fair
trial and fair hearing under the European Convention of Human Rights is
instructive.[55] It is also noted that the position in European human rights law
jurisprudence is consistent with the United Nations Model Treaty on
Extradition, which includes a mandatory ground of refusing extradition '[i]f
the person whose extradition is requested...would not receive the minimum
guarantees in criminal proceedings, as contained in the International Covenant
on Civil and Political Rights, article 14'.[56] The committee has therefore previously noted its concern that the Extradition
Act does not provide for the denial of a fair trial or fair hearing as a ground
for an extradition objection.[57]
1.69
The statement of compatibility states that the Australian Government's
position is that article 14 of the ICCPR does not contain non‑refoulement
obligations (that is, obligations not to return a person to their country of
origin).[58] The statement of compatibility does, however, provide information as to
safeguards in the Extradition Act which would allow a decision-maker to
consider matters going to fair hearing and fair trial rights, including the
extradition objection precluding extradition if it would result in double
jeopardy,[59] and the general discretion to refuse surrender.[60] The statement of compatibility further notes that it is open to decision-makers
to request assurances that persons being extradited would receive a fair trial.
1.70
However, as noted earlier, a general executive discretion to refuse to
surrender a person may not be a sufficient safeguard for the purposes of
international human rights law.
1.71
An additional issue in relation to the right to a fair hearing and fair
trial is that, under the Extradition Act, the requesting State is not required
to produce any evidence that there is a case to answer before a person is
extradited (this is sometimes referred to as the 'no evidence' model).[61] Further, a person who may be subject to the extradition is prohibited from
adducing any evidence to contradict the allegation that the person has engaged
in conduct constituting an extradition offence (and prohibits a magistrate or
Judge from receiving such evidence).[62] The provisions which govern an appeal to a higher court in relation to
extradition also prohibit a person from adducing such evidence on appeal and
prohibit the court from receiving such evidence on review or appeal.[63]
1.72
The absence of any requirement that there be a case to answer before a
person is extradited raises questions as to whether there are sufficient
safeguards in place to ensure that extradition of persons occurs in a manner
that is compatible with the right to a fair hearing and fair trial. As the
Joint Standing Committee on Treaties noted in its review of Australia's
extradition laws in 2001, 'the consequences for a person who is facing
extradition to a foreign country where the legal system, language and
availability of legal assistance may present great difficulties, mean that
extradition cannot be treated merely as an administrative step'.[64] The statement of compatibility to the El Salvador regulations does not address
the human rights compatibility of the 'no evidence' approach.
Committee comment
1.73
The committee seeks the advice of the Attorney-General as to:
- the adequacy of the safeguards in place to prevent the
extradition of persons who may, on surrender, suffer a flagrant denial of
justice; and
- whether, in not requiring any evidence to be produced before a
person can be extradited, and in preventing a person subject to extradition
from producing evidence about the alleged offence, the El Salvador regulations
and the Extradition Act are compatible with the right to a fair trial and fair
hearing.
Compatibility of the measure with
the right to liberty
1.74
The right to liberty is a procedural guarantee requiring that persons
not be arbitrarily and unlawfully deprived of liberty. This requires that
detention must be lawful, reasonable, necessary and proportionate in all the circumstances.
Imposing a rule that bail must be refused except in special circumstances, as
occurs in the Extradition Act,[65] appears to limit this right. This concern is heightened by the potentially
lengthy period in which a person may be detained during extradition
proceedings.[66] It is noted that this is of particular concern in the context of the
El Salvador regulations, which increase the period in which a person must
be brought before a magistrate or eligible Federal Circuit Court judge after
being arrested from 45 days[67] to 60 days.[68]
1.75
As such, the limitation must be shown to seek to achieve a legitimate
objective, have a rational connection to that objective and be proportionate.
The statement of compatibility notes that a presumption against bail is
appropriate 'given the serious flight risk posed in extradition matters and
Australia's international obligations to secure the return of the alleged
offenders to face justice in the requesting country'.[69] However, as the committee has previously stated, while preventing people who
may be a flight risk from avoiding the extradition process may be capable of
being a legitimate objective, it is not clear that a blanket prohibition on
bail except in special circumstances is a proportionate response.[70]
1.76
In Griffiths v Australia, the UN Human Rights Committee found
that Australia had breached Article 9(1) of the ICCPR on the basis that the
complainant's continuing detention pending extradition without adequate
individual justification was arbitrary.[71] It reiterated that in order to avoid a characterisation of arbitrariness,
detention should not continue beyond the period for which the State party could
provide appropriate justification.[72] It also concluded that there may be less rights-restrictive measures to achieve
the same ends, such as the imposition of reporting obligations, sureties or
other conditions which would take account of individual circumstances.[73]
1.77
The UN Human Rights Committee also found Australia in violation of
article 9(4) of the ICCPR in circumstances where the complainant was
'effectively precluded, by virtue of the State party's law and practice, from
taking effective proceedings before a court in order to obtain a review of the
lawfulness of his continuing detention, as the courts had no power to review
whether his detention continued to be lawful after a lapse of time and to order
his release on this basis'.[74] The Australian government responded to this ruling by noting (relevantly) that
it was open to the complainant to apply for bail, citing the power of the Court
under section 21(6) of the Extradition Act to order release on bail if there
were 'special circumstances' justifying that release, and also pointed to the
availability of the writ of mandamus in the High Court of Australia and
judicial review under the Judiciary Act 1903.[75] However, it is not clear that the requirement of a court considering whether
'special circumstances' exist would be sufficient consideration of whether a
person's detention may be compatible with Article 9. It is also not clear how
such matters would be able to be raised through judicial review. Therefore,
questions arise as to whether the current framework for review in the
Extradition Act, as expanded by the El Salvador regulations, provides
sufficient opportunity for persons to challenge the lawfulness of their
continuing detention for the purposes of international human rights law.
1.78
Further, extradition invariably results in the detention of a person
pending extradition and may also involve lengthy detention in a foreign country
while awaiting trial. This potentially lengthy detention of persons without
first testing the evidence against them raises additional concerns that the 'no
evidence' model discussed above may give rise to a circumstance where a person
may be arbitrarily detained. This matter was not addressed in the statement of
compatibility.
Committee comment
1.79
The committee seeks the advice of the Attorney-General as to:
- whether a presumption against bail except in special
circumstances is a proportionate limitation on the right to liberty;
- whether, having regard to Griffiths v Australia, the El
Salvador regulations and the Extradition Act provide an opportunity for persons
to review the lawfulness of their detention pending extradition in accordance
with article 9(4) of the ICCPR;
- whether detaining persons during the extradition process without
first testing the evidence against the person is compatible with the right to
liberty; and
- whether section 6 of the El Salvador regulations, which increases
the period in which a person must be brought before a magistrate or eligible
Federal Circuit Court judge after being arrested from 45 days to 60 days, is a
proportionate limitation on the right to liberty.
Compatibility of the measure with
the right to equality and non-discrimination
1.80
The right to equality and non-discrimination 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. The prohibited
grounds of discrimination are race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.
Under 'other status' the following have been held to qualify as prohibited
grounds: age, nationality, marital status, disability, place of residence
within a country and sexual orientation. The prohibited grounds of
discrimination are often described as 'personal attributes'.
1.81
As noted in the statement of compatibility, section 7 of the Extradition
Act promotes this right to the extent that it sets out grounds on which a
person might raise an objection to extradition, including grounds to object
where:
- surrender is sought for the purpose of prosecuting or punishing
the person on account of his or her race, sex, sexual orientation, religion,
nationality or political opinions; or
- the person may be prejudiced at his or her trial, or punished,
detained or restricted in his or her personal liberty, by reason of his or her
race, sex, sexual orientation, religion, nationality or political opinions.[76]
1.82
While these are important safeguards, it does not cover all of the
grounds that are considered 'prohibited grounds' of discrimination in the
international human rights conventions to which Australia is a party, including
discrimination on the basis of disability, language, opinions (other than
political opinions), social origin or marital status. The statement of
compatibility notes that the person subject to extradition 'has an opportunity
to make representations to the decision-maker regarding all of the protected
attributes in article 26 of the ICCPR',[77] however no information is provided in the statement of compatibility as to how
such matters would be taken into account. There does not appear to be any legal
requirement for a decision-maker to refuse to surrender a person where they may
be subject to discrimination on a prohibited ground that is not included in
section 7 of the Extradition Act.
Committee comment
1.83
The committee seeks the advice of the Attorney-General as to the
compatibility of the El Salvador regulations and the Extradition Act with the
right to equality and non-discrimination. In particular, the committee seeks
information as to the safeguards in place to ensure:
- a person is not extradited where their surrender is sought for
the purpose of prosecuting or punishing the person on account of her or his
personal attribute that is protected under article 26 of the ICCPR but not
listed in section 7 of the Extradition Act; and
- a person is not extradited where they may be prejudiced at her or
his trial, or punished, detained or restricted in her or his personal liberty,
by reason of a personal attribute that is protected under article 26 of the
ICCPR but not listed in section 7 of the Extradition Act.
Removing India from the list of extradition countries in the Extradition
(Commonwealth Countries) Regulations 2010
1.84
Item 1 of the Extradition Legislation Amendment (2017 Measure No. 1)
Regulations (Extradition Amendment Regulations) seeks to remove India from the
list of extradition countries in Schedule 1 in the Extradition (Commonwealth
Countries) Regulations 2010 (the Commonwealth Countries Regulations). This is
because extradition requests between Australia and India are now governed under
the Extradition (India) Regulations 2010 (the India Regulations) and the
Extradition Act, so the reference to India in the Commonwealth Countries
Regulations is no longer required.
Compatibility of the measure with
multiple rights
1.85
The human rights analysis discussed earlier in relation to the El
Salvador regulations applies equally to the Extradition Amendment Regulations.
However, it is noted that there are several additional safeguards included in
the India regulations that are not present in the El Salvador regulations and
which modify the operation of the Extradition Act, including:
- article 4(3)(d) of the bilateral extradition treaty with India
(implemented domestically through the India Regulations) allows a request for
extradition to be refused if surrender is likely to have exceptionally serious
consequences for the person whose extradition is sought, including because of
the person's age or state of health; and
-
if Australia receives a request under the India Extradition
Treaty, then supporting documentation to establish that the person sought has
committed the offence must be provided.[78] This is a departure from the 'no evidence' standard discussed above in relation
to the El Salvador regulations.
1.86
However, it is also noted that the Commonwealth Countries Regulations,
which will no longer apply to India as a result of the Extradition Amendment
Regulations, provides for additional safeguards which would have provided
greater safeguards to protect human rights, including:
- the standard of evidence required to support an extradition
request under the Commonwealth Countries Regulations is that of a 'prima facie'
case,[79] which provides a greater level of scrutiny than the 'no evidence' standard
under the Extradition Act; and
- a requirement that the person must not be surrendered if the
Attorney-General is satisfied that it would be 'unjust, oppressive or too
severe a punishment' to surrender the person, such as where the offence is
trivial or where the accusation against the person was not made in good faith
or in the interests of justice.[80]
1.87
These safeguards in the Commonwealth Countries Regulations are relevant
to the determination of whether the human rights engaged and limited by the
Extradition Act are proportionate. In particular, the presence of the 'prima
facie' evidence test in the Commonwealth Countries Regulations would address
some of the concerns discussed earlier concerning the default 'no evidence'
standard in the Extradition Act in relation to the right to a fair trial and
fair hearing and the right to liberty. Similarly, the requirement that a person
must not be extradited if it would be 'unjust, oppressive or too severe a
punishment' may assist in determining whether the measure is compatible with
the right to a fair trial and fair hearing. By removing India from the scope of
the Commonwealth Countries Regulations, these safeguards are no longer
available.
Committee comment
1.88
The committee seeks the advice of the Attorney-General as to the
compatibility of Items 2 and 3 of the Extradition Legislation Amendment (2017
Measure No.1) Regulations with human rights, having regard to the matters
discussed at [1.61] to [1.83] above, in particular the:
- prohibition against torture, cruel, inhuman and degrading
treatment;
- right to life;
- right to a fair hearing and fair trial;
- right to liberty; and
- right to equality and non-discrimination.
1.89
The committee seeks the advice of the Attorney-General as to whether
removing India from the list of 'extradition countries' in the Extradition
(Commonwealth Countries) Regulations 2010 is a proportionate limitation on human
rights, having regard to the safeguards in that regulation that are not present
in the Extradition Act or the Extradition (India) Regulations 2010.
Amendments to reflect changes made to the Convention on the Physical
Protection of Nuclear Material 1979
1.90
Items 2, 3 and 4 of the Extradition Amendment Regulations also seek to
amend the Extradition (Physical Protection of Nuclear Materials) Regulations
1988 (the Nuclear Materials Regulations) and the Extradition Regulations 1988
to reflect amendments made to the Convention on the Physical Protection of
Nuclear Material (the Nuclear Material Convention). That convention relevantly
requires states parties to provide extradition and mutual assistance to
facilitate the enforcement of a series of offences relating to the protection,
storage and transportation of nuclear material. Amendments to that convention
were made by the Amendment to the Convention on the Physical Protection of
Nuclear Material (the Amended Nuclear Material Convention) which expands the
list of offences for which signatories may request a person's extradition. The
Amended Nuclear Material Convention also requires signatories not to regard
offences committed under that convention as a 'political offence' when
considering a request for extradition or mutual assistance.[81] As a consequence, a request for extradition or for mutual legal assistance
based on an offence under the Nuclear Material Convention (as amended by the
Amended Nuclear Material Convention) cannot be refused on the ground it is a
political offence.
Compatibility of the measure with
multiple rights
1.91
The effect of the amendments introduced relating to the Amended Nuclear
Material Convention in the Extradition Amendment Regulations is to expand the
operation of the Extradition Act to include a broader range of offences, and to
remove offences under the Nuclear Material Convention (as amended by the
Amended Nuclear Material Convention) from the scope of the 'political offence'
extradition objection. As a consequence, the human rights analysis discussed
above in relation to the El Salvador regulations applies equally to these
amendments.
1.92
As noted in the statement of compatibility, there are some safeguards
contained in the Nuclear Material Convention (as amended by the Amended Nuclear
Material Convention) that are incorporated into Australian law through the
Nuclear Materials Regulations that may assist in determining the
proportionality of the limitations on human rights, including:
- article 11B of the Amended Nuclear Material Convention provides
that nothing in the convention shall be interpreted as an obligation to
extradite where the extraditing state has substantial grounds for believing
that the request for extradition for one of the offences under the convention
'has been made for the purpose of prosecuting or punishing a person on account
of that person’s race, religion, nationality, ethnic origin or political
opinion or that compliance with the request would cause prejudice to that
person’s position for any of these reasons'; and
- article 12 of the Nuclear Material Convention provides that any
persons in relation to whom proceedings are being carried out in connection
with the offences in the convention 'shall be guaranteed fair treatment at all
stages of the proceedings'.
1.93
However, concerns remain in relation to the human rights compatibility
of the Extradition Amendment Regulations for the same reasons as those outlined
above in relation to the El Salvador Regulations. For example, it is noted that
the 'no evidence' standard applies in relation to these amendments. While the
statement of compatibility states that the 'prima facie' standard is not
required because extradition is not a criminal process,[82] the statement of compatibility does not specifically address the concerns
raised above that the 'no evidence' standard may not provide a sufficient
safeguard to ensure that extradition of persons occurs in a manner that is
compatible with the right to a fair hearing and fair trial or right to liberty.
Committee comment
1.94
The committee seeks the advice of the Attorney-General as to the
compatibility of items 2 and 3 of the Extradition Legislation Amendment (2017
Measure No.1) Regulations with human rights having regard to the matters
discussed at [1.61] to [1.83] above, in particular the:
- prohibition against torture, cruel, inhuman and degrading
treatment;
- right to life;
-
right to a fair hearing and fair trial;
-
right to liberty; and
- right to equality and non-discrimination.
Higher Education Support Legislation Amendment (Student
Loan Sustainability) Bill 2018
Purpose |
Amends the Higher
Education Support Act 2003 including to: provide a new minimum repayment
income of $44,999 for the compulsory repayment of Higher Education Loan Program
(HELP) debts; replace the current repayment thresholds and introduce
additional repayment thresholds; index HELP repayment thresholds to the
consumer price index instead of average weekly earnings; and introduce, from
1 January 2019, a combined lifetime limit on the amount a student can borrow
under HELP of $150,000 for students studying medicine, dentistry and veterinary
science courses, and $104,440 for other students |
Portfolio |
Education and Training |
Introduced |
House of representatives,
14 February 2018 |
Rights |
Education; equality and
non-discrimination (see Appendix 2) |
Status |
Seeking additional
information |
Background
1.95
The committee has commented on proposed reforms to the funding of higher
education and reforms to the Higher Education Loan Program (HELP) on a number
of occasions.[83]
1.96
Most recently, the committee considered the Higher Education Support
Legislation Amendment (A More Sustainable, Responsive and Transparent Higher
Education System) Bill 2017 (2017 bill) in its Report 5 of 2017 and Report
7 of 2017.[84] The current 'Student Loan Sustainability' bill[85] (2018 bill) reintroduces a number of the measures contained in the 2017 bill.
Lowering repayment threshold for HELP debts and changes to indexation
1.97
Schedule 1 of the 2018 bill lowers the current minimum repayment income
for HELP loans to $44,999 per annum (currently, the repayment threshold is
$55,874).[86] It also introduces additional repayment thresholds and rates (1 percent at
$45,000 and increasing to 10 percent on salaries over $131,989 per annum).[87] The equivalent measure contained in the 2017 bill sought to lower the repayment
threshold to $41,999 per annum.[88]
1.98
From 1 July 2019 repayment thresholds including the minimum repayment
amount will be indexed using the Consumer Price Index (CPI) rather than Average
Weekly Earnings (AWE).[89] This is a reintroduced measure which is contained in the 2017 bill.
Compatibility of the measures with
the right to education
1.99
Article 13 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR) protects the right to education. It specifically
requires, with a view to achieving the full realisation of the right to
education, that:
Higher education shall be made equally accessible to all, on
the basis of capacity, by every appropriate means, and in particular by the
progressive introduction of free education.
1.100
Australia has obligations to progressively introduce free higher
education by every appropriate means and also has a corresponding duty to
refrain from taking retrogressive measures, or backwards steps, in relation to
the realisation of the right to education.[90] Retrogressive measures, a type of limitation, may be permissible under
international human rights law providing that they address a legitimate
objective, are rationally connected to that objective and are a proportionate
way to achieve that objective.[91]
1.101
The Australian system of higher education allows students to defer the
costs of their education under a HELP loan until they start earning a salary
above a certain threshold. The proposed lowering of the repayment threshold
engages and may limit the right to education as it imposes payment obligations
on those who earn lower incomes. This appears to be contrary to the requirement
under article 13 of the ICESCR to ensure that higher education is equally
accessible and progressively free. Similarly, the proposed change to indexation
also engages and may limit the right to education as it may increase the amount
to be paid, relative to earnings, in the event that growth in the CPI exceeds growth
in AWE. In this respect, the United Nations (UN) Committee on Economic, Social
and Cultural Rights has raised serious concerns about access to education in
the context of the operation of student loan schemes internationally.[92]
1.102
The committee previously corresponded with the minister about the
compatibility of the measures in the 2017 bill which sought to lower the
repayment threshold with the right to education. The repayment threshold in the
2018 bill is slightly higher than the amount in the 2017 bill, but the measures
raise substantively identical issues in relation to the right to education.
While the statement of compatibility to the 2018 bill identifies that these
measures engage the right to education, it does not include the level of detail
previously provided by the minister in his response to the 2017 bill. Where a
measure that the committee has previously considered is reintroduced, previous
ministerial responses to the committee's requests for further information
should be used to inform the statement of compatibility for the reintroduced
measure. This additional information may assist the committee to determine
whether or not the reintroduced measures are compatible with human rights,
including taking into account previous conclusions.
1.103
In the context of this measure, the committee has previously concluded
that lowering the repayment threshold may be compatible with the right to
education. This was based on the information that was previously provided by
the minister in response to the committee's request for information. However,
in the absence of any detail from the minister in the statement of
compatibility to the 2018 bill, further information is required in order for
the committee to conclude its assessment of the reintroduced measure.
1.104
Nevertheless, the statement of compatibility argues that the measures
are compatible with the right to education as they do not increase the overall
cost to students or prevent access to higher education:
Access to higher education will be maintained through the
continued availability of HELP loans. As individuals will commence repayment
sooner, it may create the belief that costs are increasing for students,
thereby reducing access to higher education. By lowering the repayment threshold,
and altering the indexation of the threshold to grow in line with CPI, this
measure makes the overall scheme more affordable for Government in the
long-term, and does not result in an overall increase in costs for students.[93]
1.105
However, this does not fully address whether the changes to indexation
and the repayment threshold may act as a disincentive for access to education
or, more generally, how such measures impact upon Australia's obligations of
progressive realisation.
1.106
Additionally, there may be a category of low income earners who, due to
earning below the repayment threshold, may never have had to repay off the
entire amount of their HELP-debt. If such low income earners now have to repay
HELP-loans due to a change in thresholds, there are questions as to whether
this could be an indirect reduction in freely accessible higher education for
these classes of individuals.
1.107
Should the measure constitute a limitation on the right to education, it
is unclear from the information provided whether this limitation is permissible
as a matter of international human rights law. The statement of compatibility
identifies the objective of the measure as 'ensuring the long term viability of
the HELP scheme'.[94] However, it does not provide an evidence-based explanation of how this
constitutes a legitimate objective for the purposes of international human
rights law. In this respect, a legitimate objective must address a pressing or
substantial concern and not simply seek an outcome regarded as desirable or
convenient. Additionally, as set out above, a limitation must be rationally
connected to, and a proportionate way to achieve, its stated objective in order
to be permissible under international human rights law.
Committee comment
1.108
The preceding analysis raises questions as to whether the
measures are compatible with the right to education.
1.109
Accordingly, the committee requests the further advice of the minister
as to:
- whether the proposed change in indexing from AWE to CPI means
that students would pay more or less for their university degrees (including
for their degree overall and as a proportion of their wages);
- whether requiring some classes of low income earners to repay
HELP-debts could constitute an indirect reduction in the amount of government
funding of higher education;
- whether the proposed changes to the repayment threshold and
indexation could have an adverse impact on access to education;
- whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
- how the measure is effective to achieve (that is, rationally
connected to) that objective; and
- whether the limitation is a reasonable and proportionate
measure to achieve the stated objective.
Compatibility of the measure with
the right to equality and non-discrimination (indirect discrimination)
1.110
The right to equality and non-discrimination is protected by articles 2
and 26 of the International Covenant on Civil and Political Rights (ICCPR).
Article 2(2) of ICESCR also prohibits discrimination specifically in relation
to the human rights contained in the ICESCR such as the right to education. In
addition to these general non-discrimination provisions, articles 1, 2, 3, 4
and 15 of the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) further describe the content of these obligations,
including the specific elements that state parties are required to take into
account to ensure the rights to equality for women.[95]
1.111
'Discrimination' encompasses a distinction based on a personal attribute
(for example, race, sex or on the basis of disability),[96] which has either the
purpose (called 'direct' discrimination), or the effect (called 'indirect'
discrimination), of adversely affecting human rights.[97] 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 protected attribute.[98]
1.112
Reducing the minimum repayment income threshold for HELP debts to
$44,999 may have a disproportionate impact on women and other vulnerable
groups.[99] In relation to women, this is because, on average, women are more likely to
earn less than men, and therefore more are likely to be affected by the
reduction in the repayment threshold to cover those earning between $44,999 and
$55,000.
1.113
The change in indexation may also have a disproportionate effect on
women and other vulnerable groups. As women, on average, earn less over a
lifetime of employment, are more likely to take time out of the workforce to
care for children and are more likely to be engaged in part-time employment,
they may take longer to pay off their HELP debt than their male counterparts.[100] Where a
person takes longer to repay a HELP debt, any changes in indexation under the
HELP scheme relative to their earnings may have a more significant effect on
them. This is because they may be subject to the indexation changes and
repayment obligations for a longer period of time.
1.114
Where a measure impacts on particular groups disproportionately, it
establishes prima facie that there may be indirect discrimination.[101] Differential treatment (including the differential effect of a measure that is
neutral on its face)[102] will not constitute unlawful discrimination if the differential treatment is
based on reasonable and objective criteria such that it serves a legitimate
objective, is effective to achieve that legitimate objective and is a
proportionate means of achieving that objective.
1.115
The statement of compatibility acknowledges that the measures engage the
right to equality and non-discrimination due to their disproportionate impacts
on women:
...the introduction of new HELP repayment thresholds, may be
seen as limiting the right to non-discrimination due to disproportionate
impacts on women and other low income groups.
The Government currently carries a higher deferral subsidy
from demographic groups that tend to have lower incomes. This includes women,
individuals in part-time work, or individuals in low paid professions. As a
result, some of these individuals, including women, may be making repayments
for the first time as a result of the introduction of a lower minimum repayment
threshold. Addressing this income inequality, however, is not the role of the
higher education loans system.[103]
1.116
This statement is identical to the information provided in the statement
of compatibility for the 2017 bill.[104] As with the 2017 bill, the statement of compatibility to the 2018 bill does not
provide a substantive assessment of whether the measure amounts to indirect
discrimination nor does it address the concerns expressed by the committee in
its consideration of the measures in the 2017 bill.
1.117
Further, the argument in the statement of compatibility that a negative
impact on women results from income inequality is not an adequate justification
of the measure for the purposes of human rights law in circumstances where the
measure has the potential to exacerbate inequality. Rather, as set out above,
where there is evidence that a measure may have a disproportionate negative
effect on women it shows prima facie that the measure itself may be
discriminatory. In these circumstances, the measure may still be compatible
with the right to equality and non-discrimination where the measure serves a
legitimate objective, is effective to achieve that objective and is a
proportionate means of achieving that objective. However, the statement of
compatibility does not address whether this is the case with respect to these
measures. Further, international human rights law recognises that it is
fundamentally the role of government to address existing inequalities and
ensure that these are not exacerbated through particular measures. In this
respect, the United Nations (UN) Committee on Economic, Social and Cultural
Rights, in its concluding observations on Australia in July 2017, recommended
that Australia 'intensify its efforts to address the remaining obstacles to
achieving substantive equality between men and women'.[105] As the minister's response to the 2017 bill did not fully address such issues,
the committee previously advised that it was not possible to conclude that the
measure was compatible with the right to equality and non-discrimination.[106]
Committee comment
1.118
The measure engages the right to equality and non-discrimination.
1.119
The preceding analysis raises questions as to whether the
disproportionate negative effect on women (which indicates prima facie indirect
discrimination) amounts to unlawful discrimination.
1.120
Accordingly, the committee requests the further advice of the minister
as to:
- whether the measure pursues a legitimate objective for the
purposes of international human right law and whether there is reasoning or
evidence that establishes that this objective addresses a pressing or
substantial concern;
- how the measure is effective to achieve (that is, rationally
connected to) the stated objective; and
- whether the limitation is a reasonable and proportionate
measure to achieve the stated objective.
Restriction on how much students can borrow under HELP to cover tuition fees
1.121
Schedule 3 of the 2018 bill introduces a new combined limit on how much
students can borrow under HELP to cover their tuition fees from 1 January 2019.
Currently, the limit applies only to debts incurred through FEE-HELP,[107] VET FEE-HELP[108] and VET Student Loans.[109] Under the proposal, debts incurred by Commonwealth supported students under
HECS-HELP[110] will also be included in the lending limit. This means that all eligible
domestic students will be subject to a single combined lending limit for their
tuition fees. The lifetime limit will be $150,000 for students studying
medicine, dentistry and veterinary science courses and $104,440 for other
students. Loan limits will be indexed according to CPI.[111] The loan limit will not be retrospective with respect to HECS-HELP.[112]
Compatibility of the measure with
the right to education
1.122
As set out above, article 13 of the ICESCR protects the right to
education including ensuring that higher education is equally accessible, on
the basis of capacity and through the progressive introduction of free higher
education.
1.123
The combined lifetime loan limit on all HELP lending may restrict access
to tertiary or further education for individuals who have reached the loan
limit and who are unable to afford to pay their tuition fees upfront.
Accordingly, the measure appears to be a backward step, or limitation, on the
level of attainment of the right to higher education.[113] As noted above, such
limitations or retrogressive measures may be permissible under international
human rights law provided that they address a legitimate objective, are
rationally connected to that objective and are a proportionate way to achieve
that objective. In this context, the UN Committee on Economic, Social and
Cultural Rights has noted that:
There is a strong presumption of impermissibility of any
retrogressive measures taken in relation to the right to education, as well as
other rights enunciated in the Covenant. If any deliberately retrogressive
measures are taken, the State party has the burden of proving that they have
been introduced after the most careful consideration of all alternatives and
that they are fully justified by reference to the totality of the rights
provided for in the Covenant and in the context of the full use of the State
party’s maximum available resources.[114]
1.124
The statement of compatibility acknowledges that the measure engages the
right to education and argues that any limitation on the right is permissible.
It identifies the objective of the measure as 'ensuring access to tertiary
education for those who cannot afford to pay their tuition upfront'.[115] While ensuring access to tertiary education may be capable of constituting a
legitimate objective for the purposes of international human rights law, limited
information is provided in the statement of compatibility as to how this
constitutes a pressing or substantial concern in the specific circumstances of
the measure.
1.125
Further, it is unclear from the information provided how this measure is
rationally connected to (that is, effective to achieve) this objective. This is
because rather than ensuring access to higher education for those who cannot
afford to pay fees upfront, the measure would appear instead to restrict access
to higher education for those unable to pay if they have already reached the
HELP limit.
1.126
In relation to the proportionality of the limitation, the statement of
compatibility states that the loan limit is:
...firstly, sufficient to support almost nine years of full
time study as a Commonwealth supported student and, secondly, can reasonably be
repaid within a borrower's lifetime, this measure is consistent with fair and
shared access to education.[116]
1.127
However, this may not fully take into account all potential impacts on
access to education for students, particularly in the context of lifelong
learning or retraining. Additionally, while the loan amount may be sufficient
to support nine years of fulltime study as a Commonwealth supported student,
this does not appear to fully acknowledge the context of current higher
education funding arrangements. Currently, in many graduate and postgraduate
programs there are few commonwealth supported student places.[117] If a commonwealth supported place is unavailable, this means that students will
usually have to pay higher fees in respect of such graduate and postgraduate
programs. While students may be able to borrow the cost of their tuition under
FEE-HELP, they will reach the lifetime loan limit sooner due to the higher
costs of tuition. However, the effect of the measure will be to count both the
FEE-HELP debt and any HECS-HELP debt (that students have already incurred, for
example, during their undergraduate degree) for the purposes of the lifetime
limit. This means that it is possible an Australian student who completes, for
example, an undergraduate bachelor degree as a commonwealth supported student
followed by a full-fee paying graduate degree may reach the lifetime loan
limit. Accordingly, this raises a particular concern that the measure could
have a significant impact on access to higher education for some students.[118] Further, no information has been provided in the statement of compatibility
about the consideration of alternatives, in the context of Australia's use of
its maximum available resources. Based on the information provided, it is
unclear that the measure is proportionate.
Committee comment
1.128
The preceding analysis raises questions as to the compatibility
of the measure with the right to education.
1.129
The committee therefore seeks the advice of the minister as to:
- whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
- how the measure is effective to achieve (that is, rationally connected
to) that objective;
- whether the limitation is a reasonable and proportionate
measure to achieve the stated objective (including in the context of lifelong
learning or a future need for retraining);
- whether alternatives to the measure have been fully
considered; and
- how the measure complies with Australia's obligation to use
the maximum of its available resources to ensure higher education is accessible
to all, on the basis of capacity, by every appropriate means, and by the
progressive introduction of free education.
Identity-matching Services
Bill 2018
Australian Passports Amendment (Identity-matching Services) Bill 2018
Purpose |
Seeks to facilitate the
exchange of identity information between Commonwealth, state, local and
territory governments and certain non-government entities by providing
explicit legal authority for the Department of Home Affairs to collect, use
and disclose identification information in order to operate identity-matching
services |
Portfolio |
Home Affairs; Foreign
Affairs and Trade |
Introduced |
House of Representatives, 7
February 2018 |
Rights |
Privacy (see Appendix 2) |
Status |
Seeking additional
information |
Background
1.130
The committee previously examined the instrument providing legislative
authority for the government to fund the National Facial Biometric Matching
Capability (the Capability) in its Report 9 of 2017 and its Report 11
of 2017.[119] The Capability facilitates the sharing and matching of facial images as well as
biometric information between agencies through a central interoperability hub
(the Hub) and the National Driver Licence Facial Recognition Solution (the
NDLFRS). In relation to this measure, the committee concluded that there was a
risk of incompatibility with the right to privacy through the use of the
existing laws as a basis for authorising the collection, use, disclosure and
retention of facial images. The committee stated that setting funding for the
Capability without new primary legislation which circumscribes the Capability's
operation raises serious concerns as to the adequacy of safeguards to ensure
that the measure is a proportionate limitation on the right to privacy.[120]
Facilitating facial and biometric data identity matching
1.131
The Identity-matching Services Bill 2018 (the Identity Matching Bill) provides
that the secretary of the Department of Home Affairs may develop, operate and
maintain the Hub and the NDLFRS.[121]
1.132
The Hub would facilitate the sharing and matching of facial images as
well as biometric information between government agencies by relaying
electronic communications.[122]
1.133
The NDLFRS will include a database of identification information from
state and territory authorities and will make driver licence facial images
available through the identity matching service described below at [1.135].[123]
1.134
The Identity Matching Bill provides an explicit legal basis to authorise
the Department of Home Affairs to collect, use and disclose 'identification
information' about an individual if it occurs through the Hub or the NDLFRS and
is for a range of specified purposes.[124] 'Identification information' is defined to include a person's name (current and
former); address (current and former); place and date of birth; current or
former sex, gender identity or intersex status; any information contained in a
driver's licence, passport or visa and a facial image of the person.[125]
1.135
As set out in the explanatory memorandum, the Hub and the NDLFRS will
support a range of identity matching services:
- the Face Verification Service (FVS), which enables a facial image
and associated biographic details of a person to be compared on a one-to-one
basis against an image held on a specific government record for that same
individual;
- the Face Identification Service (FIS), which searches or matches
facial images on a one-to-many basis to help determine the identity of an
unknown person, or detect instances where a person may hold multiple fraudulent
identities;
-
the One Person One Licence Service (OPOLS), which will allow
state and territory agencies to detect instances where a person may hold
multiple driver licences across jurisdictions;
- the Facial Recognition Analysis Utility Service (FRAUS), which
will allow state and territory agencies to assess the accuracy and quality of
their data holdings; and
- the Identity Data Sharing Service (IDSS), which will allow for the
sharing of biometric identity information between Commonwealth, state and
territory agencies.[126]
1.136
The explanatory memorandum states that all states and territories have
agreed to introduce or preserve legislation to support the collection, use and
disclosures of facial images and identity information via these identity
matching services.[127]
Compatibility of the measures with
the right to privacy
1.137
The right to privacy includes respect for informational privacy,
including the right to respect for private information, particularly the
storing, use and sharing of personal information; and the right to control the
dissemination of information about one's private life. As noted in the
committee's previous reports, the collection, use and disclosure of identity information
(including photographs) through the Hub and the NDLFRS engages and limits the
right to privacy.[128] 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.
1.138
The statement of compatibility to the Identity Matching Bill acknowledges
that authorising the Department of Home Affairs to collect, use and disclose
information including personal and sensitive information engages and limits the
right to privacy but argues that this limitation is permissible.[129] The statement of compatibility states that the measure pursues a range of
objectives for each identity matching service (namely, the FVS, FIS, OPOLS, FRAUS
and IDSS). These include the detection and prevention of identity fraud,
national security, law enforcement, protective security, road safety and
community safety.[130] These are likely to constitute legitimate objectives for the purposes of
international human rights law.
1.139
The statement of compatibility to the Identity Matching Bill indicates
that matching facial images, biometric data and identities through the Hub and
the NDLFRS is also likely to be rationally connected (that is, effective to
achieve) these objectives.
1.140
In relation to proportionality, each of the identity matching services
provide for differing degrees of use, access and disclosure of personal
information. However, there are general concerns in relation to proportionality
that underlie each of the services. As such, the services will be discussed
collectively below. Where there are particular concerns in relation to a
specific identity matching service, these will also be discussed further below.
1.141
To be proportionate, a limitation on the right to privacy should only be
as extensive as is strictly necessary to achieve its legitimate objective and
must be accompanied by appropriate safeguards. In relation to the scope of the
limitation on the right to privacy proposed under the Identity Matching Bill,
the statement of compatibility explains:
The Bill is designed to facilitate Home Affairs to provide
the identity-matching services, rather than authorise information-sharing by
other organisations participating in the services. The Bill has been developed
on the basis that other agencies or organisations participating in the
identity-matching services must have their own legal authority to do so, and
must comply with legislated privacy protections that apply to them.
This provides an additional layer of protection for the
identification information held within the NDLFRS or transmitted via the
interoperability hub, by ensuring that there is no automatic exemption from
privacy protections for users of the identity-matching services.[131]
1.142
Providing that agencies must have their own authorisation to access data
could assist to circumscribe the limitation on the right to privacy. However, it
appears that, depending on the scope of the authorisation provided to other
agencies, facilitating access to identity matching services via the Hub and NDLFRS
still could be a very extensive limitation on the right to privacy. In this
respect, the scope provided for commonwealth, state and territory agencies to
determine what information they will provide and the circumstances in which
information will be available through an authorisation, does not fully address privacy
concerns in relation to the Identity Matching Bill.[132] This is because these agencies may not have adequate and effective safeguards
in place to ensure that the disclosure and use of information to and from the
Hub is a proportionate limit on the right to privacy.
1.143
More generally, who can access facial images and other biometric data,
and in what circumstances, is relevant to whether the measure is sufficiently
circumscribed. The Identity Matching Bill sets out who can use particular
identity matching services through the Hub and the NDLFRS and in some cases for
what purposes. The extent of access differs depending on the particular
service. For example, the FIS can be used by a defined list of commonwealth,
state and territory agencies as well as those prescribed through delegated
legislation.[133] Restricting access to the FIS to specified particular agencies would assist
with the proportionality of the measure. This is because the FIS is a more extensive
limitation on the right to privacy in that it allows agencies to identify an
unknown person. However, it is noted that in relation to the FIS the minister
is empowered to prescribe further agencies by delegated legislation, such that
it is unclear whether the measure is sufficiently circumscribed. In relation to
the FVS, providing an agency otherwise has authorisation, the FVS may be used
more broadly by an any agency of the commonwealth, state or territory or local
government authorities or non-government entities that have been prescribed by
regulation.[134] For the FVS and other identity matching services (the FRAUS, IDSS and OPOLs),
there would therefore appear to be a potentially broad range of agencies that
could access such services for a range of purposes.
1.144
Further, to the extent that current Australian privacy laws may apply to
the proposed facility to match facial images and other biometric data, there
are questions as to whether the current laws would provide adequate and
effective safeguards for the purposes of international human rights law. In
particular, while facial images are a type of personal information protected by
the Australian Privacy Principles (APPs) and the Privacy Act 1988 (Privacy Act),[135] compliance with the APPs and the Privacy Act does not necessarily
provide an adequate safeguard for the purposes of international human rights
law. This is because the APPs contain a number of exceptions to the prohibition
on use or disclosure of personal information, including (as noted by the
minister) where its use or disclosure is authorised under an Australian Law,[136] which
may be a broader exception than permitted in international human rights law.
There is also a general exemption in the APPs on the disclosure of personal
information for a secondary purpose where it is reasonably necessary for one or
more enforcement related activities conducted by, or on behalf of, an
enforcement body.[137] Therefore, in the absence of greater safeguards in the Identity Matching Bill,
there are serious questions as to whether the safeguards currently provided
under Australian law would be sufficient for the purposes of international
human rights law.
1.145
The number and type of facial images and other biometric data that may
be collected, accessed, used and disclosed through the Hub and the NDLFRS is
also relevant to the proportionality of the limitation. The statement of
compatibility indicates the broad range of facial images and biometric
information which would be accessible or searchable through the Hub including
state and territory driver licences (via the NDLFRS). As the Hub will permit
access to driver licences, the personal information of a significant proportion
of the adult Australian population will be retained. A centralised facility for
searching such large repositories of facial images and biometric data is a very
extensive limitation on the right to privacy. The extent of the limitation
heightens concerns as to whether the measure is overly broad and insufficiently
circumscribed. There is a serious question as to whether having databases of,
and facilitating access to, facial images of a very significant portion of the
population in case they are needed is the least rights restrictive approach to
achieving the stated objectives of the measure.
1.146
The statement of compatibility explains that the Identity Matching Bill restricts
the authorisation for the Department of Home Affairs to collect, use and
disclose information to a defined set of purposes, including providing an
identity matching service for the purpose of an identity or community
protection activity. Section 6 of the Identity Matching Bill defines 'identity
or community protection activities' as detecting identity fraud, law
enforcement activities, national security activities, protective security
activities, community safety activities, road safety activities and verifying
identity. Given these broad purposes, it appears that the range of information
that could be subject to collection, disclosure and use is extensive. As noted
above, driver licence photographs will be subject to the Hub and so the Hub
will include personal information of a large number of the adult population. As
such, it is unclear that restricting the Department of Home Affairs'
authorisation to these purposes is sufficient to ensure that the measure is
adequately circumscribed. Indeed, it appears that the measure may allow, for
example, photographs to be collected from a range of sources. For example, it
appears possible that social media photographs could be used.
1.147 The scope of
historical facial images that will be subject to the Hub is also unclear. In
this respect, while the Identity Matching Bill contains a number of offence
provisions relating to unauthorised access and disclosure, there is still a
further concern about whether the Hub will provide adequate and effective
protection against misuse in respect of vulnerable groups. For example, it is
unclear the extent to which there are specific safeguards for survivors of
domestic or gender-based violence who may have changed their identity and to
protect against the risks of unintended consequences. If historical facial
images are available, it is also possible that it may reveal that a person has
undergone a change in gender identity particularly as identification information
is defined to include current or former sex or gender identities.[138] This may also engage the right to equality and non-discrimination.
1.148
More generally, it is noted that international human rights case law has
raised concerns as to the compatibility of biometric data retention programs
with the right to privacy. In S and Marper v United Kingdom, the
European Court of Human Rights held that laws in the United Kingdom that
allowed for fingerprints, cellular samples and DNA profiles to be indefinitely
retained despite the affected persons being acquitted of offences was
incompatible with the right to privacy. The court expressed particular concern
about the 'indiscriminate and open-ended retention regime' which applied the
same retention policy to persons who had been convicted to those who had been
acquitted.[139] The court considered that the 'blanket and indiscriminate nature of the powers
of retention' failed to strike 'a fair balance between the competing public and
private interests'.[140]
1.149
Similarly, the United Kingdom (UK) Court of Appeal in Wood v
Commissioner of Police for the Metropolis,[141] concluded that the retention of photographs which had been taken by police
of a person in circumstances where the person had not committed any criminal
offence had a disproportionate impact on the right to privacy under the UK Human
Rights Act.[142] Collectively, these authorities suggest that the indiscriminate retention
of a person's data (including biometric information and photographs) may not be
a proportionate limitation on the right to privacy. In relation to accessing
biometric information, the UK Courts have recently found that data retention
and access programs were inconsistent with the right to privacy in the context
of European Union (EU) law to the extent the objective pursued by that access
was not strictly limited solely to fighting serious crime and where access was
not subject to prior review by a court or independent administrative authority.[143] The interpretation of the human right to privacy under the European Convention
of Human Rights and the EU Charter of Fundamental Rights in those cases is
instructive in informing Australia's international human rights law obligations
in relation to the corresponding right to privacy under the ICCPR.
1.150
Further, some of the identity matching services under the Identity
Matching Bill appear to have a more extensive impact on the right to privacy
than others. For example, as noted above, the FIS would allow images of unknown
individuals to be searched and matched against government repositories of
facial images through the Hub. This particular identity matching service raises
specific concerns given the scope of its potential impact on the right to
privacy. It may not only reveal the identity of the individual but, depending on
the circumstances, may reveal who a person is in contact with, when and where. For example,
this could be the case with matching unidentified CCTV images of people with
facial images held by government agencies. This in turn could potentially allow
conclusions to be drawn about the person's political opinions, sexual habits,
religion or medical concerns. This also raises concerns about whether such a
measure could engage other human rights such as the right to freedom of
association and the right to freedom of expression. In this context, it appears
that the FIS may not be the least rights restrictive approach to achieve the
stated objectives particularly noting that the facial images of the vast
majority of adult Australians will be searchable through the Hub.
Committee comment
1.151
The preceding analysis raises questions as to whether the identity
matching services which will be facilitated by the Interoperability Hub (the
Hub) and the National Driver Licence Facial Recognition Solution (NDLFRS) are a
proportionate limitation on the right to privacy.
1.152
The committee requests the advice of the Minister for Home
Affairs as to whether the limitations on the right to privacy contained in the
Identity Matching Bill are reasonable and proportionate measures to achieve the
stated objective. This includes information in relation to:
- whether the provisions in the Identity Matching Bill governing
access to facial images and other biometric data are sufficiently
circumscribed for each of the identity matching services;
- whether the Privacy Act 1988 (Privacy Act) will apply to
the operation of the Hub and, if so, whether it will act as an adequate and
effective safeguard noting the various exceptions to the collection, use and
disclosure of information under the Privacy Act;
- whether the Identity Matching Bill contains adequate and
effective safeguards for the purposes of international human rights law;
- whether, in light of the number, types and sources of facial
images and other biometric data that may be collected, accessed, used and
disclosed through the Hub and the NDLFRS, these measures are the least rights
restrictive approach (including whether having facial images of the vast
majority of Australians searchable via the Hub is the least rights restrictive
approach and whether there are restrictions as to the sources from which
facial images may be collected);
- whether the measures are a proportionate limitation on the right
to privacy with reference to the potential relevance of international
jurisprudence such as that outlined at [1.148] – [1.149];
-
the extent to which historical facial images will be subject to
the Hub, and whether the Identity Matching Bill provides adequate and effective
protection against misuse and in respect of vulnerable groups; and
- in relation to the Face Identification Service (FIS), whether
allowing images of unknown individuals to be searched and matched against
government repositories of facial images through the Hub is the least rights
restrictive approach to achieve the stated objective.
Department of Foreign Affairs and Trade participation in identity matching
services
1.153
The Australian Passports Amendment (Identity-Matching Services) Bill
2018 (the Passport Amendment Bill) seeks to amend the Australian Passports
Act 2005 (Passports Act) to insert an additional purpose for the use and
disclosure of personal information. Specifically, the Passport Amendment Bill
would authorise the Department of Foreign Affairs and Trade (DFAT) to
participate in a specified service to share and match information relating to
the identity of a person.[144] It would also provide that the minister may arrange for the use of computer
programs to make decisions or exercise powers under the Passports Act.[145]
Compatibility of the measure with
the right to privacy
1.154
Permitting the minister to authorise DFAT to participate in the identity
matching services and thereby share and match identity information, engages and
limits the right to privacy. According to the statement of compatibility, the types
of information to be disclosed and matched include biographic details such as
names, dates of birth and gender as well as facial images.[146]
1.155
The statement of compatibility acknowledges that the measure engages and
limits human rights but argues that this limitation is permissible.[147] It argues that the measure is 'pursuing the legitimate objective of making fast
and secure identity verification available to support a range of identity-check
processes'.[148] This would appear to be a description of the process the measure will
facilitate rather than why this process pursues a legitimate objective for the
purposes of international human rights law. For a limitation on a right to seek
to achieve a legitimate objective, it must be demonstrated that the objective is
one that addresses an area of public or social concern that is pressing and
substantial enough to warrant limiting the right. In this respect, the
statement of compatibility goes on to state the services will provide a tool in
support of the legitimate objective of 'combatting identity crime and
supporting national security, law enforcement and community safety'.[149] As set out above, these are likely to be legitimate objectives for the purposes
of international human rights law. It also appears that the measure is
rationally connected to these objectives.
1.156
However, as outlined above at [1.140]-[1.150], there are serious
questions about the proportionality of the limitation the identity matching
services impose on the right to privacy. These concerns apply equally in
relation to DFAT sharing and matching personal information through such
services.
1.157
Additionally, the measure will authorise the sharing and matching of DFAT's
repositories of personal information including passport photographs and
biographic information. This means that the photographs and biometric data of a
significant proportion of the population including children will be subject to
the identity matching services through the Hub. There is a serious question as
to whether having databases of, and facilitating access to, facial images of a
very significant portion of the population in case they are needed is the least
rights restrictive approach to achieving the stated objectives of the measure.
1.158
Beyond stating that there will be policy and administrative safeguards,
the statement of compatibility provides limited information as to the nature of
any safeguards that will be in place with respect to DFAT sharing personal
information via the identity matching services. Accordingly, it is unclear
whether there are adequate and effective safeguards in place to ensure that the
limitation on human rights is proportionate or that the measure is sufficiently
circumscribed.
Committee comment
1.159
The preceding analysis raises questions as to whether authorising the
Department of Foreign Affairs and Trade (DFAT) to participate in the identity
matching services and thereby share and match identity information is a
proportionate limitation on the right to privacy.
1.160
The committee requests the advice of the Minister for Foreign
Affairs as to whether the limitation on the right to privacy by the measures in
the Passport Amendment Bill are a reasonable and proportionate measure to
achieve the stated objective. This includes information in relation to:
- whether the Privacy Act 1988 (Privacy Act) will apply to
DFAT's disclosure of photographs and biographical information and, if so,
whether it will act as an adequate and effective safeguard for the purposes of
international human rights law noting the various exceptions to the collection,
use and disclosure of information under the Privacy Act;
- whether the Passport Amendment Bill contains adequate and
effective safeguards and is sufficiently circumscribed for the purposes of
international human rights law;
- whether, in light of the number, types and sources of facial
images and other biometric data that may be shared and matched, these measures
represent the least rights restrictive approach to achieving the stated
objectives (including whether having facial images of the vast majority of
Australians searchable via the identity matching services is the least rights
restrictive approach);
- whether the measure is a proportionate limitation on the right to
privacy with reference to the potential relevance of international
jurisprudence such as that outlined at [1.148]-[1.149];
-
the extent to which DFAT's historical facial images will be
subject to the identity matching services, and whether the Passport Amendment
Bill or other Australian laws provide adequate and effective protection against
misuse and in respect of vulnerable groups; and
- in relation to the Face Identification Service (FIS), whether
allowing images of unknown individuals to be searched and matched against DFAT
facial images through the Hub is the least rights restrictive approach to
achieve the stated objective.
Intelligence Services Amendment (Establishment of the Australian Signals
Directorate) Bill 2018
Purpose |
Amends the Intelligence
Services Act 2001 to establish the Australian Signals Directorate (ASD)
as an independent statutory agency within the Defence portfolio reporting
directly to the Minister for Defence; amend ASD's functions to include providing
material, advice and other assistance to prescribed persons or bodies, and
preventing and disrupting cybercrime; and give the Director-General powers to
employ persons as employees of ASD. Also makes a range of consequential
amendments to other Acts, including to the Anti-Money Laundering and
Counter-Terrorism Financing Act 2006 to provide that the Director-General
of ASD may communicate AUSTRAC information to a foreign intelligence agency if
satisfied of certain matters |
Portfolio |
Defence |
Introduced |
House of representatives,
15 February 2018 |
Rights |
Privacy; life; freedom from
torture, cruel, inhuman or degrading treatment or punishment; just and
favourable conditions at work (see Appendix 2) |
Status |
Seeking additional
information |
Communicating AUSTRAC information to foreign intelligence agencies
1.161
Proposed section 133B of the Anti-Money Laundering and
Counter-Terrorism Financing Act 2006 (AMLCT Act) provides that the
Director-General of the Australian Signals Directorate (ASD) may communicate Australian
Transaction Reports and Analysis Centre (AUSTRAC) information[150] to a foreign intelligence agency if satisfied of certain matters[151] and may authorise an ASD official to communicate such information on their
behalf.
Compatibility of the measure with
the right to privacy
1.162
The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information,
particularly the use and sharing of such information and the right to control
the dissemination of information about one's private life. As AUSTRAC
information may include a range of personal and financial information, the
disclosure of this information to foreign intelligence agencies engages and
limits the right to privacy.
1.163
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. However, the statement
of compatibility for the Intelligence Services Amendment (Establishment of the
Australian Signals Directorate) Bill 2018 (the bill) does not acknowledge this
limitation on the right to privacy so does not provide an assessment as to
whether the limitation is permissible in accordance with the committee's Guidance
Note 1.
Committee comment
1.164
The preceding analysis raises questions as to whether the measure
is compatible with the right to privacy.
1.165
The committee therefore requests the 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 whether the measure is
sufficiently circumscribed and whether there are adequate and effective
safeguards in relation to the operation of the measure).
Compatibility of the measure with
the right to life and the prohibition on torture, cruel, inhuman, degrading
treatment or punishment
1.166
Under international human rights law every human being has the inherent
right to life, which should be protected by law. The right to life imposes an
obligation on state parties to protect people from being killed by others or from
identified risks. While the International Covenant on Civil and Political
Rights (ICCPR) does not completely prohibit the imposition of the death penalty,
international law prohibits states which have abolished the death penalty (such
as Australia) from exposing a person to the death penalty in another nation
state.
1.167
As the United Nations (UN) Human Rights Committee has made clear, this
prohibits the provision of information to other countries that may be used to
investigate and convict someone of an offence to which the death penalty
applies. In this context, the UN Human Rights Committee stated in 2009 its concern
that Australia lacks 'a comprehensive prohibition on the providing of
international police assistance for the investigation of crimes that may lead
to the imposition of the death penalty in another state', and concluded that
Australia should take steps to ensure it 'does not provide assistance in the
investigation of crimes that may result in the imposition of the death penalty
in another State'.[152]
1.168
The sharing of information internationally with foreign intelligence
agencies could accordingly engage the right to life. This issue was not
addressed in the statement of compatibility.
1.169
A related issue potentially raised by the measure is the possibility
that sharing of information may result in torture, or cruel, inhuman or
degrading treatment or punishment. Under international law the prohibition on torture
is absolute and can never be subject to permissible limitations.[153] This issue was also not addressed in the statement of compatibility.
Committee comment
1.170
In relation to the right to life, the committee seeks the advice
of the minister about the compatibility of the measure with this right
(including the existence of relevant safeguards).
1.171
In relation to the prohibition on torture, or cruel,
inhuman or degrading treatment or punishment, the committee seeks the advice of
the minister in relation to the compatibility of the measure with this right
(including any relevant safeguards).
Operation outside the Public Service Act
1.172
The bill proposes that ASD will operate outside the Public Service
Act 1999 (PS Act) in relation to the employment of staff. Proposed section
38A of the Intelligence Services Act 2001 provides that the
Director-General of ASD may employ such employees of ASD as the
Director-General thinks necessary and may determine the terms and conditions on
which employees are to be employed.[154] Further, the Director-General may, at any time, by written notice, terminate
the employment of such a person.[155]
Compatibility of the measure with
just and favourable conditions at work
1.173
The right to work and rights in work are protected by articles 6(1), 7
and 8(1)(a) of the International Covenant on Economic, Social and Cultural
Rights (ICESCR).[156]
1.174
The UN Committee on Economic, Social and Cultural Rights has stated that
the obligations of State parties to the ICESCR in relation to the right to work
include the obligation to ensure individuals their right to freely chosen or
accepted work, including the right not to be deprived of work unfairly,
allowing them to live in dignity. The right to work is understood as the right
to decent work providing an income that allows the worker to support themselves
and their family, and which provides safe and healthy conditions of work.[157]
1.175
The PS Act contains a range of provisions in relation to the
terms and conditions of employment of public servants. By providing that the PS
Act does not apply and that the Director-General may engage staff, set their
conditions of employment through determinations and terminate their employment,
the measure engages and may limit the right to just and favourable conditions
at work.
1.176
The statement of compatibility acknowledges that the measure engages
this right and argues that it pursues the objective of providing 'ASD with
greater flexibility to recruit, retain, develop and remunerate its specialist
staff'.[158] While the statement of compatibility points to some information as to why this
objective may address a pressing and substantial concern, further information
would have been useful. It is unclear, for example, how the PS Act operates as
a barrier to the recruitment and retention of appropriate staff. It is also
unclear why this could not be addressed through the negotiation of entitlements
through the usual enterprise agreement process.
1.177
Further, there is no specific information provided as to how the measure
is rationally connected to (that is, effective to achieve) this stated
objective.
1.178
Additionally, there are a number of questions about the proportionality
of the measure. In this respect, the measure as proposed does not provide for
minimum levels of entitlements or working conditions.
1.179
Currently, Australian Public Service (APS) employees are generally employed
under relevant enterprise agreements which set out terms and conditions of employment.
In this respect, it is unclear whether current APS employees who become
employees of the ASD could be worse off under the measure. While the statement
of compatibility points to the availability of some potential safeguards, it is
unclear whether they are sufficient given the potential breadth of the
Director-General's powers.
Committee comment
1.180
The preceding analysis raises questions as to whether the measure
is compatible with the right to just and favourable conditions at work.
1.181
The committee therefore seeks the advice of the minister as to:
- whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
- how the measure is effective to achieve (that is, rationally
connected to) that objective; and
- whether the limitation is a reasonable and proportionate
measure to achieve the stated objective.
Legislation (Deferral of Sunsetting—Australian Crime Commission
Regulations) Certificate 2017 [F2017L01709]
Purpose |
Defers the date of
automatic repeal ('sunsetting') of the Australian Crime Commission
Regulations 2002 by 12 months, from 1 April 2018 to 1 April 2019 |
Portfolio |
Attorney-General |
Authorising legislation |
Legislation Act 2003 |
Last day to disallow |
Exempt from disallowance[159] |
Right[s] |
Privacy; liberty; effective
remedy; fair trial and fair hearing; prohibition
against torture, cruel, inhuman or degrading treatment or punishment (see Appendix
2) |
Status |
Seeking additional
information |
Background
1.182
The Australian Crime Commission Regulations 2002 (ACC regulations) are
scheduled to sunset, that is, be automatically repealed, on 1 April 2018. This
certificate defers the sunsetting date for 12 months, to 1 April 2019.[160]
1.183
While the certificate of deferral does not amend the current ACC
regulations, the certificate has the effect of continuing their operation for a
further 12 months. Accordingly, the committee is obliged to provide an
assessment as to the compatibility of the certificate with human rights. This
includes an assessment of the potential impact of the extension of the
operation of the ACC regulations.
1.184
While the Attorney-General is not required to provide a statement of
compatibility for this instrument,[161] where a legislative instrument engages human rights, including by continuing
the effect of measures that engage rights, it is good practice for an
assessment to be provided as to human rights compatibility.
Conferral of powers under state laws
1.185
Section 55A of the Australian Crime Commission Act 2002 (ACC Act)
provides Commonwealth legislative authority for the conferral by the states[162] of certain duties, functions or powers on the Australian Criminal Intelligence
Commission (ACIC),[163] members of its board or staff, or a judge of the Federal Court or Federal
Circuit Court. These may include duties, functions or powers of a kind
specified in relevant regulations.
1.186
Section 8A and schedules 3, 4 and 5 of the ACC regulations prescribe
provisions of state and territory laws for the purpose of section 55A. These
include:
- under subsection 8A(1), duties, functions or powers provided in
19 provisions of state and territory Acts and regulations, specified in
schedule 4, which may be conferred on the Commission; and
- under subsection 8A(2), duties, functions or powers provided in
305 provisions of state and territory Acts and regulations, specified in
schedule 3, which may be conferred on the Commission's CEO, a member of its
staff, the Chair or a member of its Board.
1.187
In each instance, the relevant duties, powers or functions may be
conferred on the ACIC, members of its board or staff or federal judges for the
purposes of, or in relation to, the investigation of a matter or the
undertaking of an intelligence operation relating to a relevant criminal
activity,[164] in so far as the relevant crime is, or includes, an offence or offences against
a state law, whether or not that offence or those offences have a federal
aspect.
Compatibility of the measure with
multiple human rights
1.188
The right to privacy prohibits arbitrary or unlawful interferences with
an individual's privacy, family, correspondence or home. This includes
informational privacy, the right to personal authority and physical and
psychological integrity, and prohibitions on unlawful and arbitrary state
surveillance or interference with a person's home or workplace.
1.189
The right to liberty of the person is a procedural guarantee not to be
arbitrarily and unlawfully deprived of liberty.
1.190
The right to a fair trial and a fair hearing encompasses notions of the
fair administration of justice and prohibits investigatory techniques that
incite individuals to commit a criminal offence.[165]
1.191
Australia is also required to ensure that those whose human rights are
violated have access to an effective remedy, notwithstanding that the violation
has been committed by persons acting in an official capacity.
1.192
It appears that some of the provisions set out in schedules 3 and 4 to
the Regulations, allowing the conferral of powers under state laws on the
Commission, its board or staff, engage the right to privacy, the right to
liberty, the right to a fair trial and a fair hearing, or the right to an effective
remedy, and may engage other human rights. These include provisions relating to
criminal intelligence operations, use of assumed identities by law enforcement
personnel, use of surveillance devices, witness protection, and spent
convictions.
1.193
For example, schedule 3 allows the conferral of powers on the CEO or
staff of the ACIC under a number of provisions of the New South Wales Law
Enforcement (Controlled Operations) Act 1997 (NSW Act). This
includes the power under section 13 of the NSW Act to engage in
'controlled activities' when part of an authorised 'controlled operation',[166] which may be conferred on any member of staff of the ACIC. Controlled
activities are activities which, but for section 16 of the NSW Act, would be
unlawful. Section 16 provides that any activity engaged in by a participant in
an authorised operation, and in accordance with the authority for the
operation, is not unlawful and does not constitute an offence or corrupt
conduct despite any other Act or law.
1.194
As such, where that power is conferred, it would allow any member of the
ACIC's staff, given the authority, to commit an otherwise unlawful act.
Schedule 3 also permits the conferral on the CEO of the ACIC of the power,
under subsection 14(1) of the NSW Act, to grant (or refuse) retrospective
authority for controlled activities.
1.195
While there appear to be some safeguards in relation to the controlled
operations,[167] by allowing a broad range of activities that would otherwise be unlawful, these
provisions could have a significant impact on various rights, including (but
not restricted to) the right to liberty, the right to a fair trial and a fair
hearing, the right to privacy and the right not to be subject to torture,
cruel, inhuman or degrading treatment or punishment. The provisions may also
prevent a person from seeking an effective remedy where his or her rights have
been violated, insofar as a participant in a controlled operation is granted
protection from criminal liability.
1.196
Another example is the prescription of powers under South Australia's Listening
and Surveillance Devices Act 1972 (SA Act).[168] Schedule 3 of the ACC regulations enables the conferral of powers on a staff or
board member of the ACIC under section 7 of the SA Act to use listening devices
to overhear, record, monitor or listen to private conversations without the
consent of the parties, and in certain circumstances to disclose the
information derived from their use. Powers are also able to be conferred under
section 9 of the SA Act including, in subsection 9(2), powers to break into,
enter and search any premises; stop, detain and search a vehicle; and detain
and search any person; where an officer suspects on reasonable grounds that an
unauthorised listening device is being held. Use of these powers would engage
and limit the right to privacy of individuals subject to searches or
surveillance, including respect for the privacy of a person's home, workplace
and correspondence. The provision for the detention of persons also engages and
limits the right to liberty.
1.197
It is noted that some of the powers prescribed in schedule 3 of the ACC
regulations appear to be accompanied by certain duties which may act as
safeguards on the use and scope of the power. However, there is no obligation
in the ACC regulations requiring that where powers are conferred, the
corresponding duties must be conferred along with them. It is unclear whether
very broad powers could be conferred on the ACIC or its staff, without the
safeguards contained in the original state or territory legislation.
1.198
In schedule 4, several powers are prescribed relating to the receipt or
disclosure of information, which may include personal information. These
include powers to receive information under subsection 11(1) of the First Home
Owner Grants Regulation 2000 (WA), subsection 37(d) of the Gambling and
Racing Control Act 1999 (ACT), and subsection 97(d) of the Taxation
Administration Act 1999 (ACT); and the power to disclose information about
spent convictions under subsection 17(3) of the Spent Convictions Act 2000 (ACT).
Once again, these powers engage and limit the right to informational privacy.
1.199
Limitations on human rights may be permissible where the measure pursues
a legitimate objective, is effective to achieve (that is, rationally connected
to) that objective, and is a proportionate means of achieving that objective.
1.200
However, no information is provided in the explanatory statement to the
certificate about the human rights engaged by (the continued operation of)
subsections 8A(1) and (2) and schedules 3 and 4 of the ACC regulations. As
stated above, while a statement of compatibility is not required for this
instrument, where a legislative instrument engages human rights, including by
continuing the effect of measures that appear to engage rights, it is good practice
for an assessment to be provided as to their human rights compatibility. In the
absence of further information, it is not possible to conclude that the
instrument is compatible with human rights.
Committee comment
1.201
The measure appears to engage and limit a range of human rights.
The preceding analysis raises questions as to whether the measure is compatible
with human rights.
1.202
The committee therefore seeks the advice of the Attorney-General
as to:
- the human rights engaged by subsections 8A(1) and (2) and schedules
3 and 4 of the ACC regulations;
- where these measures engage and limit human rights:
- whether the measure is aimed at achieving a legitimate
objective for the purposes of human rights law;
- how the measures are effective to achieve (that is, rationally
connected to) a legitimate objective; and
- whether the limitations are reasonable and proportionate to
achieve that objective; and
- whether it would be feasible to amend the ACC regulations, when
remade, to require that any state powers conferred on the ACIC or its personnel
which limit human rights will only be exercisable where accompanied by the
conferral of the corresponding duties and safeguards in the relevant state law.
Collection and use of 'national policing information'
1.203
Subsection 4(1) of the ACC Act defines 'national policing information'
as information that is collected by the Australian Federal Police, a state
police force, or a body prescribed by the regulations, and is of a kind prescribed
by the regulations.
1.204
Section 2A of the ACC regulations prescribes eight bodies (listed in
schedule 1A) that collect 'national policing information', and prescribes the
kind of national policing information collected as information held under, or
relating to the administration of, 24 specified databases or electronic
systems.
1.205
Section 9A of the ACC regulations prescribes six organisations to which
national policing information may be disclosed by the CEO of the ACIC, without
requiring the approval of the board, in addition to those specified in the ACC
Act.[169]
Compatibility of the measure with
the right to privacy
1.206
As set out above, 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.
1.207
As national policing information is likely to include private,
confidential and personal information, its collection, use and disclosure by
the ACIC engages and limits the right to privacy.
1.208
The committee previously examined the human rights implications of this
measure in relation to the right to privacy in its Report 7 of 2016 and Report
8 of 2016.[170] The committee sought advice as to whether the limitation was a reasonable and
proportionate measure for the achievement of its stated objective, and in
particular, whether there were sufficient safeguards in place to protect the
right to privacy, noting in particular that the ACIC is not subject to the Privacy
Act 1988 (Privacy Act).
1.209
In response, the then Minister for Justice agreed that the collection
and disclosure of national policing information engages and limits the right to
privacy, but stated that the limitation was reasonable and proportionate to
achieving the objective of enabling the ACIC to fulfil its functions. The
minister advised that the ACC Act provided sufficient safeguards to protect the
right to privacy, and that the ACIC also had technical and administrative mechanisms
in place to ensure that national policing information is collected, used and
stored securely.
1.210
The minister noted that while the ACIC is not subject to the Privacy
Act, the ACIC is experienced in the appropriate handling of sensitive
information, and has safeguards and accessibility mechanisms specifically
designed for the sensitive nature of its operations. The minister advised that
the ACIC was in the process of preparing an information handling protocol
addressing the way it would treat personal information.
1.211
On this basis, the previous human rights analysis in the committee's
report stated that the legislative and administrative safeguards outlined in
the minister's response were likely to improve the proportionality of the
limitation on the right to privacy resulting from the collection, use and
disclosure of national policing information, and may ensure that the measure
would only impose proportionate limitations on this right. Nonetheless, the
committee considered it difficult to reach a conclusion that the measure was
compatible with human rights without the detail of the information handling
protocol being available. The committee requested that a copy of the
information handling protocol be provided to the committee once it was
finalised.
1.212
However, the committee has not to date received a copy of that document,
and it does not appear to be publicly available. No information is provided in
the explanatory statement to this certificate of deferral about the engagement
of the right to privacy by the (continued operation of) this measure.
Committee comment
1.213
The measure engages and limits the right to privacy. The
committee previously concluded, based on information provided by the then
Minister for Justice, that there appear to be relevant safeguards in place that
may assist to ensure that it is a proportionate limit on the right to privacy.
1.214
The committee requests an update from the Attorney-General
regarding the preparation of an information handling protocol by the ACIC, and
reiterates its request that a copy of this document be provided to the
committee.
Disclosure of 'ACC information'
1.215
Sections 9 and 10 and schedules 6 and 7 of the ACC regulations prescribe
5 international organisations, 98 Australian bodies corporate and 38 classes of
body corporate to whom ACC information (defined by section 4 of the Act as
information that is in the ACIC's possession) may be disclosed, in accordance
with sections 59AA and 59AB of the Act.
Compatibility of the measure with
the right to privacy
1.216
As noted above, the right to privacy includes respect for informational
privacy. As ACC information is likely to include private, confidential and
personal information, its disclosure by the ACIC engages and limits the right
to privacy.
1.217
Limitations on the right to privacy may be permissible where the measure
pursues a legitimate objective, is effective to achieve (that is, rationally
connected to) that objective, and is a proportionate means of achieving that
objective.
1.218
However, no information is provided in the explanatory statement to the
certificate of deferral about the engagement of the right to privacy by the
(continued operation of) this measure. As stated above, while a statement of
compatibility is not required for this instrument, where a legislative
instrument engages human rights, including by continuing the effect of measures
that appear to engage rights, it is good practice for an assessment to be
provided as to their human rights compatibility. In the absence of further
information, it is not possible to conclude that the limitations on the right
to privacy are justifiable.
Committee comment
1.219
The measure engages and limits the right to privacy. The
preceding analysis raises questions as to whether the measure is compatible
with that right.
1.220
The committee requests the Attorney-General's advice as to:
- whether the measure is aimed at achieving a legitimate
objective for the purposes of human rights law;
- how the measure is effective to achieve (that is, rationally
connected to) a legitimate objective; and
- whether the limitations are reasonable and proportionate to
achieve that objective.
Migration (IMMI 18/003: Specified courses and exams for registration as a
migration agent) Instrument 2018 [F2017L01708]
Purpose |
Prescribes tertiary courses
that must be completed, and exams that must be passed, in order to register
as a migration agent. Prescribes the English language tests that certain
persons must take in order to register as a migration agent, and the minimum
scores that a person must achieve |
Portfolio |
Home Affairs |
Authorising legislation |
Migration Agents
Regulations 1998 |
Last day to disallow |
15 sitting days after
tabling (tabled Senate and House of Representatives on 5 February 2018) |
Right |
Equality and
non-discrimination (see Appendix 2) |
Status |
Seeking additional
information |
Requirement for certain persons to complete additional English language
exams to register as a migration agent
1.221
Relevantly, section 7(2) of the Migration (IMMI 18/003: Specified
courses and exams for registration as a migration agent) Instrument 2018
[F2017L01708] (the instrument) introduces new language proficiency exams for
persons seeking to register as a migration agent unless specified residency and
study requirements are met. Persons are exempt from language proficiency exams
if they have successfully met specified requirements in Australia, New Zealand,
the United Kingdom, the Republic of Ireland, the United States of America, the
Republic of South Africa or Canada as follows:
- secondary school studies to the equivalent of Australian Year 12
level with minimum 4 years secondary school or equivalent study, and have
successfully completed a Bachelor degree or higher; or
- they have successfully completed the equivalent of secondary
school studies to at least Australian Year 10 with at least 10 years of primary
or secondary schooling, or their secondary school studies and degree; and
- while completing their primary or secondary schooling, or their
secondary school studies and degree, they were resident in one of those
countries.
1.222
If these requirements are not met, then section 8 of the instrument
provides that persons who are required to complete the English-language
proficiency test must achieve:
-
in the International English Language Testing System (IELTS), an
overall score of at least 7, with a minimum score of 6.5 in each component of
the test (speaking, listening, reading and writing); or
-
in the Test of English as a Foreign Language internet-based test
(TOEFL iBT), an overall score of at least 94, with minimum scores of 20 in
speaking and listening, 19 in reading, and 24 in writing.
Compatibility of the measure with
the right to equality and non-discrimination
1.223
The right to equality and non-discrimination provides that everyone is
entitled to enjoy their rights without discrimination of any kind, and that all
people are equal before the law and are entitled without discrimination to the
equal and non-discriminatory protection of the law.
1.224
'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).[171]
The UN Human Rights Committee has described indirect discrimination as 'a rule
or measure that is neutral at face value or without intent to discriminate',
which exclusively or disproportionately affects people with a particular
personal attribute (for example, national origin or language).[172]
1.225
Requiring certain persons to complete an English language proficiency
test to be eligible for registration as a migration agent engages the right to
equality and non-discrimination on the basis of language competency or 'other
status'. It may also indirectly discriminate on the basis of national origin as
it may disproportionately impact individuals from countries where English is
not a national language or widely spoken.
1.226
Further, by providing that persons who completed their education and
were resident in specified countries are not required to undertake a language
proficiency test, the measure may also further indirectly discriminate on the
basis of national origin. This is because it will have a disproportionate
negative effect on individuals from countries that are not excused from the
English language proficiency test requirement. Where a measure impacts on
particular groups disproportionately, it establishes prima facie that
there may be indirect discrimination.[173]
1.227
The statement of compatibility states that the instrument does not
engage any of the applicable rights or freedoms,[174] and so does not provide an assessment of whether the right to equality and
non-discrimination is engaged by the measure.
1.228
Under international human rights law, differential treatment (including
the differential effect of a measure that is neutral on its face) 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.[175]
1.229
The statement of compatibility states that the objective of the
instrument is to 'strengthen the educational qualifications of migration
agents...to ensure that their clients receive high standards of service'.[176] These are likely to be legitimate objectives for the purposes of human rights
law, particularly given the complexities of the Australian migration system and
the potentially serious effect that poor advice can have on individuals.[177]
1.230
Notwithstanding the legitimate objectives of the measure, it is unclear
whether the measure is effective to achieve (that is, rationally connected to)
and proportionate to that objective. In this respect, it is acknowledged that a
level of proficiency in English may be needed to practise effectively as a
migration agent in Australia. Requiring a person either to complete all or part
of their education in English, or to complete an English-language proficiency
test, may therefore be an effective means of ensuring the necessary level of
proficiency.
1.231
However, it is noted that the IELTS and the TOEFL iBT may exceed those requirements
necessary to enter tertiary study.[178] It is unclear from the information provided that merely completing 10 years of
primary and secondary education, to the equivalent of Australian Year 10 level,
would ensure a person possesses a level of English proficiency equivalent to that
of a person who achieves the required IELTS or TOEFL iBT scores. Consequently,
it appears possible that persons who are not educated in Australia, or in
another prescribed country, may be required to meet a potentially higher
standard of English language proficiency than their Australian (or prescribed
country) counterparts in order to be eligible for registration as a migration
agent. This raises concerns as to whether the differential requirements would
be effective to achieve the stated objectives, and whether the differential
requirements are based on reasonable and objective criteria.
1.232
Similarly, it is unclear from the information provided that the
exemption for a person who completed their school education at an institution
in one of the prescribed countries where they were resident is rationally
connected to the stated objective. This is because it is unclear that this
would necessarily ensure the person's proficiency in English at the required
level.
1.233
In relation to the proportionality of the measure, the statement of
compatibility states:
Strengthening educational requirements for the migration
agent industry does not exclude applicants from the profession, provided they
meet the applicable standards, which are reasonable and transparent.[179]
1.234
However, there are questions as to whether the application of these
standards is sufficiently circumscribed with respect to the stated objective of
the measure. For example, the instrument would require a person to complete an
English proficiency test irrespective of whether their education was primarily
in English, if the person did not complete their education in a prescribed
country. For example, English may be the primary language used in an
institution (for example, an international school) in a country that is not a
prescribed country. Further, a number of universities consider that secondary
and tertiary studies completed in English from countries that are not listed in
the instrument satisfy the English proficiency requirements necessary for entry
into the migration law program.[180] This raises questions as to whether requiring a person who was educated
primarily in English to also sit a proficiency test is the least
rights-restrictive means of achieving the stated objectives of the measure.
Committee comment
1.235
The preceding analysis raises questions as to whether the measure
is compatible with the right to equality and non-discrimination. Accordingly,
the committee requests the advice of the minister as to:
- how the measures are effective to achieve (that is, rationally
connected to) the stated objectives; and
- whether the measures are reasonable and proportionate to
achieving the stated objectives of the instrument (including how the measures
are based on reasonable and objective criteria, whether the measures are the
least rights-restrictive way of achieving the stated objective and the
existence of any safeguards).
Social Services Legislation Amendment (Encouraging Self-sufficiency for
Newly Arrived Migrants) Bill 2018
Purpose |
Amends the Social
Security Act 1991 to increase the newly arrived resident's waiting period
from 104 weeks to 156 weeks for certain social security payments and
concession cards; introduce a newly arrived resident's waiting period of 156
weeks for bereavement allowance, widow allowance, parenting payment and carer
allowance; and make a technical amendment; amends the Farm Household
Support Act 2014 to increase the newly arrived resident's waiting period
from 104 weeks to 156 weeks; amends the A New Tax System (Family
Assistance) Act 1999 and Social Security Act 1991 to introduce a newly
arrived resident's waiting period of 156 weeks for family tax benefit; and amends
the Paid Parental Leave Act 2010 to introduce a newly arrived
resident's waiting period of 156 weeks for parental leave pay and dad and
partner pay |
Portfolio |
Social Services |
Introduced |
House of representatives,
15 February 2018 |
Rights |
Social security; adequate
standard of living; women's rights (see Appendix 2) |
Status |
Seeking additional
information |
Background
1.236
The committee has considered the human rights implications of a waiting
period for classes of newly arrived residents to access social security
payments on a number of occasions.[181]
Newly arrived resident's waiting period for social security payments
1.237
The Social Services Legislation Amendment (Encouraging Self-sufficiency
for Newly Arrived Migrants) Bill 2018 (the bill) would increase the waiting
period for newly arrived residents to access a range of social security
payments including bereavement allowance, widow allowance, parenting payment,
carer allowance, farm household allowance, family tax benefit, parental leave
pay and dad and partner pay from 104 weeks (2 years) to 156 weeks (3 years).[182] It will also extend the waiting period to access the low income Health Care
Card (HCC) and Commonwealth Seniors Card from 104 weeks (2 years) to 156 weeks
(3 years).
Compatibility of the measure with
the right to social security, the right to an adequate standard of living and
the right to health
1.238
The right to social security recognises the importance of adequate social
benefits in reducing the effects of poverty and plays an important role in
realising many other economic, social and cultural rights, particularly the
right to an adequate standard of living and the right to health.[183] The right to an adequate standard of living requires state parties to take
steps to ensure the availability, adequacy and accessibility of food, clothing,
water and housing for all people in Australia, and also imposes on
Australia the obligations listed above in relation to the right to social
security.[184]
1.239
Australia has obligations to progressively realise these rights and also
has a corresponding duty to refrain from taking retrogressive measures, or
backwards steps.[185] Retrogressive measures, a type of limitation, may be permissible under
international human rights law providing that they address a legitimate
objective, are rationally connected to that objective and are a proportionate
way to achieve that objective.
1.240
Extending the waiting period to three years (from the current two years)
further restricts access to social security (including health care cards) for
newly arrived residents. Accordingly, the measure constitutes a retrogressive
measure, a type of limitation, in the realisation of the right to social
security, the right to an adequate standard of living and the right to health.
1.241
The statement of compatibility acknowledges that the measure engages the
right to social security and states that:
Given the current fiscal environment...three years is a
reasonable period to expect new permanent migrants to support themselves and
their families when they first settle in Australia. This will reduce the burden
placed on Australia’s welfare payments system and improve its long-term sustainability.[186]
1.242
In general terms, budgetary constraints and financial sustainability
have been recognised as a legitimate objective for the purpose of justifying
reductions in government support that impact on the progressive realisation of
economic, social and cultural rights. However, the United Nations Committee on
Economic, Social and Cultural Rights has explained that any retrogressive
measures:
...require the most careful consideration and would need to be
fully justified by reference to the totality of the rights provided for in the
Covenant [ICESCR] and in the context of the full use of the maximum available
resources.[187]
1.243
In this respect, limited information has been provided in the statement
of compatibility to support the characterisation of financial sustainability or
budgetary constraints as a pressing or substantial concern in these specific
circumstances. If this were a legitimate objective for the purposes of
international human rights law, reducing government spending through this
measure may be capable of being rationally connected to this stated objective.
1.244
In relation to the proportionality of the limitation, the statement of
compatibility explains that there will be a range of exemptions from the
waiting period. These include exemptions for humanitarian migrants, New Zealand
citizens on a Special Category visa, and holders of certain temporary visas,
including temporary protection visas and Safe Haven Enterprise Visas, to be
able to immediately access family tax benefit payments, parental leave pay and
dad and partner pay.[188] It is relevant to the proportionality of the limitation that certain classes of
visa holders will be able to access a number of social security payments.
1.245
The statement of compatibility explains that there will also be a
provision for migrants who become lone parents after becoming an Australian
resident, to access social security payments:
Migrants who become a lone parent after becoming an
Australian resident will continue to be exempt from the waiting period for
parenting payment, newstart allowance and youth allowance. Those who receive an
exemption from the waiting period for one of these payments will also be exempt
from the waiting period for FTB [family tax benefit]. Those who subsequently
have a new child will also be able to transfer to PLP [parental leave pay] or
DaPP [dad and partner pay] if they are otherwise qualified. This ensures that
parents who lose the support – financial and otherwise – of a partner have
access to support for themselves and their children.[189]
1.246
The statement of compatibility further explains that the availability of
Special Benefit social security payments are an additional safeguard in
relation to the measure:
...migrants who experience a substantial change in
circumstances after the start of their waiting period, and are in financial
hardship, will continue to be exempt from the waiting period for special
benefit. Special benefit is a payment of last resort that provides a safety net
for people in hardship who are not otherwise eligible for other payments. Those
who receive this exemption and have dependent children will also be exempt from
the waiting period for FTB. Consistent with established policy (contained in
the Guide to Social Security Law) this may include migrants:
- who are the victim of domestic or family violence;
- who experience a prolonged injury or illness and are unable to
work, or whose partner or sponsor does;
- whose dependent child develops a severe medical condition,
disability or injury; or
- whose sponsor or partner dies, becomes a missing person or is
imprisoned leaving the migrant with no other means of support.
These exemptions ensure that there continues to be a safety
net available for potentially vulnerable individuals and families who are
unable to support themselves despite their best plans.
1.247
The Special Benefit appears to provide an important safeguard such that
these individuals could afford the basic necessities to maintain an adequate
standard of living in circumstances of financial hardship. This is of
considerable importance in relation to the proportionality of the limitation.
1.248
However, increasing the waiting period to access social security for
newly arrived residents generally from two years to three years is still a
considerable reduction in the availability of social security. In this respect,
it would be useful for further information to be provided about any
consideration of alternatives to reducing access to social security, in the
context of Australia's use of its maximum available resources.
Committee comment
1.249
The preceding analysis raises questions as to the compatibility
of the measure with the right to social security and the right to an adequate
standard of living.
1.250
The committee therefore seeks the advice of the minister as to:
- whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern in the
specific circumstances of the proposed legislation;
- how the measure is effective to achieve (that is, rationally connected
to) that objective;
- whether the limitation is a reasonable and proportionate
measure to achieve its stated objective (including the extent of the reduction
in access to social security payments; what level of support Special Benefit
payments provide; and whether the measure is the least rights restrictive
approach); and
- whether alternatives to reducing access to social security, in
the context of Australia's use of its maximum available resources, have been
fully considered.
Compatibility of the measure with
the right to maternity leave
1.251
The right to maternity leave is protected by article 10(2) of the International
Covenant on Economic, Social and Cultural Rights (ICESCR) and article 11(2)(b)
of the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW)[190] and includes an entitlement for parental leave with pay or comparable social
security benefits for a reasonable period before and after childbirth.
1.252
The UN Committee on Economic, Social and Cultural Rights has further
explained that the obligations of state parties to the ICESCR in relation to
the right to maternity leave include the obligation to guarantee 'adequate
maternity leave for women, paternity leave for men, and parental leave for both
men and women'.[191] By extending the waiting period for access to parental leave pay and dad and
partner pay, the measure engages and limits this right.
1.253
In restricting the paid maternity leave support available to newly
arrived migrants for a further year (bringing the total waiting period to three
years), the measure is a retrogressive measure, a type of limitation, for the
purposes of international human rights law.
1.254
As noted above, limitations on human rights may be permissible under
international human rights law providing that they address a legitimate
objective, are rationally connected to that objective and are a proportionate
way to achieve that objective.
1.255
The statement of compatibility acknowledges that the measure engages the
right to paid maternity leave but appears to argue that this limitation is
permissible. However, limited information or reasoning has been provided as to whether
the objectives of ensuring financial sustainability or budgetary constraints
address a pressing or substantial concern in these specific circumstances. As
noted above, reducing government spending through this measure would appear to
be rationally connected to this stated objective.
1.256
In relation to the proportionality of the limitation, the statement of
compatibility states:
While it is acknowledged that the upbringing of children
requires a sharing of responsibility between men and women and society as a
whole, it is reasonable to expect that migrants who make the decision to have a
child during their initial settlement period should also allow for the costs of
supporting themselves and their children during the waiting period.
The Australian welfare system is targeted so that those who
most need help receive it. In order to sustain this, those who can support
their children are expected to do so.[192]
1.257
However, this does not fully take into account that the timing of having
children and a consequential need for paid maternity leave may not necessarily
be something that is fully in the hands of potential parents. Noting that the
measure applies to a range of visas, it also does not explain why newly arrived
residents would necessarily be in a better position to adequately support the
costs of having children than other individuals.
1.258
The statement of compatibility further explains in relation to the
proportionality of the measure that there is a transitional period so that
migrants who may have a baby born between 1 July 2018 and 1 January 2019 will
still be able to access paid parental leave. While having a transitional period
may be an important safeguard ensuring expectant parents who had planned care
arrangements around the existing parental leave provisions would not be
affected by the changes, it does not address broader concerns.
1.259
It is noted that increasing the waiting period to access paid parental
leave from two years to three years is a considerable reduction in the
availability of parental leave pay and dad and partner pay. It may have
particularly significant consequences for those who have no access to other
paid parental leave arrangements through their employer. In this respect, it
would be useful for further information to be provided about any consideration
of alternatives to reducing access to social security, in the context of
Australia's use of its maximum available resources.
Committee comment
1.260
The preceding analysis raises questions as to the compatibility
of the measure with the right to paid parental leave.
1.261
The committee therefore seeks the advice of the minister as to:
- whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern in the
specific circumstances of the proposed legislation;
- how the measure is effective to achieve (that is, rationally
connected to) that objective;
- whether the limitation is a reasonable and proportionate
measure to achieve its stated objective (including the extent of the reduction
in access to parental leave payments; the existence of relevant safeguards; and
whether the measure is the least rights restrictive approach); and
- whether alternatives to reducing access to paid parental leave,
in the context of Australia's use of its maximum available resources, have been
fully considered.
Compatibility of the measure with
the right to equality and non-discrimination
1.262
The right to equality and non-discrimination is protected by articles 2
and 26 of the ICCPR. In addition to these general non-discrimination
provisions, articles 1, 2, 3, 4 and 15 of the CEDAW further describe the
content of these obligations, including the specific elements that state
parties are required to take into account to ensure the rights to equality for
women.[193]
1.263
'Discrimination' encompasses a distinction based on a personal attribute
(for example, race, sex or on the basis of disability),[194] which has either the
purpose (called 'direct' discrimination), or the effect (called 'indirect'
discrimination), of adversely affecting human rights.[195] 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 protected attribute.[196]
1.264
As women are the primary recipients of paid parental leave, increasing
the waiting period for access may have a disproportionate negative effect on
women who are newly arrived residents. Where a measure impacts on particular
groups disproportionately, it establishes prima facie that there may be
indirect discrimination.[197] Differential treatment (including the differential effect of a measure that is
neutral on its face)[198] will not constitute unlawful discrimination if the differential treatment is
based on reasonable and objective criteria such that it serves a legitimate
objective, is effective to achieve that legitimate objective and is a
proportionate means of achieving that objective.
1.265
The statement of compatibility acknowledges that the right to equality
and non-discrimination is engaged. It states that the measure pursues the
objective of 'ensuring newly arrived migrants meet their own living costs...in
order to keep the system sustainable into the future'.[199] As noted above, limited information or reasoning has been provided as to
whether the objectives of ensuring financial sustainability or budgetary
constraints address a pressing or substantial concern in these specific
circumstances. Further, while the statement of compatibility points to the
existence of particular exemptions which may operate as safeguards, no
information is provided as to whether the measure is the least rights
restrictive approach.
Committee comment
1.266
The preceding analysis raises questions as to the compatibility
of the measure with the right to equality and non-discrimination.
1.267
The committee therefore seeks the advice of the minister as to:
- whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern in the
specific circumstances of the proposed legislation;
- how the measure is effective to achieve (that is, rationally
connected to) that objective;
- whether the limitation is a reasonable and proportionate
measure to achieve its stated objective (including whether it is based on
reasonable and objective criteria; the extent of the reduction in access to
parental leave payments; the existence of relevant safeguards; and whether the
measure is the least rights restrictive approach); and
- whether alternatives to reducing access to paid parental leave,
in the context of Australia's use of its maximum available resources, have been
fully considered.
Treasury Laws Amendment (Black Economy Taskforce Measures No. 1) Bill 2018
Purpose |
Introduces offences
prohibiting the production, distribution and possession of sales suppression
tools in relation to entities that have Australian tax obligations. Also
requires entities providing courier or cleaning services that have an ABN to
report to the Australian Taxation Office information about transactions that
involve engaging other entities to undertake those courier or cleaning
services for them |
Portfolio |
Treasury |
Introduced |
House of Representatives, 7
February 2018 |
Rights |
Presumption of innocence,
privacy (see Appendix 2) |
Status |
Seeking additional
information |
Strict liability offences relating to the production, distribution and
possession of sales suppression tools
1.268
Schedule 1 of the Treasury Laws Amendment (Black Economy Taskforce
Measures No. 1) Bill 2018 (the bill) seeks to introduce offence provisions relating
to the production or supply of electronic sales suppression tools[200] and the acquisition, possession or control of such tools where the person is
required to keep or make records under an Australian taxation law.[201] A person will also commit an offence where they have incorrectly kept records
using electronic sales suppression tools.[202] Each of these offences are offences of strict liability.[203]
Compatibility of the measure with
the right to the presumption of innocence
1.269
The right to the presumption of innocence requires that everyone charged
with a criminal offence has the right to be presumed innocent until proven
guilty according to law.
1.270
Strict liability offences limit the right to be presumed innocent until
proven guilty because they allow for the imposition of criminal liability
without the need to prove fault. The bill therefore engages and limits the
right to the presumption of innocence by imposing strict liability offences.
1.271
Strict liability offences will not necessarily be inconsistent with the
presumption of innocence provided that they are within reasonable limits which
take into account the importance of the objective being sought and maintain the
defendant's right to a defence.
1.272
The statement of compatibility for the bill states that the bill does
not engage 'any of the applicable rights or freedoms',[204] but does state that 'applying strict liability
to these offences covered by these amendments is appropriate because it
substantially improves the effectiveness of the prohibition on electronic sales
suppression tools'.[205]
1.273
Where legislation provides for a strict liability offence, the
committee's usual expectation is that the statement of compatibility provides
an assessment of whether such limitations on the presumption of innocence are
proposed in pursuit of a legitimate objective, are rationally connected to this
objective, and are a reasonable, necessary and proportionate means to achieving
that objective. The committee's Guidance Note 2 sets out some of
the key human rights compatibility issues in relation to provisions that create
strict liability offences. Further information from the minister in this regard
will assist the committee to conclude whether the measure permissibly limits
the right to be presumed innocent.
Committee comment
1.274
The committee notes that its Guidance Note 2 sets out
information specific to strict liability offences.
1.275
The committee seeks the advice of the Treasurer as to:
- whether the strict liability offences are aimed at achieving a
legitimate objective for the purposes of human rights law;
- how this measure is effective to achieve (that is, rationally
connected to) that objective; and
- whether the limitation on the right to be presumed innocent is
proportionate to achieve the stated objective.
Various Instruments made under the Autonomous Sanctions Act 2011[206]
Purpose |
Amends the Autonomous
Sanctions Regulations 2011 |
Portfolio |
Foreign Affairs |
Authorising legislation |
Autonomous Sanctions Act
2011 |
Last day to disallow |
[F2018L00049]: 15 sitting
days after tabling (tabled Senate 5 February 2018, notice of motion to
disallow must be given by 8 May 2018)
[F2017L01063] and [F2017L01080]:
15 sitting days after tabling (tabled Senate 4 September 2017)
[F2017L01592]: 15 sitting
days after tabling (tabled Senate 8 February 2018, notice of motion to
disallow must be given by 8 May 2018)
[F2018L00102] and [F2018L00108]:
15 sitting days after tabling (tabled Senate 15 February 2018, notice of
motion to disallow must be given by 25 June 2018)
[F2018L00099], [F2018L00101]
and [F2018L00100]: 15 sitting days after tabling (tabled Senate 14 February
2018, notice of motion to disallow must be given by 21 June 2018) |
Rights |
Multiple rights (see Appendix
2) |
Status |
Seeking additional
information |
Background
1.276
This report considers a number of new instruments under the Autonomous
Sanctions Act 2011 (the Act).[207] This Act, in conjunction with the Autonomous Sanctions Regulations 2011 (the
2011 regulations) and various instruments made under those 2011 regulations,
provides the power for the government to impose broad sanctions to facilitate
the conduct of Australia's external affairs (the autonomous sanctions regime).
1.277
Initial human rights analysis of various autonomous sanctions
instruments was undertaken in 2013, and further detailed analysis (of
autonomous sanctions and of the UN Charter sanctions regime) was made in 2015 and
2016.[208] This analysis stated that, as the instruments under consideration expanded or
applied the operation of the sanctions regime by designating or declaring that
a person is subject to the sanctions regime, or by amending the regime itself,
it was necessary to assess the human rights compatibility of the autonomous
sanctions regime and aspects of the UN Charter sanctions regime as a whole when
considering these instruments. A further response was therefore sought
from the minister, which was considered in the committee's Report 9 of 2016.[209] The committee concluded its examination of various instruments and made a
number of recommendations to assist the compatibility of the sanctions regime
with human rights.[210]
'Freezing' of designated person's assets and prohibitions on travel
1.278
Each of the new instruments designates and declares persons for the
purpose of the 2011 regulations. Persons are designated and declared where the
Minister for Foreign Affairs is satisfied that doing so will facilitate the
conduct of Australia's relations with other countries or with entities or
persons outside of Australia, or will otherwise deal with matters, things or
relationships outside Australia.[211] The 2011 regulations set out the countries and activities for which a person or
entity can be designated or declared.[212] For example, the Autonomous Sanctions (Designated Persons and Entities –
Democratic People's Republic of Korea) Amendment List 2017 (No. 2) [F2017L01063]
designates and declares certain persons or entities for the purposes of the
2011 regulations on the basis that the Minister for Foreign Affairs is
satisfied that the person or entity is assisting in the violation or evasion by
the Democratic People's Republic of Korea (DPRK) of specified United Nations
(UN) Security Council Resolutions.
1.279
The effect of the designations and declarations in each of the
instruments is that the listed persons:
- are subject to financial sanctions such that it is an offence for
a person to make an asset directly or indirectly available to, or for the
benefit of, a designated person.[213] A person's assets are therefore effectively 'frozen' as a result of being
designated; and
- are subject to a travel ban to prevent the persons travelling to,
entering or remaining in Australia.
1.280
The autonomous sanctions regime provides that the minister may grant a
permit authorising the making available of certain assets to a designated
person.[214] An application for a permit can only be made for basic expenses, to satisfy a
legal judgment or where a payment is contractually required.[215] A basic expense includes foodstuffs; rent or mortgage; medicines or medical
treatment; public utility charges; insurance; taxes; legal fees and reasonable
professional fees.[216]
Compatibility of the designations
and declarations with multiple human rights
1.281
The statement of compatibility for each of the instruments states that
the instruments are compatible with human rights and freedoms. However, the
statements of compatibility provide only a broad description of the operation
and effect of each instrument, and none provide any substantive analysis of the
rights and freedoms that are engaged and limited by the instruments. This is
the case notwithstanding that committee reports have previously raised
significant human rights concerns in relation to such instruments on a number
of previous occasions. As set out in the committee's Guidance Note 1, the
committee's usual expectation is that the statement of compatibility provides a
detailed and evidence-based assessment of the rights engaged and limited by the
measure, including whether any limitations on such rights are permissible (that
is, whether they are prescribed by law, pursue a legitimate objective, are
rationally connected to that objective, and are proportionate).
1.282
It is noted that aspects of the sanctions regimes may operate variously
to both limit and promote human rights. However, consistent with committee
practice to comment by exception, the current and previous examination of
Australia's sanctions regimes has been, and is, focused solely on measures that
impose restrictions on individuals.
1.283
The committee has previously noted that the autonomous sanctions regime
engages and may limit multiple human rights, including:
- the right to privacy;
- the right to a fair hearing;
- the right to protection of the family;
- the right to an adequate standard of living;
-
the right to freedom of movement;
-
the prohibition against non-refoulement; and
- the right to equality and non-discrimination.
1.284
Further analysis of the rights engaged by the current instruments is set
out below.
1.285
The committee further notes that the analysis below is in relation to
the human rights obligations owed to individuals located in Australia. The
committee is unaware whether any of the designations or declarations made under
the autonomous or UN Charter sanctions regime has affected individuals living
in Australia (although as at 21 February 2018 the consolidated list of
individuals subject to sanctions currently includes two Australian citizens who
have been delegated pursuant to the UN Charter sanctions regime).[217] The analysis below therefore provides an assessment of whether the amendments
to the autonomous sanctions regime introduced by the instruments could breach
the human rights of persons to whom Australia owes such obligations,
irrespective of whether there have already been instances of individuals in
Australia affected by these measures.
Right to privacy, right to a fair
hearing, right to protection of the family, right to an adequate standard of
living and the right to freedom of movement
Right to privacy
1.286
Article 17 of the International Covenant on Civil and Political Rights
(ICCPR) prohibits arbitrary or unlawful interference with an individual's
privacy, family, correspondence or home. The designation and declaration of a
person under the autonomous sanctions regimes is a significant incursion
into a person's right to personal autonomy in one's private life (within the
right to privacy). In particular, the freezing of a person's assets and the
requirement for a designated person to seek the permission of the minister to
access their funds for basic expenses imposes a limit on that person's right to
a private life, free from interference by the state.
1.287
Further, the designation process under the autonomous sanctions regimes
limits the right to privacy of close family members of a designated person. As
noted above, once a person is designated under either sanctions regime, the
effect of designation is that it is an offence for a person to directly or
indirectly make any asset available to, or for the benefit of, a designated
person (unless it is authorised under a permit to do so). This could mean that
close family members who live with a designated person will not be able to
access their own funds without needing to account for all expenditure, on the
basis that any of their funds may indirectly benefit a designated person (for
example, if a spouse's funds are used to buy food or public utilities for the
household that the designated person lives in).
Right to a fair hearing
1.288
The right to a fair hearing is protected by article 14 of the ICCPR. The
right applies both to criminal and civil proceedings, to cases before both
courts and tribunals and to military disciplinary hearings. The right applies
where rights and obligations, such as personal property and other private
rights, are to be determined. In order to constitute a fair hearing, the
hearing must be conducted by an independent and impartial court or tribunal,
before which all parties are equal, and have a reasonable opportunity to
present their case. Ordinarily, the hearing must be public, but in certain
circumstances, a fair hearing may be conducted in private. The committee's
previous human rights analysis of the autonomous sanctions regimes therefore
noted that the designation and declaration process under the sanctions regimes
limits the right to a fair hearing because it does not provide for merits
review of the minister's designation or declaration under the autonomous
sanctions regime before a court or tribunal.[218]
Right to protection of the family
1.289
The right to respect for the family is protected by articles 17 and 23
of the ICCPR and article 10 of the International Covenant on Economic, Social
and Cultural Rights (ICESCR). An important element of protection of the family
is to ensure family members are not involuntarily separated from one another.
Laws and measures which prevent family members from being together, impose long
periods of separation or forcibly remove children from their parents, will
therefore engage this right. A person who is declared under the autonomous
sanctions regime for the purpose of preventing the person from travelling to,
entering or remaining in Australia will have their visa cancelled pursuant to
the Migration Regulations 1994.[219] This makes the person liable to deportation which may result in that person
being separated from their family, which therefore engages and limits the right
to protection of the family.
Right to an adequate standard of
living
1.290
The right to an adequate standard of living is guaranteed by article 11
of ICESCR and requires state parties to take steps to ensure the availability,
adequacy and accessibility of food, clothing, water and housing for all people
in Australia. The imposition of economic sanctions on a person engages and
limits this right, as persons subject to such sanctions will have their assets
effectively frozen and may therefore have difficulty paying for basic expenses.[220]
Right to freedom of movement
1.291
The right to freedom of movement is protected under article 12 of the
ICCPR and includes a right to leave Australia as well as the right to enter,
remain, or return to one's 'own country'. 'Own country' is a concept which
encompasses not only a country where a person has citizenship but also one
where a person has strong ties, such as long standing residence, close personal
and family ties and intention to remain, as well as the absence of such ties
elsewhere.[221] The power to cancel a person's visa that is enlivened by designating or
declaring a person under the autonomous sanctions regime may engage and limit
the freedom of movement. This is because a person's visa may be cancelled (with
the result that the person may be deported) in circumstances where that person
has strong ties to Australia such that Australia may be considered their 'own
country' for the purposes of international human rights law, despite that
person not holding formal citizenship.
Limitations on human rights
1.292
Each of these rights may be subject to permissible limitations under
international human rights law. In order to be permissible, the measure must
seek to achieve a legitimate objective and be reasonable, necessary and
proportionate to achieving that objective. In the case of executive powers
which seriously disrupt the lives of individuals subjected to them, the
existence of safeguards is important to prevent arbitrariness and error, and
ensure that the powers are exercised only in the appropriate circumstances.
1.293
The committee has previously accepted that the use of international
sanctions regimes to apply pressure to governments and individuals in order to
end the repression of human rights may be regarded as a legitimate objective
for the purposes of international human rights law.[222] However, it has expressed concerns that the sanctions regimes may not be
regarded as proportionate to their stated objective, in particular because of a
lack of effective safeguards to ensure that the regimes, given their serious
effects on those subject to them, are not applied in error or in a manner which
is overly broad in the individual circumstances.
1.294
For example, the previous human rights analysis raised concerns that the
designation or declaration under the autonomous sanctions regime can be solely
on the basis that the minister is 'satisfied' of a number of broadly defined
matters,[223]
and that there is no provision for merits review before a court or tribunal of
the minister's decision. In response to previous questions from the committee
in relation to these issues, the minister noted that the decisions were subject
to judicial review under the Administrative Decisions (Judicial Review) Act
1977 (ADJR Act) and under common law.[224] This appears to be one safeguard available under general law insofar as it does
secure the minimum requirement that the minister act in accordance with the
legislation.
1.295
However, as noted in the committee's previous report, the effectiveness
of judicial review as a safeguard within the sanctions regimes relies, in
significant part, on the clarity and specificity with which legislation
specifies powers conferred on the executive. The scope of the power to
designate or declare someone is based on the minister's satisfaction in
relation to certain matters which are stated in broad terms. It is noted that
this formulation limits the scope to challenge such a decision on the basis of
there being an error of law (as opposed to an error on the merits) under the
ADJR Act or at common law. As the committee has previously explained, judicial
review will generally be insufficient, in and of itself, to operate as a
sufficient safeguard for human rights purposes in this context.[225]
1.296
The previous human rights analysis has also raised concerns that the minister
can make the designation or declaration without hearing from the affected
person before the decision is made. In response to previous questions from the
committee, the minister indicated that the designation or declaration without
hearing from the affected person was necessary to ensure the effectiveness of
the regime, as prior notice would effectively 'tip off' the person and could lead
to assets being moved off-shore. However, the previous human rights analysis
noted that there may be less rights-restrictive measures available, such as
freezing assets on an interim basis until complete information is available
including from the affected person.[226]
1.297
There is also no requirement to report to Parliament setting out the
basis on which persons have been declared or designated and what assets, or the
amount of assets that have been frozen. In response to previous questions from
the committee, the minister stated that public disclosure of assets frozen
could risk undermining the administration of the sanctions regimes. However,
the previous human rights analysis noted that it was difficult to accept the
minister's justification as information identifying declared or designated
persons is already publicly available on the Consolidated List of individuals
subject to sanctions, which is available on the Department of Foreign Affairs
and Trade website.[227]
1.298
Previous human rights analysis has also noted that once the decision is
made to designate or declare a person, the designation or declaration remains
in force for three years and may be continued after that time (such as occurs
through these instruments). There is no requirement that if circumstances
change or new evidence comes to light the designation or declaration will be
reviewed before the three year period ends. In response to previous questions
from the committee on this issue, the minister noted that designations and
declarations may be reviewed at any time and persons may request revocation if
circumstances change or new evidence comes to light. While this is true,
without an automatic requirement of reconsideration if circumstances change or
new evidence comes to light, a person may remain subject to sanctions
notwithstanding that designation or declaration may no longer be required.[228] This is of particular relevance in the context of the Autonomous Sanctions
(Designated and Declared Persons – Former Federal Republic of Yugoslavia) Continuing
Effect Declaration and Revocation Instrument 2018 [F2018L00099], which renews
the designation and declarations, against many persons for a further three
years on the basis of (among other things) their indictment before the International
Criminal Tribunal for the former Yugoslavia (ICTY). However, the ICTY closed on
31 December 2017 with remaining appeals being determined by the UN Mechanism
for International Criminal Tribunals (MICT), which raises questions as to
whether the continued application of sanctions against those persons because of
their status as (former) ICTY indictees is proportionate.
1.299
Similarly, a designated or declared person will only have their
application for revocation considered once a year. If an application for review
has been made within the year, the minister is not required to consider it. The
minister has previously stated that this requirement is intended to ensure the
minister is not required to consider repeated, vexatious revocation requests.[229] However, the previous human rights analysis noted that the provision gives the
minister a discretion that is broader than merely preventing vexatious
applications and the current requirement may affect meritorious applications
for revocation.[230]
1.300
There is also no requirement to consider whether applying the ordinary
criminal law to a person would be more appropriate than freezing the person's
assets on the decision of the minister. The minister has previously stated that
the imposition of targeted financial sanctions is considered, internationally,
to be a preventive measure that operates in parallel to complement the criminal
law.[231] The previous human rights analysis accepted that such measures may be
preventive, but also noted that without further guidance from the minister
(such as when and in what circumstances complementary targeted action would be
needed) that there appeared to be a risk that such action may not be the least
restrictive of human rights in every case.[232]
1.301
The previous human rights analysis also raised concerns relating to the
minister's unrestricted power to impose conditions on a permit to allow access
to funds to meet basic expenses. While the minister has previously stated that
such discretion is appropriate, the previous human rights analysis expressed
concern as the broad discretion to impose conditions on access to money for
basic expenses does not appear to be the least rights-restrictive way of
achieving the legitimate objective.[233]
1.302
The previous human rights analysis also raised concerns that there is no
requirement that in making a designation or declaration the minister must take
into account whether doing so would be proportionate with the anticipated
effect on an individual's private and family life. The committee has previously
noted that this absence of safeguards in relation to family members raises
concerns as to the proportionality of the measure.[234]
1.303
Further, limited guidance is available under the Act or 2011 regulations
or any other publicly available document setting out the basis on which the
minister decides to designate or declare a person.[235] The previous human rights analysis noted that this lack of clarity raises
concerns as to whether the regime represents the least rights-restrictive way
of achieving its objective, as the scope of the law is not made evident to
those who may fall within the criteria for listing and who may seek in good
faith to comply with the law.[236]
1.304
The European Court of Human Rights decision in Al-Dulimi and Montana
Management Inc. v Switzerland provides further useful guidance on the interaction
between UN Security Council sanctions and international human rights law.[237] This case confirmed the presumption that UN Security Council Resolutions are to
be interpreted on the basis that they are compatible with human rights. The
European Court of Human Rights found that domestic courts should have the
ability to exercise scrutiny so that arbitrariness can be avoided. This case
also indicated that, even in circumstances where an individual is specifically
listed by the UN Security Council Committee, individuals should be afforded a
genuine opportunity to submit evidence to a domestic court to seek to show that
their inclusion on the UN Security Council list was arbitrary. That is, the
state is still required to afford fair hearing rights in these circumstances.
In light of this case and the concerns discussed above, there are concerns that
the current Australian model of autonomous sanctions regimes may be
incompatible with the right to a fair hearing.
1.305
The committee has also previously noted that, in terms of comparative
models, the United Kingdom (UK) has implemented its obligations in a manner
that incorporates a number of safeguards not present in the Australian
autonomous sanctions regime, including:
- challenges to designations made by the executive can be made by
way of full merits appeal rather than solely by way of judicial review;[238]
- quarterly reports must be made by the executive on the operation
of the regime;[239]
- an Independent Reviewer of Terrorism Legislation reviews each
designation and has unrestricted access to relevant documents, government
personnel, the police and intelligence agencies;[240]
- the executive provides a 'Designation Policy Statement' to
Parliament setting out the factors used when deciding whether to designate a
person;
- an Asset-Freezing Review sub-group annually reviews all existing
designations, or earlier if new evidence comes to light or there is a
significant change in circumstances, and the executive invites each designated
person to respond to whether they should remain designated;[241]
-
the prohibition on making funds available does not apply to
social security benefits paid to family members of a designated person (even if
the payment is made in respect of a designated person);[242] and
-
when the executive is considering designating a person,
operational partners are consulted, including the police, to determine whether
there are options available other than designation—for example, prosecution or
forfeiture of assets—to ensure that there is not a less rights restrictive
alternative to achieve the objective.[243]
1.306
These kinds of safeguards in the UK asset-freezing regime are highly
relevant indicia that there are more proportionate methods of achieving the
legitimate objective of the Australian autonomous sanctions regimes. That
is, it would appear that a less rights-restrictive approach is reasonably
available.
The prohibition on non-refoulement
and the right to an effective remedy
1.307
Australia has non-refoulement obligations under the Refugee Convention,
the ICCPR and the Convention Against Torture (CAT). This means that Australia
must not return any person to a country where there is a real risk that they
would face persecution, torture or other serious forms of harm, such as the
death penalty; arbitrary deprivation of life; or cruel, inhuman or degrading
treatment or punishment.[244] Non-refoulement obligations are absolute and may not be subject to any
limitations.
1.308
Independent, effective and impartial review by a court or tribunal of
decisions to deport or remove a person, including merits review in the
Australian context, is integral to giving effect to non-refoulement
obligations.
1.309
As noted earlier, an Australian visa holder who is declared under the
autonomous sanctions regime for the purpose of preventing the person from
travelling to, entering or remaining in Australia will have their visa
cancelled pursuant to the Migration Regulations 1994.[245] It is not clear whether this provision would apply to visa holders who have
been found to engage Australia's non-refoulement obligations.
1.310
Section 198 of the Migration Act requires an immigration officer to
remove an unlawful non-citizen (which includes persons whose visas have been
cancelled) in a number of circumstances as soon as reasonably practicable.
Section 197C of the Migration Act also provides that, for the purposes of
exercising removal powers under section 198, it is irrelevant whether Australia
has non-refoulement obligations in respect of an unlawful non-citizen. There is
thus no statutory protection ensuring that an unlawful non-citizen to whom
Australia owes protection obligations will not be removed from Australia, nor
is there any statutory provision granting access to effective and impartial
review of the decision as to whether removal is consistent with Australia’s
non-refoulement obligations. As stated in previous human rights assessments,
ministerial discretion not to remove a person is not a sufficient safeguard
under international law.[246]
1.311
This therefore raises concerns that the declaration of a person who is
an Australian visa holder under the autonomous sanctions regime, which may
trigger the cancellation of a person's visa, in the absence of any statutory
protections to prevent the removal of persons to whom Australia owes non-refoulement obligations, may be incompatible with the obligation of non-refoulement in
conjunction with the right to an effective remedy.
Committee comment
1.312
The committee notes that the relevant statements of compatibility
assert that the instruments are compatible with human rights and freedoms and
draws the minister's attention to its Guidance Note 1 which sets out the
committee's expectations in relation to drafting statements of compatibility.
1.313
The committee seeks the advice of the minister as to the
compatibility of the measures with the right to privacy, right to a fair
hearing, right to protection of the family, right to an adequate standard of
living and the right to freedom of movement. In particular, the committee seeks
the advice of the minister as to how the designation and declaration of persons
pursuant to the autonomous sanctions regime is a proportionate limit on these
rights, having regard to the matters set out in [1.286] to [1.306] above.
1.314
The committee notes that the consequence of the exercise of the
power to declare persons under the autonomous sanctions regime is that the
person is prohibited from travelling and may have their visa cancelled. The
committee seeks the advice of the minister as to the compatibility of this measure
with the prohibition on non-refoulement in conjunction with the right to an
effective remedy. This includes any safeguards in place to ensure that persons
to whom Australia owes protection obligations will not be subject to
refoulement as a consequence of being declared under the autonomous sanctions
regime.
1.315
The committee draws the minister's attention to the Committee's
recommendations in Report 9 of 2016 that consideration be given to the
following measures, several of which have been implemented in relation to the
comparable regime in the United Kingdom, to ensure compatibility with human
rights:
-
the provision of publicly available guidance in legislation
setting out in detail the basis on which the minister decides to designate or
declare a person;
- regular reports to Parliament in relation to the regimes
including the basis on which persons have been declared or designated and what
assets, or the amount of assets, that have been frozen;
-
provision for merits review before a court or tribunal of the minister's
decision to designate or declare a person;
- provision for merits review before a court or tribunal of an
automatic designation where an individual is specifically listed by the UN
Security Council Committee;
-
regular periodic reviews of designations and declarations;
- automatic reconsideration of a designation or declaration if new
evidence or information comes to light;
- limits on the power of the minister to impose conditions on a
permit for access to funds to meet basic expenses;
-
review of individual designations and declarations by the
Independent National Security Legislation Monitor;
-
provision that any prohibition on making funds available does not
apply to social security payments to family members of a designated person (to
protect those family members); and
- consultation with operational partners such as the police
regarding other alternatives to the imposition of sanctions.
1.316
The committee seeks the advice of the minister as to whether a
substantive assessment of the human rights engaged and limited by the
autonomous sanctions regime will be included in future statements of
compatibility to assist the committee fully to assess the compatibility of the
measure with human rights in future.[247]
Designations or declarations in relation to specified countries
1.317
The autonomous sanctions regime allows the minister to make a
designation or declaration in relation to persons involved in some way with
(currently) eight specified countries.
Compatibility of the measure with
the right to equality and non-discrimination
1.318
The right to equality and non-discrimination 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. Unlawful
discrimination may be direct (that is, having the purpose of discriminating on
a prohibited ground), or indirect (that is, having the effect of discriminating
on a prohibited ground, even if this is not the intent of the measure). One of
the prohibited grounds of discrimination under international human rights law
is discrimination on the grounds of national origin and nationality.
1.319
The previous human rights analysis of the sanctions regime considered
that the designation of persons in relation to specified countries may limit
the right to equality and non-discrimination.[248] This is because nationals of listed countries may be more likely to be
considered to be 'associated with' or work for a specified government or regime
than those from other nationalities. Where a measure impacts on particular
groups disproportionately it establishes prima facie that there may be
indirect discrimination.
1.320
A disproportionate effect on a particular group may be justifiable such
that the measure does not constitute unlawful indirect 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. Information
to justify the rationale for differential treatment will be relevant to this
proportionality analysis.
Committee comment
1.321
The preceding analysis indicates that the designations or declarations
in relation to specified countries appear to have a disproportionate impact on
persons on the basis of national origin or nationality.
1.322
The committee seeks the advice of the minister as to the compatibility
of the measures with the right to equality and non-discrimination.
Advice only
1.323
The committee draws the following bills and instruments to the attention
of the relevant minister or legislation proponent on an advice only basis. The
committee does not require a response to these comments.
Appropriation Bill (No. 3)
2017-2018
Appropriation Bill (No. 4) 2017-2018
Purpose |
Appropriation Bill (No. 3)
2017-2018 seeks to appropriate money from the Consolidated Revenue Fund for
the ordinary annual services of the government; Appropriation Bill (No. 4)
2017-2018 seeks to appropriate money from the Consolidated Revenue Fund for
services that are not the ordinary annual services of the Government |
Portfolio |
Finance |
Introduced |
House of Representatives, 8
February 2018 |
Rights |
Multiple rights (see Appendix
2) |
Status |
Advice only |
Background
1.324
The committee has considered the human rights implications of
appropriations bills in a number of previous reports,[249] and they have been the subject of correspondence with the Department of
Finance.[250] During the 44th Parliament, the Minister for Finance previously
invited the committee to meet with departmental officials about this issue.[251]
1.325
The committee previously reported on Appropriation Bill (No. 1)
2017-2018 and Appropriation Bill (No. 2) 2017-2018 (the earlier 2017-2018
bills) in its Report 5 of 2017.[252]
Potential engagement and limitation of human rights by appropriations Acts
1.326
As previously stated in respect of the 2017-2018 bills, proposed
government expenditure to give effect to particular policies may engage and
limit and/or promote a range of human rights. This includes rights under the
International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights (ICESCR).[253]
1.327
The committee's report has previously noted that:
...the allocation of funds via appropriations bills is
susceptible to a human rights assessment that is directed at broader questions
of compatibility—namely, their impact on progressive realisation obligations
and on vulnerable minorities or specific groups. In particular, the committee
considers there may be specific appropriations bills or specific appropriations
where there is an evident and substantial link to the carrying out of a policy
or program under legislation that gives rise to human rights concerns.[254]
Compatibility of the bills with
multiple rights
1.328
As with the earlier 2017-2018 bills, and previous appropriations bills,
the current bills are accompanied by a brief statement of compatibility, which
notes that the High Court has stated that, beyond authorising the withdrawal of
money for broadly identified purposes, appropriations Acts 'do not create
rights and nor do they, importantly, impose any duties'.[255] The statements of compatibility conclude that, as their legal effect is limited
in this way, the bills do not engage, or otherwise affect, human rights.[256] The statements of compatibility also state that '[d]etailed information on the
relevant appropriations...is contained in the portfolio [Budget] statements'.[257] No further assessment of the human rights compatibility of the bills is provided.
1.329
A full human rights analysis in respect of such statements of
compatibility can be found in the committee's Report 9 of 2016.[258] Under international human rights law, Australia has obligations to respect,
protect and fulfil human rights. These include specific obligations to
progressively realise economic, social and cultural (ESC) rights using the
maximum of resources available;[259] and a corresponding duty to refrain from taking retrogressive measures, or
backwards steps, in relation to the realisation of these rights. This means
that any reduction in allocated government funding for measures which realise
socio‑economic rights, such as specific health and education services,
may be considered as retrogressive in respect of the attainment of ESC rights
and, accordingly, must be justified for the purposes of international human
rights law.
1.330
The cited view of the High Court that appropriations Acts do not create
rights or duties as a matter of Australian law does not address the fact that
appropriations may nevertheless engage human rights for the purposes of
international law, as specific appropriations reducing expenditure may be
regarded as retrogressive, or as limiting rights. The appropriation of funds
facilitates the taking of actions which may affect both the progressive
realisation of, and the failure to fulfil, Australia's obligations under the
treaties listed in the Human Rights (Parliamentary Scrutiny) Act 2011.
1.331
As previously stated, while such bills present particular difficulties
for human rights assessments because they generally include high-level
appropriations for a wide range of outcomes and activities across many
portfolios, the allocation of funds via appropriations bills is susceptible to
a human rights assessment directed at broader questions of compatibility.[260]
Committee comment
1.332
The committee notes that, as with previous appropriations bills,
the statements of compatibility for the current bills provide no assessment of
their compatibility with human rights on the basis that they do not engage or
otherwise create or impact on human rights. However, while the committee
acknowledges that appropriations bills present particular challenges in terms
of human rights assessments, the appropriation of funds may engage and
potentially limit or promote a range of human rights that fall under the
committee's mandate.
1.333
Given the difficulty of conducting measure-level assessments of
appropriations bills, the committee recommends that consideration be given to
developing alternative templates for assessing their human rights
compatibility, drawing upon existing domestic and international precedents.
Relevant factors in such an approach could include consideration of:
- whether the bills are compatible with Australia's obligations
of progressive realisation with respect to economic, social and cultural
rights;
- whether any reductions in the allocation of funding are
compatible with Australia's obligations not to unjustifiably take retrogressive
or backward steps in the realisation of economic, social and cultural rights;
and
- whether the allocations are compatible with the rights of
vulnerable groups (such as children; women; Aboriginal and Torres Strait
Islander Peoples; persons with disabilities; and ethnic minorities).
1.334
The committee would welcome the opportunity to engage further
with the department on these and related matters concerning statements of
compatibility for appropriations bills.
Australian Citizenship Legislation Amendment (Strengthening the Commitments
for Australian Citizenship and Other Measures) Bill 2018
Purpose |
Seeks to make a range of
amendments to the Australian Citizenship Act 2007, the Migration
Act 1958 and other legislation including in relation to citizenship
eligibility requirements, character requirements and review of decisions |
Sponsor |
Senator Pauline Hanson |
Introduced |
7 February 2018, Senate |
Rights |
Obligation to consider the
best interests of the child; children's right to nationality; children to be
heard in judicial and administrative proceedings; fair hearing; freedom of
movement; equality and non-discrimination (see Appendix 2) |
Status |
Advice only |
Background
1.335
The committee previously examined the Australian Citizenship Legislation
Amendment (Strengthening the Requirements for Australian Citizenship and Other
Measures) Bill 2017 (2017 bill) in its Report 8 of 2017 and Report 10
of 2017.[261] The 2017 bill contained a number of reintroduced measures that were previously
contained in the Australian Citizenship and Other Legislation Amendment Bill
2014 (2014 bill), examined in the committee's Eighteenth Report of the 44th Parliament and Twenty-Fourth Report of the 44thParliament.[262]
1.336
The 2014 bill lapsed at the prorogation of the 44th parliament and the
2017 bill is not proceeding.[263]
1.337
The Australian Citizenship Legislation Amendment (Strengthening the
Commitments for Australian Citizenship and Other Measures) Bill 2018 (2018
bill) is substantially the same as the 2017 bill. Accordingly, the committee's
previous assessment is summarised briefly below.
Summary of measures in the 2018 bill
1.338
The 2018 bill seeks to make a number of amendments to the Australian
Citizenship Act 2007 (Citizenship Act) that were contained in the 2017
bill, including to:
- amend the general eligibility criteria under section 21(2) of the
Citizenship Act to require that applicants have 'competent English';[264]
- require the minister to be satisfied that a person 'has
integrated into the Australian community' in order for that person to be
eligible for citizenship by conferral;[265]
- grant the minister a discretionary power to revoke a person's
Australian citizenship, up to 10 years after citizenship was first granted,
where the minister is 'satisfied' that the person became an Australian citizen
as a result of fraud or misrepresentation by themselves or a third party with a
requirement of a court finding as to fraud or misrepresentation;[266]
- extend the 'good character' requirements for applicants for
Australian citizenship to persons under 18 years of age;[267]
- provide that a child found abandoned in Australia is taken to
have been born in Australia and to be an Australian citizen by birth, unless it
is proved that the person was outside Australia before they were found
abandoned or they are not an Australian citizen by birth;[268]
- restrict automatic citizenship at 10 years of age for a child
born in Australia;[269]
- remove the power of the Administrative Appeals Tribunal (AAT) to
review a decision made by the minister personally under the Citizenship Act, if
the minister has stated in a notice that the decision was made in the public
interest;[270]
- empower the minister to set aside decisions made by the AAT in
reviewing decisions of the minister's delegates, if the minister's delegate had
originally decided that an applicant for citizenship was not of good character,
or was not satisfied as to the person's identity, and the minister is satisfied
it is in the public interest to set aside the AAT's decision; and[271]
- extend the bar on approval for citizenship to cases where a
person is subject to a court order.[272]
1.339
The 2017 bill sought to amend the general residence requirement in the
Citizenship Act to require citizenship by conferral applicants to have been a
permanent resident for four years before they are eligible to apply for
citizenship.[273] Under the Citizenship Act, the current requirement is 12 months.[274] The 2018 bill seeks to change the requirement from 12 months to eight years.
This measure is the only substantive change between the 2017 bill and the 2018
bill.
Compatibility of the measures with
human rights
1.340
The committee examined each of the above reintroduced measures in its
previous assessment of the 2017 bill in Report 8 of 2017 and Report
10 of 2017.
1.341
In relation to measures in the 2017 bill that were previously contained
in the 2014 bill, the committee drew the various human rights implications of
these measures to the attention of the parliament in its Report 8 of 2017 including in relation to:
- The power to revoke Australian citizenship due to fraud or
misrepresentation – removal of court finding: the previous human rights
analysis raised concerns in relation to this measure and the obligation to
consider the best interests of the child, the child's right to nationality, the
right of the child to be heard in judicial and administrative proceedings, the
right to a fair trial and a fair hearing and the right to freedom of movement.[275]
- Extending the good character requirement to include applicants
for Australian citizenship under 18 years of age: the previous human rights
analysis raised concerns in relation to this measure and the obligation to
consider the best interests of the child as a primary consideration.[276]
- Citizenship to a child found abandoned in Australia: the
previous human rights analysis raised concerns in relation to this measure and the
obligation to consider the best interests of the child and a child's right to
nationality.[277]
- Limiting automatic citizenship at 10 years of age: the
previous human rights analysis raised concerns in relation to this measure and
the obligation to consider the best interests of the child and a child's right
to nationality.[278]
- Personal ministerial decisions not subject to merits review: the
previous human rights analysis raised concerns in relation to this measure and
the right to a fair hearing.[279]
- Ministerial power to set aside decisions of the AAT if in the
public interest: the previous human rights analysis raised concerns in
relation to this measure and the right to a fair hearing.[280]
- Extension of bars to citizenship where a person is subject to
a court order: the previous human rights analysis raised concerns in
relation to the right to equality and non-discrimination.[281]
1.342
In relation to two measures that were new in the 2017 bill, the
committee concluded its examination in its Report 10 of 2017 after
receiving a response from the minister:[282]
- Requirement that applicants for Australian citizenship have
'competent English': the previous analysis set out that the measure engages
the right to equality and non-discrimination on the basis of language, and may
also indirectly discriminate on the basis of national origin, in causing a
disproportionate impact on individuals from countries where English is not the
national language or widely spoken. The analysis in Report 10 of 2017 stated
that concerns remained, including as to whether the English language
requirement was rationally connected to the stated objective of promoting social
cohesion; whether there would be adequate government support to bring adults up
to the required English level; and the existence of adequate exemptions. The
committee therefore concluded that the measure appeared likely to be
incompatible with the right to equality and non-discrimination.[283]
- Requirement that the minister be satisfied that a person 'has
integrated into the Australian community' in order for that person to be
eligible for citizenship by conferral: the previous analysis noted that the
measure potentially engaged and limited multiple human rights, including the right
to equality and non-discrimination and the right to freedom of expression. A
particular concern was noted in that there was nothing on the face of the
legislation which appeared to limit the minister's discretion in determining
the basis on which a person will be considered to have integrated into the
Australian community. The proposed provision to exclude merits review of the
minister's personal decision to refuse a citizenship application also raised
concerns in relation to the right to a fair hearing. Noting the broad scope of
the proposed power, the committee concluded that there may be human rights
concerns in relation to its operation.[284] However, it was noted that setting out criteria for the exercise of this power
by legislative instrument may be capable of addressing some of these concerns.
Committee comment
1.343
The committee refers to its previous consideration of the 2017
bill in its Report 8 of 2017 and Report 10 of 2017.
1.344
Noting the human rights concerns raised in relation to the 2017
bill, the committee draws the human rights implications of the reintroduced
measures in the 2018 bill to the attention of the parliament.
Migration Legislation Amendment (2017 Measures No. 4)
Regulations 2017 [F2017L01425]
Purpose |
Sought to introduce a
series of amendments to the Migration Regulations 1994, including new
and expanded visa conditions for most temporary visas, and restrictions on
applying for visas for persons whose visa had previously been cancelled |
Portfolio |
Home Affairs |
Authorising legislation |
Migration Act 1958 |
Last day to disallow |
This regulation was
disallowed on 5 December 2017 |
Rights |
Right to liberty;
protection of family; freedom of expression and assembly; freedom of
movement (see Appendix 2) |
Status |
Advice only |
Background
1.345
The Migration Legislation Amendment (2017 Measures 4) Regulations 2017
(the amendment regulations) were disallowed in the Senate on 5 December 2017.
Schedule 1: Outstanding public health debt conditions
1.346
Schedule 1 of the amendment regulations sought to create a new visa
condition that the visa holder must not have an
'outstanding public health debt'.[285] Breach of this visa condition would be a ground for considering cancellation of
the visa.[286]
Compatibility of the measures with
multiple rights
1.347
The introduction of a visa condition that outstanding public health
debts must be paid engages and limits a number of human rights, in particular:
-
the right to health;
- the right to social security; and
-
the right to equality and non-discrimination.
1.348
The right to health is guaranteed by article 12(1) of the International
Covenant on Economic, Social and Cultural Rights (ICESCR), and is fundamental
to the exercise of other human rights. The right to health is understood as the
right to enjoy the highest attainable standard of physical and mental health,
and requires available, accessible, acceptable and quality health care. In
particular, in relation to accessibility, the United Nations (UN) Economic,
Social and Cultural Rights Committee has noted:
health facilities, goods and services must be affordable for
all. Payment for health-care services, as well as services related to the
underlying determinants of health, has to be based on the principle of equity,
ensuring that these services, whether privately or publicly provided, are
affordable for all, including socially disadvantaged groups.[287]
1.349
The right to health requires states to ensure the right of access to
health facilities, goods and services on a non-discriminatory basis.[288] Similarly, the right to equality and non-discrimination 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. The ICCPR defines
'discrimination' as a distinction based on a personal attribute (including
nationality and national or social origin), which
has either the purpose ('direct' discrimination), or the effect ('indirect'
discrimination), of adversely affecting human rights.
1.350
The right to social security includes the right to access benefits to
prevent access to health care from being unaffordable. As the UN Economic,
Social and Cultural Rights Committee has stated in relation to the right to
social security, 'States parties have an obligation to guarantee that health
systems are established to provide adequate access to health services for all'.[289] Australia has an obligation in relation to these rights for all people
in Australia.
1.351
As explained in the statement of compatibility, temporary visa holders
generally do not have access to Medicare and so are expected to pay directly
for the health care services they receive.[290] The absence of Medicare for temporary visa holders raises issues around the
economic accessibility of health care. While the measure does not exclude
access to health care services in its terms, in practice it may do so as those
who cannot afford such services would be unable to access such health care
services. The possibility of visa cancellation where outstanding health debts
remain unpaid raises an additional obstacle on individuals being able to access
health care, as persons may be deterred from accessing such care because of the
significant consequences of being unable to pay. This therefore limits the
right to health and the right to social security. Further, while Australia
enjoys a degree of discretion in differentiating between nationals and
non-nationals, the application of this measure to temporary visa-holders
(who by definition will not be citizens of Australia) may also engage
Australia's obligations in relation to non-discrimination on the grounds of
nationality and national origin.
1.352
Limitations on these rights will be permissible if the measures serve a
legitimate objective, are rationally connected to this objective and are a
proportionate means of achieving that objective.
1.353
The statement of compatibility explains that the new costs arrangements
'are necessary, reasonable and proportionate to achieve the aim of limiting the
financial burden on Australia's public health system, through raising the
awareness of temporary visa holders of their liability for health services used
in Australia'.[291]
However, the committee's usual expectation is that the accompanying statement
of compatibility provides a reasoned and evidence-based explanation of how the
measure supports a legitimate objective. While the statement of compatibility
notes that health care providers 'have noted cases where temporary visa holders
incurred debts for treatment which they did not pay, and for which they were
unlikely to pay, and where there was limited capacity for the relevant health
authority to recover the debt', it provides no information or evidence as to
the extent to which this occurs and is a pressing issue. Insofar as the measure
aims to raise awareness of visa holders' liability for health services, it is
not clear this would be a legitimate objective, as to be capable of justifying
a proposed limitation on human rights. This is because a legitimate objective must
address a pressing or substantial concern and not simply seek an outcome
regarded as desirable or convenient.
1.354
Limitations on human rights must also be rationally connected to, and a
proportionate way to achieve, the legitimate objective. The statement of
compatibility provides no information or explanation of how the measure is
rationally connected to (that is, effective to achieve) the stated objective.
1.355
As to the proportionality of the measure, it is relevant whether there
are adequate safeguards in place and whether there are other less
rights-restrictive means of achieving the objectives. As to safeguards, the
statement of compatibility explains:
A decision on reporting a debt will ultimately be a matter
for the relevant health authority. For example, a relevant health authority may
choose not to inform the Department of a health debt where the debt is too
small to warrant a referral, where the authority is inclined to waive the debt
for compelling/compassionate reasons or where an appropriate payment plan is in
place. When a debt is resolved, the health authority will notify the Department
that this has happened.
In situations where an outstanding public health debt has
been reported, the initial action for the Department will be to encourage the
visa holder to contact the health facility to which the monies are owed and
arrange to pay the debt. Breach of a visa condition is a ground for considering
cancelling that visa. However, the preferred outcome is to have the debt repaid
prior to the person being granted further visas or cancellation being pursued.
On occasions consideration of visa cancellation may be appropriate; however
this would be discretionary and due consideration will be given to individual
circumstances.[292]
1.356
The statement of compatibility further notes that it 'is intended that
cancellation will only be considered in cases where there is a serious breach
or repeated breaches suggest[ing] a pattern of adverse behaviour in the area of
compliance with visa conditions'.[293] However, these limitations appear to be matters within the discretion of the
decision-maker and matters of departmental policy rather than a legal
requirement. It appears as a matter of law that the visa cancellation power
could be used in less serious cases. Accordingly, such discretionary safeguards
may not be sufficient from the perspective of international human rights law.
1.357
It also appears there are a range of other, less rights-restrictive
measures that may be available to achieve the stated objective. For example, raising
awareness of a person's liability to pay for their health care costs could
occur at the time the person applies for the visa through the provision of
information. It is not clear from the statement of compatibility whether less
rights-restrictive alternatives had been considered, which raises further
questions as to the proportionality of the measure.
Schedule 2: Amendments to visa conditions
1.358
Schedule 2 of the amendment regulations sought to introduce a series of
amendments to the Migration Regulations 1994 (the migration regulations) relating to visa conditions with which visa holders must comply, namely:
- broadening the wording of condition 8303 in Schedule 8 of the
migration regulations so as to make it a condition of a person's visa that the
visa-holder must not become involved in 'activities that endanger or threaten
any individual'.[294] This proposed condition was in addition to the current requirement that visa
holders do not become involved in 'activities disruptive to, or violence
threatening harm to, the Australian community or a group within the Australian
community'.[295] Condition 8303 applies to most temporary visas.
- extending condition 8564 so that it would be a mandatory
condition for most temporary visa holders. Condition 8564 requires visa holders
not to engage in criminal conduct. At present, the condition only applies on a
discretionary basis to Bridging Visa E (BVE).[296]
- introducing new condition 8304 to create a new condition
requiring visa holders to identify themselves by the same name in all dealings
with Commonwealth, State or Territory government agencies. The condition would
have applied mandatorily to most temporary visas.
1.359
Non-compliance with the proposed visa conditions would mean that the
visa holder may be considered for visa cancellation under section 116(1)(b) of
the Migration Act 1958 (Migration Act). Under section 116(1)(b),
officers have a discretion to determine whether visa cancellation was
appropriate.
1.360
Where a person's visa is cancelled on grounds of breach of condition 8303
or 8564, the amendment regulations also sought to introduce amendments to
prevent former temporary visa holders whose visas had been cancelled on these
'behaviour-related'[297] grounds from making a BVE application. The effect of this is that persons whose
visas were cancelled would not be allowed back into the community on a bridging
visa while arrangements were made for those persons to depart, unless the
department has assessed that the person does not pose a risk to the community
and grants a BVE without the need for the non-citizen to apply.[298]
Compatibility of the measures with
the right to liberty
1.361
Article 9 of the International Covenant on Civil and Political Rights
(ICCPR), prohibits the arbitrary and unlawful deprivation of liberty. This
prohibition against arbitrary detention requires that detention must be lawful,
reasonable, necessary and proportionate in all the circumstances and subject to
regular review. The concept of 'arbitrariness' extends beyond the apparent
'lawfulness' of detention to include elements of injustice, lack of predictability
and lack of due process.[299] The right to liberty applies to all forms of deprivations of liberty, including
immigration detention, although what is considered arbitrary may vary depending
on context.
1.362
Under the Migration Act, the cancellation of the visa of a non-citizen
living in Australia results in that person being classified as an unlawful
non-citizen, and subject to mandatory immigration detention prior to removal or
deportation[300] A person whose visa is cancelled under section 116(1)(b) of the Migration
Act for breaching the proposed visa conditions would be detained and become
liable for removal from Australia. In particular, persons who breach the
'behaviour related' conditions in conditions 8303 and 8564 would not be
eligible for a bridging visa and so would not be permitted to remain in the
community. This includes holders of temporary protection visas and safe haven
visas who have been found to engage Australia's non-refoulement obligations.[301] The measure accordingly engages and limits the right to liberty.
1.363
The statement of compatibility acknowledges that the right to liberty is
engaged by the introduction of the new visa conditions. However, for each of
the proposed new or expanded visa conditions, the statement explains that the
limitations on the right to liberty are reasonable, proportionate and
necessary.
1.364
For the amendments to condition 8303, the statement of compatibility
explains that the purpose of the amendment is 'the protection of the Australian
community from behaviour that threatens or endangers an individual'.[302] The statement of compatibility describes the legitimate objective of the
expanded application of condition 8564 to be 'the protection of the Australian
community from criminal conduct'.[303] For the amendments to visa condition 8304, the statement of compatibility
explains that the legitimate objective is 'the protection of the Australian
community from identity fraud'.[304] The amendments to the BVE application validity requirements were stated to be
for the safety of the Australian community.
1.365
Each of these objectives is capable of being a legitimate objective for
the purposes of international human rights law. However, the statement of
compatibility provides limited information about the importance of these
objectives in the context of the particular measures. In order to show that the
measures are in furtherance of 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. This
may include, for example, information or evidence that demonstrates that
introducing a requirement that visa holders do not become involved in
activities that endanger or threaten individuals is a pressing or substantial
concern. The statement of compatibility also provides limited information as to
whether the limitations imposed by the measures are rationally connected to
(that is, effective to achieve) the stated objectives.
1.366
There are also concerns in relation to the proportionality of each of
the measures. In relation to condition 8303, the statement of compatibility
explains that the amendment would empower the minister to cancel a person's
visa in a broad range of circumstances:
...where they [(visa holders)] engage in adverse behaviour
against individuals within the community, such as where there is objective
evidence of harassment, stalking, intimidation, bullying, or otherwise
threatening an individual, but which may not necessarily be subject to criminal
sanctions. These activities may include public 'hate speech' or online
vilification targeted at both groups and individuals based on gender,
sexuality, religion and ethnicity. Evidence provided by law enforcement
agencies of conspiracy to cause harm or incite violence against an individual
can also be considered under condition 8303.[305]
1.367
While the statement of compatibility explains that the minister or
officers determining whether a visa should be cancelled for breaching condition
8303 may exercise discretion taking 'account of all of the circumstances of the
applicant and consider[ing] each case on its own merits',[306] it remains the case that the visa condition requiring persons not to be
involved in 'activities that endanger or threaten any individual' is very
broad. It includes, for example, conduct that falls short of criminal conduct.[307] It would appear to be broad enough to allow the minister or departmental
officer the discretion to cancel a visa (and consequently detain a person) in
circumstances where the conduct is not unlawful but is merely disruptive or
undesirable. This raises serious concerns that the measure may not have been
sufficiently circumscribed to achieve the stated objective of the measure.
1.368
Similarly in relation to the expanded application of condition 8564 to
most temporary visas, no information is provided in the statement of
compatibility as to the meaning of 'criminal conduct'. The statement of
compatibility explains that this condition 'will capture criminal conduct that
is not captured by section 501 or paragraph 116(1(e)'.[308] This therefore would appear to include within its scope potentially minor
criminal conduct, and conduct which has not necessarily been the subject of a
criminal conviction in a court of law. This similarly raises concerns as to the
proportionality of the measure.
1.369
In relation to new condition 8304, the statement of compatibility
explains that the introduction of this condition is 'in response to heightened
risks when a person is able to deal with different government agencies under
different names preventing law enforcement agencies from sharing important
information and protecting Australia's national security'.[309] While the statement of compatibility states that the cancellation power for breaching
this condition will be enlivened 'where there is evidence of intentional use of
more than one identity concurrently in order to gain an advantage or deceive',[310] it does not appear that this is an express requirement in either proposed
condition 8304 or section 116(1)(b) of the Migration Act. It is not clear
whether this condition could potentially cover minor discrepancies (such as
incorrect spelling of names on a person's Medicare card) and also whether it
sufficiently accommodates visa holders whose identity documents from their home
country have been spelled incorrectly or inconsistently, or are incorrectly
translated. This raises concerns as to whether there are less rights-restrictive
measures available and whether the measure is sufficiently circumscribed.
1.370
The new visa conditions, and the consequence of detention following visa
cancellation for breach of those conditions, is of particular concern in
relation to visa holders who have been found to engage Australia's
non-refoulement obligations, as it gives rise to the prospect of prolonged or
indefinite detention. The statement of compatibility explains that Australia
will not remove a person where it would be inconsistent with Australia's
non-refoulement obligations (the consequence of which may be prolonged or
indefinite detention), however it further states that the 'determining factor'
in determining whether detention is arbitrary is 'not the length of detention,
but whether the grounds for detention are justifiable'.[311] The statement of compatibility further explains non-refoulement obligations are
considered as part of the discretion to cancel a visa under section 116.
However, while the United Nations Human Rights Committee has accepted that
detention for the control of immigration is not arbitrary per se,[312] it has consistently considered that Australia's application of mandatory
immigration detention (including the possibility of prolonged or indefinite
detention) and the impossibility of challenging such detention is contrary to
Article 9(1) of the ICCPR.[313]
Further, the UN Human Rights Council's Working Group on Arbitrary Detention
has recently stated that the detention of asylum seekers, immigrants or
refugees must never be unlimited or of excessive length, and a maximum period
should be provided by law.[314]
Compatibility of the measures with
the right to the protection of the family
1.371
The right to protection of the family includes ensuring that family
members are not involuntarily and unreasonably separated from one another. This
right may be engaged where a person is expelled from a country without due
process and is thereby separated from their family.[315] While there is significant scope for states parties to enforce their
immigration policies and to require departure of unlawfully present persons, where
a family has been in the country for a significant duration of time additional
factors justifying the separation of families going beyond a simple enforcement
of immigration law must be demonstrated in order to avoid a characterisation of
arbitrariness or unreasonableness.[316] The measure engages and limits the right to protection of the family as visa
cancellation for breaching the proposed visa conditions could operate to
separate family members.[317]
1.372
Limitations on the right to protection of the family are permissible
where the limitations pursue a legitimate objective, and are rationally
connected and proportionate to that objective. As noted earlier, while the
stated objectives of the proposed new or expanded visa conditions are capable
of being legitimate objectives for the purposes of international human rights
law, insufficient information was provided to determine the importance of the
objectives in the specific context of the measures. Similarly, there is limited
information in the statement of compatibility as to the rational connection
between the stated objectives and the measures.
1.373
As to proportionality, the statement of compatibility explains that any
separation of family members in Australia by a person being removed as a result
of breaching their visa conditions will not be inconsistent with the right to
protection of the family, as 'the decision to cancel will appropriately weigh
the impact of separation from family from the best interests of any children
against the non-citizen's risk to the community by engaging in this prohibited
conduct'.[318] However, no information is provided in the statement of compatibility as to
whether such factors are weighed or balanced as a matter of policy rather than
as a legal requirement. This raises concerns as to whether there are sufficient
safeguards to protect against arbitrary interference with family life.
Compatibility of the measure with
the freedom of assembly and freedom of expression
1.374
The right to freedom of opinion and expression is protected by article 19
of the ICCPR. The right to freedom of opinion is the right to hold opinions
without interference, and cannot be subject to any exception or restriction.
The right to freedom of expression extends to the communication of information
or ideas through any medium, including written and oral communications, the
media, public protest, broadcasting, artistic works and commercial advertising.
The right to freedom of assembly is guaranteed by article 21 of the ICCPR. The
right protects the right of individuals and groups to meet and engage in
peaceful protest and other forms of collective activity in public.
1.375
Freedom of assembly and freedom of expression may be subject to
permissible limitations that are necessary to protect the rights or reputations
of others, national security, public order (ordre public), or public
health or morals. Limitations must be prescribed by law, pursue a legitimate
objective, be rationally connected to the achievement of that objective and a
proportionate means of doing so.
1.376
The statement of compatibility does not address whether the rights to
freedom of assembly and expression are engaged or limited by the measures.
However, it appears that amended condition 8303 could engage and limit these
rights insofar as it allows a person's visa to be cancelled where their conduct
is threatening to an individual. As noted earlier in the context of the right
to liberty, the scope of the new condition is not clear. It would appear to
apply to conduct falling short of criminal conduct, and appears broad enough to
apply to exercises of the freedom of expression and assembly, such as a
campaign of civil disobedience or acts of political protest within an
immigration detention facility that is deemed by an official or the minister to
be threatening. This raises concerns as to whether the limitation on these
rights pursues a legitimate objective, is rationally connected to the objective
and is proportionate. It would have been useful if such matters were addressed
in the statement of compatibility.
Compatibility of the measure with
non-refoulement obligations and the right to an effective remedy
1.377
Australia has non-refoulement obligations under the Refugee Convention,
the ICCPR and the Convention Against Torture (CAT). This means that Australia
must not return any person to a country where there is a real risk that they
would face persecution, torture or other serious forms of harm, such as the
death penalty; arbitrary deprivation of life; or cruel, inhuman or degrading
treatment or punishment.[319] Independent, effective and impartial review by a court or tribunal of decisions
to deport or remove a person, including merits review in the Australian
context, is integral to giving effect to non-refoulement obligations.
Non-refoulement obligations are absolute and may not be subject to any
limitations.
1.378
As noted earlier, the statement of compatibility notes that the amended
visa conditions will apply to holders of temporary visa holders and safe haven
enterprise visa holders who have been found to engage Australia's non-refoulement
obligations. The statement of compatibility further states, however, that
'Australia takes its international obligations seriously, and will not remove a
person where it would be inconsistent with Australia's non-refoulement
obligations'.[320]
1.379
However, section 198 of the Migration Act requires an immigration
officer to remove an unlawful non-citizen (which, as noted earlier, includes
persons whose visas have been cancelled) in a number of circumstances as soon
as reasonably practicable. Section 197C of the Migration Act also provides
that, for the purposes of exercising removal powers under section 198, it is
irrelevant whether Australia has non-refoulement obligations in respect of an
unlawful non-citizen. There is thus no statutory protection ensuring that an
unlawful non-citizen to whom Australia owes protection obligations will not be
removed from Australia, nor is there any statutory provision granting access to
effective and impartial review of the decision as to whether removal is
consistent with Australia’s non-refoulement obligations. As stated in
previous human rights assessments by the committee, ministerial discretion not
to remove a person is not a sufficient safeguard under international law.[321] This therefore raises serious concerns that the expansion of the conditions
with which visa holders must comply (the breach of which may result in visa
cancellation and deportation), in the absence of any statutory protections to
prevent the removal of persons to whom Australia owes non-refoulement obligations, may be incompatible with the obligation of non-refoulement in
conjunction with the right to an effective remedy.
Compatibility of the measure with
the right to freedom of movement
1.380
The right to freedom of movement is protected under article 12 of the
ICCPR and includes a right to leave Australia as well as the right to enter,
remain, or return to one's 'own country'. 'Own country' is a concept which
encompasses not only a country where a person has citizenship but also one
where a person has strong ties, such as long standing residence, close personal
and family ties and intention to remain, as well as the absence of such ties
elsewhere.[322]
1.381
The statement of compatibility does not acknowledge that the right to
enter one's own country is engaged and limited. While the amended or expanded
visa conditions apply to temporary visa holders, it is possible that the right
to freedom of movement is engaged by this measure, as the visa cancellation and
subsequent deportation may apply to a person who, despite not holding formal
citizenship, has strong ties to Australia such that Australia can be considered
their 'own country'. This may apply, for example, to holders of temporary
protection visas whose protection claims have not been determined for many years,
during which time they may have established close personal and family ties.
1.382
As noted earlier, there are concerns in relation to whether the
limitations pursue a legitimate objective, are rationally connected to the
objective and are proportionate. It would have been useful if such matters were
addressed in the statement of compatibility. In particular, it would have been
useful for the statement of compatibility to explain whether there are any
safeguards in place applicable to individuals for whom Australia is their 'own
country', such as ensuring their visa is only cancelled as a last resort where
other mechanisms to protect the safety of the Australian community are
unavailable.
Schedule 2: Changes to Public Interest Criterion 4020
1.383
The amendment regulations had also proposed to broaden the visa refusal
powers on the grounds of fraud under Public Interest Criterion (PIC) 4020 to
allow consideration of any previous cases of fraud in the 10 years prior to the
current visa application (rather than the current requirement of 12 months) and
also of instances of fraud in previous visa applications made (in addition to
the current provision that limits consideration to fraud in respect of visas
currently held).
Compatibility of the measure with
the right to the protection of the family
1.384
As noted above, the right to protection of the family includes ensuring
that family members are not involuntarily and unreasonably separated from one
another. The measure engages and limits the right to protection of the family
as persons who have engaged in fraud will be excluded from further visa
applications for 10 years, and therefore unable to return to Australia, which
may involve the separation of families.[323]
1.385
The statement of compatibility states the extended period of 10 years is
necessary to protect the integrity of the visa framework:
There is a risk that where a visa applicant has provided
fraudulent documents in visa applications, they will also give incorrect, bogus
or fraudulent information to other government agencies, such as social security
and tax. It is the Department's view that a lesser time exclusion would not be
as effective in achieving this goal given the current trend for applicants to
actively 'wait out' the exclusion period and immediately re-apply.[324]
1.386
Protecting the integrity of the visa framework is likely to be a
legitimate objective for the purposes of international human rights law.
Expanding the period in which previous cases of fraud can be considered from 12
months to 10 years is likely to be rationally connected to this objective.
1.387
As to proportionality, the statement of compatibility explains that any
separation of family members as a result of the changes to PIC 4020 will not be
inconsistent with the right to protection of the family, as application of PIC
4020 'will take into account any mitigating or compelling circumstances and
weigh these against the need to protect the integrity of the migration
programme'.[325] In this respect the statement of compatibility explains that under policy
guidance, flexibility is applied when officers assess a visa applicant against
PIC 4020. The circumstances the officers will take into account include:
- whether the incorrect information was more than a typographical
error, or the person did not realise the documents provided were not genuine;
- whether the omission was the result of the applicant being
ignorant to its relevance;
- whether the information was also 'false or misleading' at the
time it is given.[326]
1.388
The statement of compatibility further explains that policy guidance
states that applicants who accidentally provide false or incorrect information
will not be subject to refusal (including typographical errors,
misunderstanding the requirements of the visa application form, or the
provision of the wrong documents).[327] Delegates also have a discretion to waive the requirements of PIC 4020 where
the existing circumstances of the individual have changed to the extent where
the person should be given a visa, such as in compelling and compassionate
circumstances (including where the person is unfit to travel, death or serious
illness in the family, or natural disaster or civil unrest in the applicant's
home country).[328]
1.389
While these safeguards in the form of policy guidance may be capable of
addressing some concerns, policy guidance is less stringent than the protection
of statutory processes as the safeguards within that policy guidance can be
removed, revoked or amended at any time and are not required as a matter of
law. Additionally, decision-making by a delegate as to whether fraud has
occurred pursuant to PIC 4020 falls short of the ordinary manner in which fraud
or misrepresentation is determined to have occurred, that is, through
adjudication by a court. This raises concerns as to whether the safeguards
provided in the policy guidance are sufficient, and whether the interference on
the right to protection of the family is proportionate.
Committee comment
1.390
The committee notes that the Migration Legislation Amendment
(2017 Measures No. 4) Regulations 2017 were disallowed on 5 December
2017.
1.391
The committee draws the human rights implications of the Migration
Legislation Amendment (2017 Measures No. 4) Regulations 2017 to the
attention of the minister and parliament.
Migration Regulations (IMMI 17/129: Specification of Regional Areas for a
Safe Haven Enterprise Visa) Instrument 2017 [F2017L01607]
Purpose |
Specifies postcodes within
Australia that are taken to be 'regional areas' for the purposes of the
Migration Regulations 1994 |
Portfolio |
Home Affairs |
Authorising legislation |
Migration Regulations 1994 |
Last day to disallow |
Exempt from Disallowance[329] |
Rights |
Multiple Rights (see Appendix
2) |
Status |
Advice only |
Specification of postcodes within Australia for Safe Haven Enterprise visas
1.392
The Migration Regulations (IMMI 17/129: Specification of Regional Areas
for a Safe Haven Enterprise Visa) Instrument 2017 (the instrument) specifies
postcodes within Australia which are taken to be a 'regional area' for the
purpose of the provisions of the Migration Regulations 1994 (the migration
regulations) relating to Safe Haven Enterprise Visas (SHEV). Applicants for a
SHEV must include in their application an indication that the applicant or a
member of the applicant's family unit intends to study or work while accessing
minimum social security benefits in a regional area.
Compatibility of the measure with
multiple rights
Previous committee consideration of
Safe Haven Enterprise Visas
1.393
Safe haven enterprise visas (SHEVs) were created by the Migration and
Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload)
Act 2014 (RALC Act). SHEVs are a form of temporary protection visa that may
be granted to persons who are found to be owed protection obligations and who
indicate an intention to work or study in regional areas in Australia. The
visas are granted for a period of five years.
1.394
The committee has previously reported on the human rights compatibility
of temporary protection visas (TPVs) and SHEVs.[330] The committee has previously considered that SHEVs, as a form of temporary
protection visa, may engage multiple human rights, in particular Australia's
non-refoulement obligations and the right to freedom of movement.[331]
Non-refoulement
1.395
Australia's non-refoulement obligations mean that Australia must not
return any person to a country where there is a real risk that they would face
persecution, torture or other serious forms of harm, such as the death penalty;
arbitrary deprivation of life; or cruel, inhuman or degrading treatment or
punishment. The committee has previously considered that the absence of
procedural and substantive safeguards to protect against the refoulement of
holders of TPVs and SHEVs may be incompatible with Australia's non-refoulement
obligations.[332]
Right to freedom of movement
1.396
Article 12 of the ICCPR protects freedom of movement and relevantly
includes the right to move freely within a country for those who are lawfully
within the country, the right to leave any country and the right to enter one's
own country. The right may be restricted in certain circumstances.
1.397
The right to leave a country encompasses both the legal right and
practical ability to leave a country. It applies not just to departure for
permanent emigration but also for the purpose of travelling abroad; and applies
to every person lawfully within Australia, including those who have been recognised
as refugees. States are therefore required to provide necessary travel
documents to ensure this right can be realised.[333]
1.398
People who hold a SHEV, or whose last substantive visa was a SHEV, are
barred from making a valid application for a Bridging Visa B (a category of
visa which allows overseas travel). As the SHEV class visa has a more
restricted travel facility than the Bridging Visa B class, the committee has
previously noted that prohibiting SHEV holders from applying for a Bridging
Visa B engages and limits the right to freedom of movement.[334] The committee concluded that a person who has been recognised as one to whom
Australia owes protection obligations, but does not have the necessary travel
documents to allow them to travel (and return to Australia at the conclusion of
their travel), is not able to practically realise their right to leave the
country. The committee therefore previously concluded that the introduction of
SHEVs engages and limits the right to freedom of movement for SHEV holders; and
that the minster had not provided sufficient justification so as to enable a
conclusion that the regulation is compatible with this right.[335]
1.399
In the present instrument, specifying the postcodes in which persons who
are SHEV holders may study or work also engages and limits the right of persons
lawfully within the territory to have liberty of movement and freedom to choose
their own residence. The United Nations (UN) Human Rights Committee has stated
that an alien who entered the country illegally, but whose status has been
regularised, should be considered to be lawfully within the territory for the
purposes of the right to freedom of movement.[336] This means that, once a person is lawfully within a country, any limitation on
a person's freedom of movement has to be justified by article 12(3) of the
ICCPR, which provides that freedom of movement shall not be subject to any
restrictions except those which are provided by law, and are necessary to
protect national security, public health or morals or the rights and freedoms
of others.[337]
1.400
While noting that a statement of compatibility was not required to be
tabled with this instrument,[338] the committee's legislative terms of reference require it to provide an
assessment as to the compatibility of the instrument with human rights.[339] Where a legislative instrument engages human rights it is good practice for an
assessment to be provided as to human rights compatibility.[340] In the absence of further information, it is not possible to conclude that the
limitation on the right to freedom of movement is justifiable.
Committee comment
1.401
It is not possible to conclude that the proposed amendments to
the safe haven enterprise visas introduced by the instrument are compatible
with human rights.
1.402
The committee draws the human rights implications of the
instrument to the attention of the parliament.
Social Services Legislation Amendment (Drug Testing Trial) Bill 2018
Purpose |
Seeks to introduce a two
year mandatory drug testing trial for 5000 recipients of Newstart Allowance
and Youth Allowance |
Portfolio |
Social Services |
Introduced |
House of Representatives,
28 February 2018 |
Rights |
Social security; adequate
standard of living; equality and non-discrimination; privacy (see Appendix
2) |
Status |
Advice only |
Background
1.403
The committee previously examined the human rights compatibility of a mandatory
drug testing trial for new recipients of Newstart Allowance and Youth Allowance
(proposed drug testing trial) in its Report 8 of 2017 and Report 11
of 2017. This measure was previously included as Schedule 12 to the Social
Services Legislation Amendment (Welfare Reform) Bill 2017 (Welfare Reform
Bill).[341] However, the Welfare Reform Bill was subsequently amended to remove Schedule 12.
1.404
The Social Services Legislation Amendment (Drug Testing Trial) Bill 2018
(the Drug Testing Trial Bill) is substantially the same as Schedule 12 of the Welfare
Reform Bill. Accordingly, the committee's previous assessment is summarised
below.
Summary of the measures in the Drug Testing Trial Bill
1.405
The Drug Testing Trial Bill seeks to make a number of amendments to the Social
Security Act 1991 (Social Security Act), the Social Security
(Administration) Act 1999 and consequential amendments to other Acts that
were contained in Schedule 12 to the Welfare Reform Bill. As with the Welfare
Reform Bill, the Drug Testing Trial bill seeks to establish a mandatory drug
testing trial involving 5,000 new recipients of Newstart Allowance and Youth
Allowance. The Drug Testing Bill specifies that the regions to be the subject
of the trial are Canterbury-Bankstown (New South Wales) Logan (Queensland) and
Mandurah (Western Australia). If they reside in a trial site, all people making
a claim for Newstart Allowance or Youth Allowance after the commencement of the
Drug Testing Trial Bill would be asked to acknowledge on their claim form that
they may be required to undergo a drug test as a condition of payment.
1.406
Recipients who test positive will then be subject to income management
(including the use of a cashless welfare card) for 24 months and be subject to
further random tests. If a recipient tests positive to a subsequent test, they
will be required to repay the cost of these tests through reduction in their
fortnightly social security payment. This may be varied due to hardship.
Recipients who test positive to more than one test during the 24 month period
will be referred to a contracted medical professional for assessment.[342] If the medical professional recommends treatment, the recipient will be
required to complete certain treatment activities, such as counselling,
rehabilitation and/or ongoing drug testing, as part of their employment pathway
plan.[343]
1.407
Recipients who do not comply with their employment pathway plan,
including drug treatment activities, would be subject to a participation
payment compliance framework, which may involve the withholding of payments.
Recipients would not be exempted from this framework if the reason for their
non-compliance is wholly or substantially attributable to drug or alcohol use.[344]
1.408
Recipients who refuse to take the test will have their payment cancelled
on the day they refuse, unless they have a reasonable excuse. If they reapply,
payment will not be payable for 4 weeks from the date of cancellation and they
will still be required to undergo random mandatory drug testing.
Compatibility of the measure with human rights
1.409
The committee examined this reintroduced measure in its previous
assessment of the proposed drug testing trial in Report 8 of 2017 and Report
11 of 2017. The previous human rights analysis stated that the proposed
drug testing trial would engage and limit a number of human rights, in
particular the right to privacy, the right to social security and right to an
adequate standard of living, and the right to equality and non-discrimination.
1.410
As to the right to social security and the right to an adequate standard
of living, the previous analysis noted that the measure engaged these rights in
three ways. First, the measure may result in a reduction in social security
payments to cover the costs of positive drug tests, or penalise a person for failing
to fulfil their mutual obligation requirements. Secondly, the risk of the
result of the test being disclosed to law enforcement, immigration or other
welfare authorities may cause people to avoid applying for necessary welfare
payments, causing destitution. Thirdly, the measure may impermissibly
discriminate against those with substance addictions which rise to the level of
disability. The previous human rights analysis stated that the measure was
likely to be incompatible with the right to social security and adequate
standard of living as it appeared the measure was unlikely to be proportionate
to the legitimate objective of the measure.[345] These same concerns apply equally to the reintroduced measures.
1.411
As to the right to privacy, the previous human rights analysis noted
that the bill engaged and limited the right to privacy in several respects.
First, drug testing is an invasive procedure and so may violate a person's
legitimate expectation of privacy. Secondly, the measure requires the divulging
of private medical information to a firm contracted to conduct the drug
testing. Thirdly, the use of a card in purchasing essential goods after a
person's welfare benefit is quarantined will disclose that a person receives
quarantined social security payments. The previous human rights analysis stated
that the bill appeared to provide adequate safeguards with respect to the
retention and disclosure of drug test results, which were to be set out in
proposed Social Security (Drug Test Rules) in the event the bill was passed.[346] However, overall with respect to the use of personal information and the issues
of bodily integrity, noting that limitations on this right must be no more
extensive than what is strictly necessary to achieve the legitimate objective
of the measure, the previous human rights analysis concluded that the measure
was likely to be incompatible with the right to privacy. While the measure was
considered to be aimed at a legitimate objective, there appeared to be other,
less rights restrictive ways to achieve this objective.[347]
1.412
It is noted that the Drug Testing Trial Bill additionally provides that
the Secretary of the Department of Social Services must determine that a
person is not to be subject to income management if the Secretary is satisfied
that being subject to the regime would pose a serious risk to the person's
mental, physical or emotional wellbeing.[348] This is a change from the measure as it was initially introduced in the Welfare
Reform Bill. At the time the committee undertook its initial analysis of the
Welfare Reform Bill, this was a matter of discretion for the Secretary.[349] However, the minister had foreshadowed these amendments in his response to the
Welfare Reform Bill, and the human rights analysis considered that the amended
provision, while alleviating some of the concerns as to the proportionality of
the interference with the right to privacy, still raised human rights concerns.[350] This is because the provisions appear to operate inflexibly, raising the risk
that the regime will be applied to people who do not need assistance in
managing their budget.[351] These concerns remain in the Drug Testing Trial Bill. This is particularly the
case in light of the fact that, although the Secretary must determine
that a person is not to be subject to income management if the Secretary is
satisfied that being subject to the regime would pose a serious risk to the
person's mental, physical or emotional wellbeing,[352] the Secretary is not required, when determining whether someone should be
subject to income management, to 'inquire into whether the person being subject
to the income management regime...poses a serious risk to the person's mental,
physical or emotional wellbeing'.[353]
1.413
Finally, as to the right to equality and non-discrimination, the
previous human rights analysis noted that the measure may disproportionately
affect those with drug and alcohol dependencies[354] and Indigenous people. The previous human rights analysis stated that the
measure was likely to be incompatible with the right to equality and non-discrimination,
noting the measure appeared likely to have a disproportionate negative impact
on particular groups and that it appeared the measure was unlikely to be the
least rights-restrictive measure.[355] It is noted that the statement of compatibility to the Drug Testing Trial Bill
states (in contrast to the Welfare Reform Bill) that individuals will be
selected for drug testing at random.[356] However, it goes on to state, in relation to Australia's obligations under the
Convention on the Elimination of all forms of Racial Discrimination and the
Convention on the Rights of Persons with a Disability that 'it is intended that
recipients will be selected for testing on the basis of their risk factors for
having drug misuse issues'.[357] It is therefore not clear whether the selection process for the drug testing
trial within the trial area will be entirely random.[358] In any event, concerns remain as to the disproportionate negative impact on
those with drug and alcohol dependencies and Indigenous people. It also remains
the case that the minister has not explained how income management and, in
certain circumstances, reducing payments of persons who fail to undertake
treatment activities would be an effective or proportionate means of ensuring
job seekers get the support they need to address drug dependency issues.
Committee comment
1.414
The committee refers to its previous consideration of the
proposed mandatory drug testing trial for new recipients of Newstart Allowance
and Youth Allowance in its Report 8 of 2017 and Report 11 of 2017.
The previous human rights assessment of the measure concluded that the proposed
mandatory drug testing trial was likely to be incompatible with the right to
privacy, the right to social security and right to an adequate standard of
living, and the right to equality and non-discrimination.
1.415
Noting the human rights concerns raised in relation to the proposed
mandatory drug testing trial in the Welfare Reform Bill, the committee draws
the human rights implications of the reintroduced measures in the Drug Testing
Trial Bill to the attention of the parliament.
Telecommunications (Interception and Access) Regulations 2017 [F2017L01701]
Purpose |
Remakes and repeals the Telecommunications
(Interception and Access) Regulations 1987 to prescribe the forms in relation
to issuing warrants and authorisations under the Telecommunications
(Interception and Access) Act 1979 and prescribe the role of a Public
Interest Advocate |
Portfolio |
Attorney-General |
Authorising legislation |
Telecommunications
(Interception and Access) Act 1979 |
Last day to disallow |
Currently, 8 May 2018
(Senate) |
Rights |
Privacy; freedom of
expression; effective remedy; fair hearing (see Appendix 2) |
Status |
Advice only |
Background
1.416
The committee has considered proposed amendments to the Telecommunications
(Interception and Access) Act 1979 (TIA Act) on a number of previous occasions.[359]
1.417
As the TIA Act was legislated prior to the establishment of the
committee, the scheme has never been required to be subject to a foundational
human rights compatibility assessment in accordance with the terms of the Human
Rights (Parliamentary Scrutiny) Act 2011. As the committee has previously
noted,[360] it is difficult to assess the human rights compatibility of measures which
extend, amend or operationalise the TIA Act without the benefit of a
foundational human rights assessment.
1.418
The Telecommunications (Interception and Access) Regulations 2017
[F2017L01701] (the regulations) repeal and remake the Telecommunications
(Interception and Access) Regulations 1987 (1987 regulations), which are due to
sunset. The explanatory statement explains that the regulations remake the 1987
regulations 'in substantially the same form, with minor modifications to ensure
the regulations remain fit for purpose'.[361] The regulations prescribe matters including the forms in relation to issuing
warrants and authorisations under the TIA Act and the role of the Public
Interest Advocate (PIA) in the journalist information warrant process.
Warrants authorising
agencies to intercept and access communications and telecommunications data
1.419
The TIA Act provides a legislative framework that criminalises the
interception and accessing of telecommunications. However, the Act sets out
exceptions that enable defined or declared agencies to apply for access to
communications[362] and telecommunications data.[363]
1.420
Chapters 2 and 3 of the TIA Act provide for warranted access by an agency
to the content of communications, including both communications passing across
telecommunications services[364] and stored communications content. Chapter 4 of the TIA Act provides for
warrantless access to telecommunications data (metadata) by a defined or
declared 'interception agency'.
1.421
However, access to telecommunications data relating to a journalist or
their employer where the purpose is to identify a journalist's source is
prohibited unless a warrant has been obtained (a 'journalist information
warrant').[365]
1.422
As noted above, the regulations prescribe the forms in relation to
issuing warrants and authorisations, including warrants authorising agencies to
intercept telecommunications, stored communication warrants and journalist
information warrants. The prescribed forms are substantially the same as those
contained in the 1987 regulations.
Compatibility of the measure with
the right to privacy
1.423
The right to privacy includes 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. As the regulations relate to the powers of agencies to
access an individual's private communications and telecommunications data, the
regulations engage and limit the right to privacy.
1.424
A limitation on the right to privacy will be permissible under
international human rights law where it addresses a legitimate objective, is
rationally connected to that objective and is a proportionate means of
achieving that objective.
1.425
The statement of compatibility acknowledges that the warrants and
authorisations regime engages the right to privacy and identifies the
objectives of the measure as 'national security, public safety, addressing
crime, and protecting the rights and freedoms of individuals'.[366] In general terms, these may be capable of constituting a legitimate objective
for the purposes of international human rights law. Enabling access to
telecommunications and communications data would also appear to be rationally
connected to this objective.
1.426
As to the proportionality of the measure, the statement of compatibility
focuses on safeguards in relation to the journalist information warrant process
(discussed from [1.433] below) but provides little further information in
relation to the other prescribed warrants and authorisations.
1.427
In its consideration of measures enabling agencies to access powers
under the TIA Act,[367] the committee has previously noted that, although access to private
communications occurs via a warrant regime which itself may be sufficiently
circumscribed, the use of warrants does not provide a complete answer as to
whether chapters 2 and 3 of the TIA Act constitute a proportionate limit on the
right to privacy.
1.428
The committee has also previously raised concerns in relation to the warrantless
access to telecommunications data (metadata) under chapter 4 of the TIA Act.
These concerns included that the internal self-authorisation process for access
to telecommunications data by prescribed agencies did not contain sufficient
safeguards; the possibility of accessed data subsequently being used for an
unrelated purpose; and safeguards in relation to the period of retention of
such data.[368]
1.429
In relation to the specific situation of journalists and their sources,
the requirement of a warrant prior to accessing a journalist's
telecommunications data may provide a relevant safeguard. However, it is
unclear whether this is a sufficient safeguard as it does not prevent the
metadata of suspected sources being accessed without a warrant in order to determine
the identity of the source.
1.430
As these concerns in relation to the interception and access of
communications and telecommunications data by prescribed agencies under the TIA
Act remain unresolved, it cannot be determined that the limitation on the right
to privacy related to the regulations is proportionate to the stated objective.
On a number of previous occasions the committee has recommended that the TIA
Act would benefit from a foundational review of its human rights compatibility.[369]
Committee comment
1.431
The committee considers that the Telecommunications
(Interception and Access) Act 1979 would benefit from a full review of its
compatibility with the right to privacy, including the sufficiency of
safeguards.
1.432
Noting the human rights concerns regarding the right to privacy
identified in its previous reports on the regulations, the committee draws the
human rights implications of the regulations to the attention of the
parliament.
Journalist information warrant process and role of the Public Interest
Advocate
1.433
As noted at [1.421] above, the TIA Act prohibits eligible persons[370] from authorising access to telecommunications data relating to a journalist or
their employer where the purpose is to identify a journalist's source, unless a
journalist information warrant has been obtained.[371] The TIA Act sets out that the minister (in the case of ASIO) or the issuing
authority (in the case of enforcement agencies) must not issue a journalist
information warrant to eligible persons unless the minister or issuing
authority is satisfied that the public interest in issuing the warrant
outweighs the public interest in protecting the confidentiality of the identity
of the source.[372] The TIA Act also provides that in making that assessment, the minister or
issuing authority is to have regard to any submissions made by a 'Public
Interest Advocate' (PIA).[373]
1.434
The regulations prescribe the process for applying for a journalist
information warrant and matters relating to the performance of the role of a
PIA. Under the scheme the PIA will make submissions to the minister or issuing
authority as to whether a warrant should be issued and whether any conditions
or restrictions should be imposed on the warrant.[374] In relation to the role of the PIA, the regulations set out:
- that only the most senior members of the legal profession may be
appointed as PIAs and prescribing levels of security clearance for certain
PIAs;
- that agencies are required to provide a PIA with a copy of a
proposed request or application for a journalist information warrant or notify
a PIA prior to making an oral application;
- the processes for PIAs to receive further information (or a
summary of further information) provided to the minister or issuing authority
by agencies and to prepare new or updated submissions based on that
information; and
- matters relating to submissions made by PIAs.
1.435
The committee previously considered the measures outlined above, which
were contained in the Telecommunications (Interception and Access) Amendment
(Public Interest Advocates and Other Matters) Regulation 2015 [F2015L01658], in
its Thirty-second report of the 44th Parliament and Thirty-fifth
report of the 44th Parliament.[375] Drawing on the committee's previous assessments, matters raising human rights
concerns are set out below.
Compatibility of the measure with
multiple rights
1.436
Accessing telecommunications data relating to a journalist, or their
employer, where the purpose is to identify a journalist's source, in the
context of the journalist information warrant and PIA scheme, engages and may
limit multiple rights, including:
-
right to privacy;[376]
- right to freedom of expression;[377]
-
right to an effective remedy;[378] and
- right to a fair hearing.[379]
1.437
The statement of compatibility argues that the regulations engage the
right to privacy and engage and promote the right to freedom of expression, but
no assessment of the compatibility of the measure with the right to an
effective remedy or a fair hearing is provided.
1.438
In relation to the right to privacy, the statement of compatibility
explains that the role of the PIA in the warrant process 'ensures that any
interference with the privacy of any person or persons that may result from disclosing
telecommunications data would be lawful, justifiable and proportionate'.[380]
1.439
In relation to the right to freedom of expression, the statement of
compatibility contends that the warrant and PIA scheme intends to promote the
protection of this right:
...The existence of robust oversight of authorisation requests
protects against access to source information occurring in a way which is
inconsistent with the assurances of confidentiality that may be given by a
journalist to a source save where the public interest outweighs the maintenance
of confidentiality. Independent authority, through the creation of journalist
information warrants issued by a judicial officer or AAT member minimises the
potential for deterring sources from actively assisting the press to inform the
public on matters of public interest and ensures that the freedom of the press
is not adversely affected by the measure.
[...]
The Public Interest Advocate process further supports the
right to freedom of expression by requiring the balance of competing public
interests between disclosure of information for national security and law
enforcement purposes and the protection of confidential sources which support
freedom of expression.[381]
1.440
The statement of compatibility also outlines that the warrant and PIA
scheme contains adequate safeguards, including by requiring that agencies
provide a PIA with a copy of a proposed request or application for a warrant
prior to making an oral application; enabling PIAs to receive further
information provided to the minister or issuing authority by agencies; enabling
PIAs to prepare a new or updated submission based on any further information
provided; and by prescribing criteria that ensure PIAs are 'appropriately
skilled and independent and able to advocate in the public interest'.[382]
1.441
The committee previously considered that the journalist information
warrant and PIA schemes may seek to better protect the right to privacy and the
right to freedom of expression in the context of the TIA Act. However, it was
noted that the regulations may lack sufficient safeguards to appropriately
protect these rights. As noted at [1.429] above, it does not appear that any
safeguards exist in the regulations to prevent the metadata of suspected
sources being accessed directly, without a warrant, in order to determine the
identity of the source. Therefore, notwithstanding the journalist information
warrant process, the metadata measure may still have a 'chilling effect' on
freedom of expression for certain individuals.
1.442
Further, the committee's previous assessment noted that the regulations
do not enable the PIA to seek instructions from any person affected by the
journalist information warrant.[383] The previous analysis stated that it was unclear how a PIA would be able to
effectively represent the interests of a person subject to the warrant in these
circumstances, or provide information that would relevantly weigh on the
issuing authority's determination as to whether to grant a warrant.
1.443
Further, the previous assessment noted that the regulations provide no
procedural guarantees to ensure the PIA is able to make a submission on an
application for a journalist information warrant prior to the issuance of a
warrant.[384] In response to the committee's inquiries in this regard, the then
Attorney-General noted that it would be beyond the scope of the
regulation-making power in the TIA Act to prevent warrants being made in the
absence of a submission from a PIA, because the legislation provides discretion
to the issuing authority as to whether to issue a journalist information
warrant. While the previous analysis acknowledged that a minister may not make
delegated legislation that is contrary to the primary statute, it was
considered that this additional safeguard could be incorporated in an
appropriately amended primary statute. Despite relevant additional safeguards
identified in the Attorney-General's response the concern remained that a minister
or issuing authority may still issue a journalist information warrant without
any submission from a PIA, thereby limiting the right to a fair hearing and an
effective remedy, and, consequentially, the right to privacy and freedom of
expression.
1.444
As these concerns in relation to the measure remain unresolved, it
cannot be determined that the limitation on the right to privacy, the right to
freedom of expression, the right to a fair hearing and the right to an
effective remedy are proportionate to the stated objective.
Committee comment
1.445
The committee reiterates its view that the Telecommunications
(Interception and Access) Act 1979 would benefit from a full review of its
compatibility with the right to privacy, including the sufficiency of
safeguards.
1.446
Noting the human rights concerns identified in its previous
reports, the committee draws the human rights implications of this aspect of
the regulations to the attention of the parliament.
Bills not raising human rights
concerns
1.447
Of the bills introduced into the Parliament between 12 February and
22 March, the following did not raise human rights concerns (this may be
because the bill does not engage or promotes human rights, and/or permissibly
limits human rights):
- Banking Amendment (Rural Finance Reform) Bill 2018;
- Bankruptcy Amendment (Debt Agreement Reform) Bill 2018;
- Competition and Consumer Amendment (Free Range Eggs) Bill 2018;
- Competition and Consumer Amendment (Misleading Representations
About Broadband Speeds) Bill 2018;
- Interstate Road Transport Legislation (Repeal) Bill 2018;
- Marine Safety (Domestic Commercial Vessel) Levy Bill 2018;
- Marine Safety (Domestic Commercial Vessel) Levy Collection Bill
2018;
- Migration Amendment (Clarification of Jurisdiction) Bill 2018;
- National Housing Finance and Investment Corporation Bill 2018;
- National Housing Finance and Investment Corporation
(Consequential Amendments and Transitional Provisions) Bill 2018;
- Protection of the Sea Legislation Amendment Bill 2018;
- Social Services Legislation Amendment (14-month Regional
Independence Criteria) Bill 2018;
-
Treasury Laws Amendment (Illicit Tobacco Offences) Bill 2018;
- Treasury Laws Amendment (Income Tax Consolidation Integrity) Bill
2018;
- Treasury Laws Amendment (2018 Measures No. 3) Bill 2018; and
-
Veterans’ Affairs Legislation Amendment (Veteran-centric Reforms
No. 1) Bill 2018.
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