1.8
Article 17 of the International Covenant on Civil and Political
Rights (ICCPR) prohibits arbitrary or unlawful interferences with an
individual's privacy. The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information,
particularly the collection, storing, use and sharing of such information.
1.9
It is unclear from the statement of compatibility whether the collection
of health-related and welfare-related information and statistics would include
personal information. The definition of 'health-related information and
statistics' and 'welfare-related information and statistics' are defined in the
AIHW Act to mean 'information and statistics collected and produced
from' data relevant to health or health services and from data relevant to the
provision of welfare services respectively. This appears to be broad enough to
include personal information. The privacy policy of the Australian Institute of
Health and Welfare also indicates that personal information may be collected as
part of its statistics and information collecting mandate.[4] Therefore, the collection (and subsequent use) of health-related information
and welfare-related information by the Institute or the Institute in
association with other bodies or persons would appear to engage and limit the
right to privacy.
1.10
Limitations on the right to privacy will be permissible where they are
prescribed by law and are not arbitrary, they pursue a legitimate objective,
are rationally connected to (that is, effective to achieve) that objective and
are a proportionate means of achieving that objective. In order to be
proportionate, the limitation needs to be sufficiently circumscribed to ensure
that it is only as extensive as is strictly necessary to achieve its objective.
This includes having adequate and effective safeguards to ensure the limitation
is no more extensive than is strictly necessary to achieve its objective.
However, the statement of compatibility does not acknowledge the limitation on
the right to privacy and merely states that the bill 'does not engage any of
the applicable rights or freedoms'. Accordingly, no assessment is provided as
to whether the limitation on the right to privacy is permissible. The statement
of compatibility therefore does not meet the standards outlined in the
committee's Guidance Note 1.
1.11
The preceding analysis raises questions about the compatibility of the measure
with the right to privacy.
1.12
The statement of compatibility has not identified or addressed the right
to privacy. The committee therefore seeks the advice of the minister as to:
1.13
Currently, section 48A of the Migration Act applies to bar a person who
is a non-citizen from applying for particular visas where they have been
removed or deported from Australia under section 198 to another country but
have been refused entry by that country and so are returned to Australia.
1.14
The proposed amendments to sections 42(2A) and 48A in the bill would
expand the circumstances in which this visa bar applies so that it will apply
where:
1.15
The right to liberty includes the right not to be unlawfully or
arbitrarily detained.[5] The effect of this measure is that a broader class of person will be barred
from applying for visas and will therefore be subject to mandatory immigration
detention prior to removal or deportation.[6] The detention of a non-citizen pending deportation will generally not
constitute arbitrary detention, as it is permissible to detain a person for a
reasonable period of time in these circumstances. However, detention may become
arbitrary in the context of mandatory detention and the expanded visa bar,
where individual circumstances are not taken into account, and a person may be
subject to a significant length of detention.[7] There appears to be a risk in relation to the current measure that if a person
is barred from applying, for example, for a new protection visa, then they
could be subject to immigration detention for an extended period given that an
attempt to deport the person has already failed.
1.16
The statement of compatibility acknowledges that the measure engages the
right to be free from arbitrary detention but argues that the detention is
neither unlawful nor arbitrary as it is for 'a legitimate purpose'.[8] In other words, the limitation on the right to liberty is permissible as it
supports a legitimate objective, is rationally connected to that objective, and
is a proportionate way to achieve that objective. The statement of
compatibility explains the context of the measure and states that:
1.17
In relation to circumstances where a person may be subject to prolonged
immigration detention, the statement of compatibility points to departmental
policies and procedures as a relevant safeguard:
1.18
It is significant that the department has policies and procedures in
place to review detention and grant visas in appropriate circumstances so as to
minimise the risk of arbitrary detention. However, it is noted that
discretionary or administrative safeguards alone may be insufficient for the
purpose of international human rights law. This is because administrative and
discretionary safeguards are less stringent than the protection of statutory
processes and can be amended or removed at any time. Indeed, as a matter of
Australian law, there are no safeguards to protect a person from being subject
to prolonged or even indefinite detention due to an inability to deport the
person. In this respect, the United Nations Human Rights Committee (UNHRC) has
made clear that '[t]he inability of a state to carry out the expulsion of an
individual because of statelessness or other obstacles does not justify
indefinite detention'.[11]
1.19
The risk of arbitrariness may be exacerbated in circumstances where
there may be limited effective means to challenge such detention. There is a
consequential risk that the immigration detention is not reasonable, necessary
and proportionate in the individual case as required in order to be a
permissible limitation on the right to liberty.
1.20
As noted above, the detention of a non-citizen for a reasonable period
of time pending deportation is likely to pursue a legitimate objective and be
rationally connected to this objective. However, beyond stating that the
expansion of the visa bar will 'correct the unintended operation of the law
that leads to unlawful non-citizens...being treated differently'[12] it is unclear from the information provided in the statement of compatibility
why the visa bar is necessary. In this respect, it is noted that current
sections 48 and 48A themselves raise concerns in relation to human rights such
that issues of consistency do not address or overcome such underlying concerns.[13] That is, given the context of mandatory immigration detention, there is a
question as to whether the application of the visa bar is the least rights
restrictive approach.
1.22
Australia has non-refoulement obligations under the Refugee Convention
for refugees, and under both the International Covenant on Civil and Political
Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) for people who are found not to be
refugees.[14] 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.[15] Non-refoulement obligations
are absolute and may not be subject to any limitations.
1.23
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 complying with non-refoulement obligations.[16]
1.24
The effect of expanding the visa bar may be that a person is unable to
apply for a new protection visa and accordingly the person may be subject to
removal from Australia.[17] The statement of compatibility acknowledges that the obligation of
non-refoulement is absolute and may be engaged by the measure. However, it
argues that the measure will not breach Australia's non-refoulement obligations
as:
1.25
However, as stated in the committee's previous human rights assessments,
administrative and discretionary safeguards are less stringent than the
protection of statutory processes, and are insufficient in and of themselves to
satisfy the standards of 'independent, effective and impartial' review required
to comply with Australia's non-refoulement obligations.
1.26
Under section 198 of the Migration Act an immigration officer is
required to remove an unlawful non-citizen in a number of circumstances as soon
as reasonably practicable. Section 197C of the Migration Act also provides
that, for the purposes of exercising removal powers under section 198, it is
irrelevant whether Australia has non-refoulement obligations in respect of an
unlawful non-citizen. There is no statutory protection ensuring that an
unlawful non-citizen to whom Australia owes protection obligations will not be
removed from Australia, nor is there any statutory provision granting access to
independent, effective and impartial review of the decision as to whether
removal is consistent with Australia's non-refoulement obligations.[19] Accordingly, there may be a risk that a person who is unable to apply for a new
protection visa may be deported notwithstanding that Australia owes them
protection obligations. In this respect, it is also unclear from the statement
of compatibility as to whether there are circumstances in which the visa bar
will be lifted, including where new information has come to light which
supports the person's claim for protection.
1.31
Under the Convention on the Rights of the Child (CRC), state parties are
required to ensure that, in all actions concerning children, the best interests
of the child are a primary consideration.[20] The statement of compatibility acknowledges that the expansion of the visa bar
engages the rights of children as it would also apply to them.[21] The statement of compatibility, however, argues that the measure is compatible
with the obligation to consider the best interests of the child as:
1.32
However, while the department and the minister may consider the best
interests of the child as a matter of policy and discretion, the proposed
expanded visa bar will still generally apply to children. This may be the case
regardless of whether department or the minister has, in fact, substantively
considered the best interests of the child in the context of the operation of
the visa bar. Indeed, the statement of compatibility states that the best
interests of the child is to be 'balanced against other primary considerations'.
Further, it appears from the information provided that the matter may only be
referred to the minister for intervention where the best interests of the child
'overwhelmingly outweighs' all other considerations. If this were the case, it
would raise particular concerns. It is noted in this respect that the UN
Committee on the Rights of the Child has explained that:
1.33
It follows that it would be inconsistent with Australia's obligations to
treat other considerations as of equal weight to the obligation to consider the
best interests of the child. In this context, as a matter of international
human rights law, it does not appear that the importance of 'maintain[ing] the
integrity of Australia's migration system' should be given equal or greater
weight than the obligation to consider the best interests of the child. Other
than current departmental policies and the potential exercise of discretion by
the minister (which may not be sufficient for human rights purposes) the
statement of compatibility does not provide any further information as to any
procedural safeguards to ensure that the best interests of the child are given
due consideration.
1.34
As such, the expansion of the visa bar, including its impact on the
right to liberty and non-refoulement obligations, engages and may limit the
obligation to consider the best interests of the child. Limitations on human
rights may be permissible where they pursue a legitimate objective, are
rationally connected to that objective and are a proportionate means of
achieving that objective. The statement of compatibility does not expressly
address these criteria in relation to this obligation. Accordingly, without
further information it is not possible to conclude that the measure is
compatible with the obligation to consider the best interests of the child.
1.37
Prior to the framework established by the 2012 Act, the credit reporting
system limited the information that could be collected, used and disclosed by
credit providers and credit reporting bodies to 'negative information' about an
individual. 'Negative information' includes identification information (such as
a person's name and address), default history and any bankruptcy information
about that person.[26]
1.38
The 2012 Act expanded the kind of information that was permitted in the
credit reporting system. The expanded information (referred to as
'comprehensive credit information') that was able to be collected, used and
disclosed included repayment performance history of a person, the type of
credit a person has, and the maximum amount of credit available to a person.
1.39
The 2012 Act permitted credit providers to disclose this information to
credit reporting bodies on a voluntary basis.
1.41
The bill further provides that the regulations may set out the
circumstances when a credit reporting body must share with credit providers
credit information received under the mandatory comprehensive credit regime.[28]
1.42
Article 17 of the International Covenant on Civil and Political Rights
(ICCPR) prohibits arbitrary or unlawful interferences with an individual's
privacy. The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information, particularly
the collection, storing, use and sharing of such information.
1.43
The introduction of a mandatory comprehensive credit reporting scheme
engages the right to privacy by requiring large ADIs to supply comprehensive
credit information to certain credit reporting bodies. This credit information
includes significant personal and financial information about individual bank
customers, and thus the measure limits the right to privacy. The statement of
compatibility acknowledges that the right to privacy is engaged by the bill.[29]
1.44
The statement of compatibility emphasises that the mandatory
comprehensive credit regime does not, of itself, allow for the collection, use
and disclosure of an individual's credit information. This is because the
framework for such collection, use and disclosure was established by the 2012
Act. However, it is noted that, by making the scheme mandatory for large ADIs
instead of the current voluntary scheme, in practical terms the bill expands
the operation of the framework established by the 2012 Act. It is therefore
necessary to assess the human rights compatibility of the mandatory
comprehensive credit regime, which also requires considering the underlying
human rights compatibility of the 2012 Act.
1.45
Limitations on the right to privacy will be permissible where they are
prescribed by law and are not arbitrary, they pursue a legitimate objective,
are rationally connected to (that is, effective to achieve) that objective and
are a proportionate means of achieving that objective.
1.46
The statement of compatibility identifies the objective of the bill by
reference to the objective of the 2012 Act, namely, 'improving the management
of personal and credit reporting information'.[30] The statement of compatibility further states:
1.48
As to the proportionality of the measure, the statement of compatibility
notes that the bill does not alter the existing protections set out in the
Privacy Act governing the use and disclosure of credit information, and that
'the requirement to supply credit information only applies to the extent that
the disclosure is permitted under the Privacy Act'.[32] It is in this respect that the amendments to the Privacy Act introduced by the
2012 Act are particularly relevant. The statement of compatibility therefore
sets out the safeguards that were in place to protect individuals' credit
information in the 2012 Act, namely:
2.18 The
amendments [in the 2012 Act] also restricted access to repayment history
information to those credit providers who hold an Australian Credit Licence and
are therefore subject to responsible lending obligations.
2.19 Any
effect on privacy rights was considered proportionate and limited by the
introduction of specific safeguards, including:
1.49
These safeguards are important in determining the proportionality of the
measure. However, further information in the statement of compatibility would
have been of assistance to determine the sufficiency of the safeguards in light
of the amendments proposed in the bill, in particular: details regarding information
security between credit providers and credit reporting bodies, details of how
long credit information is retained, and further detail as to access to review
for persons who have complaints relating to the use of their personal
information.
1.50
Further, in order to be a proportionate limitation on the right to
privacy, the limitation needs to be sufficiently circumscribed to ensure that
it is only as extensive as is strictly necessary to achieve its objective. The
information that may be disclosed through comprehensive credit reporting is
potentially extensive, including a person's repayment history information and
credit limits. This information would appear to include positive repayment
performance history rather than merely any history of default.[34] It is not clear from the statement of compatibility whether such extensive
information is necessary for determining a consumer's credit worthiness. Given
the effect of the measure would be to make the disclosure of such information
mandatory for ADIs (such that the limitation on privacy would affect a large
number of individuals), this raises questions as to whether the limitations on
the right to privacy are sufficiently circumscribed.
1.51
It is also noted that the power to set out by regulation the
circumstances when a credit reporting body must share credit information also
appears to be very broad. Without adequate safeguards, it is possible that
leaving significant matters to be determined by regulation may result in the
regulation-making power being exercised in such a way as to be incompatible
with the right to privacy. In this respect, the statement of compatibility
states that 'these circumstances will be limited and not extend beyond those
circumstances in the Privacy Act'.[35] However, it is not clear whether the Privacy Act would constitute an effective
safeguard for the purposes of the right to privacy in the context of this
particular measure. For example, while the Privacy Act contains a range
of general safeguards it is not a complete answer to this issue because the
Privacy Act and the Australian Privacy Principles (APPs) contain a number of
exceptions to the prohibition on disclosure of personal information. This
includes permitting use or disclosure where the use or disclosure is authorised
under an Australian law, which may be broader than the scope permitted under
international human rights law.[36] Therefore, further information is required as to the operation of the specific
safeguards in the Privacy Act so as to determine whether that Act provides
effective safeguards of the right to privacy in these circumstances.
1.54
The bill contains a number of offence provisions which contain
offence-specific defences:
1.56
The right to be presumed innocent until proven guilty according to law
usually requires that the prosecution prove each element of the offence
(including fault elements and physical elements).[41]
1.57
An offence provision which requires the defendant to carry an evidential
or legal burden of proof (commonly referred to as 'a reverse burden') with
regard to the existence of some fact also engages and limits the presumption of
innocence. This is because a defendant's failure to discharge the burden of
proof may permit their conviction despite reasonable doubt as to their guilt.
Similarly, a statutory exception, defence or excuse may effectively reverse the
burden of proof, such that a defendant's failure to make out the defence may
permit their conviction despite reasonable doubt. These provisions must be
considered as part of a contextual and substantive assessment of potential
limitations on the right to be presumed innocent in the context of an offence
provision.
1.58
Reverse burden offences will not necessarily be inconsistent with the
presumption of innocence provided that they are within reasonable limits which
take into account the importance of the objective being sought and maintain the
defendant's right to a defence. In other words, such provisions must pursue a
legitimate objective, be rationally connected to that objective and be a
proportionate means of achieving that objective.
1.59
The statement of compatibility acknowledges that the offence-specific
defences (which require the defendant to carry a reverse legal burden) engage
and limit the right to be presumed innocent, but argues that this reverse
burden is permissible. The statement of compatibility explains that in each
case 'the burden is reversed because the matter is likely to be exclusively
within the knowledge of the defendant, particularly given the remote nature of
offshore operations'.[42] However, it is unclear from the information provided why the offence provision
reverses the legal rather than merely the evidential burden of proof. This
raises concerns that the reverse burden offences may not be the least rights
restrictive approach to achieving the objective of the proposed legislative
regime. Further, the statement of compatibility does not expressly explain how
the reverse burden offences pursue a legitimate objective or are rationally
connected to this objective.
1.60
The committee requests the advice of the minister as to:
- whether the measure is aimed at achieving a legitimate
objective for the purposes of human rights law;
- how the measure is effective to achieve (that is, rationally
connected to) that objective;
- whether the limitation is a reasonable and proportionate
measure to achieve the stated objective (including whether it is the least
rights restrictive approach and whether reversing the legal burden of proof
rather than the evidential burden of proof is necessary); and
- whether consideration could be given to amending the measures
to provide for a reverse evidential burden rather than a reverse legal burden.
Road Vehicle Standards Bill 2018
Purpose |
Seeks to provide a new
regulatory framework for the importation and provision of road vehicles into
Australia |
Portfolio |
Infrastructure, Regional
Development and Cities |
Introduced |
7 February 2018, House of
Representatives |
Rights |
Privacy, not to incriminate
oneself, presumption of innocence (see Appendix 2) |
Status |
Seeking additional
information |
Reverse burden offences
1.61
A number of provisions in the bill seek to introduce offences which
include offence-specific defences.[43]
Compatibility of the measures with
the right to be presumed innocent
1.62
Article 14(2) of the International Covenant on Civil and Political
Rights (ICCPR) protects the right to be presumed innocent until proven guilty
according to law. The right to be presumed innocent usually requires that the
prosecution prove each element of an offence beyond reasonable doubt.
1.63
An offence provision which requires the defendant to carry an evidential
or legal burden of proof (commonly referred to as 'a reverse burden') with
regard to the existence of some fact engages and limits the presumption of
innocence. This is because a defendant's failure to discharge the burden of
proof may permit their conviction despite reasonable doubt as to their guilt.
Similarly, a statutory exception, defence or excuse may effectively reverse the
burden of proof, such that a defendant's failure to prove the defence may
permit their conviction despite reasonable doubt. These provisions must be
considered as part of a contextual and substantive assessment of potential
limitations on the right to be presumed innocent in the context of an offence
provision.
1.64
Reverse burden offences will not necessarily be inconsistent with the
presumption of innocence provided that they are within reasonable limits, taking
into account the importance of the objective being sought, and maintain the
defendant's right to a defence. In other words, such provisions must pursue a
legitimate objective, be rationally connected to that objective and be a
proportionate means to achieve that objective.
1.65
Proposed subsections 16(3), 24(3)-(4), 32(2) and 43(2) provide offence-specific
defences or exceptions to particular proposed offences in the bill. In doing
so, the provisions reverse the evidential burden of proof as subsection 13.3(3)
of the Criminal Code provides that a defendant who wishes to rely on any
exception, exemption, excuse, qualification or justification bears an
evidential burden in relation to that matter.
1.66
The statement of compatibility does not identify that the reverse burden
offences in the bill engage and limit the presumption of innocence. However, the
explanatory memorandum includes some information about the reverse evidential
burdens including their regulatory context.[44] In this respect, the justification for reversing the burden of proof is,
generally, that the relevant evidence will be peculiarly within the knowledge
of the defendant[45] and that the defendant would be in a 'significantly better position than the
Commonwealth'[46] to be able to present this evidence. The explanatory memorandum explains in
relation to subsection 16(3) that it:
...provides a defence for entering a non-compliant vehicle onto
the RAV if the person who entered it can provide evidence that it was only
non-compliant because of an approved component that they used. This evidence
would be easily available to the defendant and it would be relatively
inexpensive for them to present this evidence.[47]
1.67
However, more generally, without additional information it is unclear
that these matters are a sufficient basis for permissibly limiting the right to
be presumed innocent.
1.68
Further, it is unclear that reversing the evidential burden is necessary
as opposed to including additional elements within the offence provisions
themselves. This raises questions as to whether the measure is the least rights
restrictive approach.
Committee comment
1.69
The committee draws to the attention of the minister its Guidance
Note 1 and Guidance Note 2 which set out information specific to
reverse burden offences.
1.70
The committee requests the advice of the minister as to:
- whether the reverse burden offences are aimed at achieving a
legitimate objective for the purposes of international human rights law;
- how the reverse burden offences are effective to achieve (that
is, rationally connected to) their objective;
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective; and
- whether it would be feasible to amend the measures so that the
relevant matters (currently in defences) are included as elements of the
offence or alternatively, to provide that despite section 13.3 of the Criminal
Code, a defendant does not bear an evidential (or legal) burden of proof in
relying on the offence-specific defences.
Coercive evidence gathering powers
1.71
Section 41 of the bill provides that the minister, secretary or a Senior
Executive Service employee may issue a disclosure notice to persons who supply
road vehicles or road vehicle components if the person giving the notice
reasonably believes that: vehicles or components of that kind will or may cause
injury; vehicles or components of that kind do not, or likely do not, comply
with applicable national standards; and the person receiving the notice is
capable of giving or producing applicable information, documents or evidence.
1.72
Section 42 sets out that a person is not excused from giving information
or evidence or producing a document on the grounds that to do so might tend to
incriminate the person or expose them to a penalty. Section 42(2) provides that
the information, evidence or documents provided in response to a disclosure
notice are not admissible in evidence against the individual in civil or
criminal proceedings subject to limited exceptions.[48] Failure or refusal to comply with a disclosure notice is an offence with a
sanction of up to 40 penalty units ($8,400) for an individual.[49]
Compatibility of the measure with
the right not to incriminate oneself
1.73
Specific guarantees of the right to a fair trial in the determination of
a criminal charge guaranteed by article 14 of the ICCPR include the right not
to incriminate oneself (article 14(3)(g)).
1.74
Section 42 of the bill engages and limits this right by requiring that a
person give information or evidence, or produce a document, notwithstanding
that to do so might tend to incriminate that person. The right not to
incriminate oneself may be subject to permissible limitations where the
limitation pursues a legitimate objective, is rationally connected to that
objective and is a proportionate way of achieving that objective.
1.75
The statement of compatibility acknowledges that the measure engages and
limits this right. In relation to the proposed disclosure notices, it argues
that it is appropriate to override the right not to incriminate oneself 'as
failure to comply could seriously undermine the effectiveness of the regulatory
scheme'.[50] The explanatory memorandum sets out further information as to why the
abrogation of the right not to incriminate oneself is needed in the particular
regulatory context:
Disclosure notices may be issued where a Minister or
inspector believes that road vehicle or approved road vehicle components pose a
danger to any person. For this reason timely gathering of information about the
extent and nature of any risks is critical. While it may be technically
feasible for the Department to obtain information by other means that do not
impinge on the right against self-incrimination, these actions may take a
longer amount of time. The first priority in recalls of road vehicles or
approved components is the rectification or remediation of the safety or
non-compliance issue. Prosecution and resulting penalties for those involved in
the supply of road vehicles or approved components is generally a secondary
consideration.
The Department may not always have specific information about
the activities of particular suppliers – the Department may receive information
about vehicle safety recalls, such as reports of faulty components in overseas
markets, which will form the basis of its market surveillance activities. The
receipt of such information may place the Department in the position where it
needs to seek information from suppliers of similar vehicles or approved
components in order to ascertain whether the same problem exists in Australia.[51]
1.76
The broad objective of gathering timely information on road vehicles or
road vehicle components that may pose a danger to the public is likely to be a
legitimate objective for the purposes of international human rights law.
Requiring that suppliers produce information or documents on such matters also
appears to be rationally connected to this objective. It is noted that it would
have been useful had this information been also included in the statement of
compatibility as well as the explanatory memorandum.
1.77
Questions arise, however, as to the proportionality of the measure. The
availability of 'use' and 'derivative use' immunities can be an important
factor in determining whether the abrogation of the privilege against
self-incrimination is proportionate. That is, they may act as a relevant
safeguard. In this case, a 'use' immunity would be available in relation to
this measure. This means that, where a person has been required to give
incriminating evidence, that evidence cannot be used against the person in any
civil or criminal proceeding, subject to exceptions, but may be used to obtain
further evidence against the person.
1.78
However, no 'derivative use' immunity is provided in the
bill. This means that information or evidence indirectly obtained as a result
of the person's incriminating evidence may be used in criminal proceedings
against the person. It is acknowledged that a 'derivative use' immunity will
not be appropriate in all cases (for example, because it would undermine the
purpose of the measure or be unworkable).
1.79
Further, it is noted that the availability or lack of
availability of a 'derivative use' immunity needs to be considered in the
regulatory context of the proposed powers. The extent of interference with the
privilege against self-incrimination that may be permissible as a matter of
international human rights law may be, for example, greater in contexts where
there are difficulties regulating specific conduct, persons subject to the
powers are not particularly vulnerable or powers are otherwise circumscribed
with respect to the scope of information which may be sought. That is, there is
a range of matters which influence whether the limitation is proportionate.
1.80
In this case, the statement of compatibility does not
substantively address why a 'derivative use' immunity would not be reasonably
available. This raises the question as to whether the measure is the least
rights restrictive way of achieving the stated objective as required in order
for the limitation to be proportionate.
Committee comment
1.81
The committee seeks the advice of the minister as to:
- whether the limitation is a reasonable and proportionate
measure to achieve the stated objective;
- whether the persons and the scope of information that may be
subject to compulsory disclosure is sufficiently circumscribed with respect to
the stated objective of the measure; and
- whether a 'derivative use' immunity is reasonably available as
a less rights restrictive alternative in section 42 to ensure information or
evidence indirectly obtained from a person compelled to answer questions or
provide information or documents cannot be used in evidence against that
person.
Compatibility of the measure with the right to privacy
1.82
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.
1.83
By requiring that a person give information or evidence or produce a
document, including in circumstances where to do so might tend to incriminate
that person, the proposed measure may also engage and limit the right to
privacy.
1.84
The statement of compatibility does not acknowledge that the proposed coercive
evidence gathering powers in section 41 may engage the right to privacy and
therefore does not provide an assessment of whether the measure engages and
limits this right.[52] It is unclear from the information provided as to the extent to which a person
may be required to disclose personal or confidential information. As noted
above, the measure appears to pursue a legitimate objective and be rationally
connected to that objective. However, questions remain as to whether the
measure is a proportionate means of achieving the objective in the context of
limitations on the right to privacy.
1.85
In particular, 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. Information and
evidence as to whether the measure is the least rights-restrictive way of
achieving the stated objective of the measure, and of any safeguards in place
to protect a person's informational privacy when providing information pursuant
to the coercive information gathering powers in the bill, would be of
assistance in determining the proportionality of the measure.
Committee comment
1.86
The committee seeks the advice of the minister as to whether any
limitation on the right to privacy is reasonable and proportionate to achieve
the stated objective including:
- what types of information may be subject to a disclosure
notice and whether this could include personal or confidential information;
- whether there are less rights restrictive ways of achieving
the objective;
- whether the persons who may be subject to compulsory
disclosure is sufficiently circumscribed with respect to the stated objective
of the measure; and
- whether there are adequate and effective safeguards in
relation to the measure.
Treasury Laws Amendment (Enhancing ASIC’s Capabilities) Bill 2018
Purpose |
Seeks to amend the Australian
Securities and Investments Commission Act 2001 to require ASIC to
consider competition in the financial system when performing its functions
and exercising its powers and to remove the requirement for ASIC staff to be
engaged under the Public Service Act 1999. Also seeks to make
consequential amendments to several Acts |
Portfolio |
Treasury |
Introduced |
House of Representatives,
28 March 2018 |
Right |
Just and favourable
conditions of work (see Appendix 2) |
Status |
Seeking additional
information |
Removal of requirement for ASIC staff to be engaged under the Public
Service Act
1.87
The bill seeks to amend the Australian Securities and Investments
Commission Act 2001 (ASIC Act) to provide that the chairperson of ASIC may
employ such employees as the chairperson considers necessary for ASIC and may
determine the terms and conditions of employment, including remuneration.[53] The chairperson would also determine in writing the ASIC Code of Conduct and
the ASIC Values which apply to ASIC members and staff members.[54]
1.88
The effect of these amendments would be to remove the requirement for
ASIC staff to be engaged under the Public Service Act 1999 (PS Act), and
consequently remove the requirement that ASIC staff members employed under the
PS Act be subject to the Australian Public Service (APS) Code of Conduct and
APS Values.
Compatibility of the measures with the
right to just and favourable conditions of work
1.89
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).
1.90
The right to just and favourable conditions of work includes 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.
1.91
The PS Act contains a range of provisions in relation to the
terms and conditions of employment of public servants. By removing the
requirement that ASIC employ staff under the PS Act and providing that the ASIC
chairperson may engage staff directly and set the terms and conditions of
employment, the measures engage and may limit the right to just and favourable
conditions of work.
1.92
This right may be permissibly limited where the limitation pursues a
legitimate objective, is rationally connected to that objective and is a
proportionate means of achieving that objective. The statement of compatibility
does not acknowledge that any rights are engaged or limited by the measures and
therefore does not provide an analysis against these criteria.
1.93
The explanatory memorandum states that the proposed amendments will
'support ASIC to more effectively recruit and retain staff in positions
requiring specialist skills'.[55] This may be capable of being a legitimate objective for the purposes of
international human rights law. However, limited information is provided in the
explanatory materials to the bill as to how this objective addresses a pressing
and substantial concern, as is required in order to constitute a legitimate
objective for the purposes of international human rights law.
1.94
It is unclear from the explanatory materials, for example, how the PS
Act operates as a barrier to the recruitment and retention of appropriate
staff. The explanatory memorandum states that the amendments implement a
recommendation made by the government commissioned report, Fit for the
Future: A Capability Review of ASIC, published in December 2015. The report
recommended that the government 'remove ASIC from the [PS Act] as a matter of
priority, to support more effective recruitment and retention strategies'.[56] While not discussed in the explanatory materials for the bill, the report noted
several ways in which the PS Act 'negatively impacts' ASIC, including that it
impedes ASIC's ability to attract and retain staff who may pursue better
remuneration elsewhere, including at peer regulators such as the Australian
Prudential Regulation Authority; and that it slows down the ability for
internal promotions, particularly at senior levels.[57] In accordance with Guidance Note 1, the committee's expectation is that
information such as this would be included in the statement of compatibility as
part of an assessment of whether the measures address a pressing and
substantial concern for the purposes of international human rights law.
1.95
There are also questions about the proportionality of the measures and,
in particular, whether the measures are the least rights restrictive approach.
It is unclear, for example, why barriers to recruitment and retention of staff
could not be addressed through the negotiation of entitlements through the
usual enterprise process or the current provisions for Individual Flexibility
Arrangements (IFAs).[58] Further, the ASIC Act currently allows for the chairperson to employ persons
outside the PS Act, under terms and conditions such as the chairperson
determines.[59] Questions arise as to whether arrangements such as these may be pursued as less
rights restrictive alternatives to the removal of the requirement that ASIC
staff be engaged under the PS Act.
1.96
At present, APS employees are generally employed under relevant
enterprise agreements which set out terms and conditions of employment. Section
311 of the bill provides that ASIC staff who are APS employees immediately
prior to the date the proposed measures take effect will continue to be employed
from this date of commencement on the same terms, conditions and with the same
accrued entitlements under a written agreement under the ASIC Act.[60] This would appear to indicate that no ASIC staff member currently engaged under
the PS Act will be worse off when the measures in the bill take effect.
However, given the potential breadth of powers of the ASIC chairperson to
employ and set out terms and conditions for ASIC staff, it is not clear from
the information provided what safeguards are in place to ensure ASIC employees
whose work conditions are governed currently under the PS Act are not worse off
in future. Having regard to the breadth of the chairperson's powers and the
obligation on state parties under ICESCR not to unjustifiably take any
backwards steps (retrogressive measures) that might affect the right to just
and favourable conditions of work,[61] concerns arise as to whether the measure as proposed contains adequate
safeguards to protect just and favourable conditions of work.
Committee comment
1.97
The preceding analysis raises questions as to whether the measure
is compatible with the right to just and favourable conditions of work.
1.98
The committee therefore seeks the advice of the Minister for
Revenue and Financial Services 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 whether less rights
restrictive measures may be reasonably available and the sufficiency of any
relevant safeguards; and
- whether the measure is compatible with Australia's obligations
not to take any backwards steps (retrogressive measures) in relation to the
right to just and favourable conditions of work.
Treasury Laws Amendment
(2018 Measures No. 4) Bill 2018
Purpose |
Range of amendments
concerning compliance with the Superannuation Guarantee |
Portfolio |
Treasury |
Introduced |
House of Representatives,
28 March 2018 |
Rights |
Presumption of innocence (see Appendix 2) |
Status |
Seeking additional
information |
Strict liability and absolute liability offences
1.99
Schedule 1 of the bill seeks to amend the Taxation Administration Act
1953 (TAA) to introduce a strict liability offence for employers who fail
to comply with a direction from the Commissioner to pay a superannuation
guarantee charge.[62] A person will not commit an offence if they took all reasonable steps
within the required period to both comply with the direction and to ensure that
the original liability was discharged before the direction was given.[63]
1.100
Schedule 1 also would allow the Commissioner to direct an employer to
attend an approved education course where that employer has failed to comply
with their superannuation guarantee obligations. Failure to comply with the
education direction would be an absolute liability offence.[64]
1.101
Schedule 5 of the bill seeks to amend the TAA to introduce a strict
liability offence for failing to provide security where ordered to do so by the
Federal Court.[65] A person will not commit an offence to the extent that they are not capable of
complying with the order.[66]
Compatibility of the measure with
the presumption of innocence
1.102
Article 14(2) of the International Covenant on Civil and Political
Rights (ICCPR) provides that everyone charged with a criminal offence has the
right to be presumed innocent until proven guilty. Generally, consistency with
the presumption of innocence requires the prosecution to prove each element of
a criminal offence beyond reasonable doubt. The effect of applying strict
liability to an element of an offence means that no fault element needs to be
proven by the prosecution, although the defence of mistake of fact is available
to the defendant. Applying absolute liability to an element of an offence also
means that no fault element needs to be proved by the prosecution, however the
defence of mistake of fact is not available to the defendant. The strict
liability and absolute liability offences engage the presumption of innocence
because they allow for the imposition of criminal liability without the need to
prove fault.
1.103
Strict liability and absolute liability offences will not necessarily be
inconsistent with the presumption of innocence provided that they are within
reasonable limits, taking into account the importance of the objective being
sought, and maintain the defendant's right to a defence. In other words, such
offences must pursue a legitimate objective and be rationally connected and
proportionate to that objective.
1.104
While the statement of compatibility provides a general description of
the nature and effect of each of the proposed offences,[67] it does not acknowledge that the presumption of innocence is engaged or limited
by the strict liability and absolute liability offences in Schedule 1 and
Schedule 5. Instead, the statement of compatibility states that both Schedule 1
and Schedule 5 do not engage any applicable rights or freedoms.[68]
1.105
It is noted that the explanatory memorandum to the bill also provides
some information as to the rationale for and effect of the strict liability and
absolute liability offences.[69] However, the information provided in the explanatory memorandum is not
sufficient as it does not provide an assessment of whether the limitation on
the presumption of innocence is permissible. As set out in the committee's Guidance
Note 1, the committee's expectation is that statements of compatibility
read as stand-alone documents, as the committee relies on the statement as the
primary document that sets out the legislation proponent's analysis of the
compatibility of the bill with Australia's international human rights
obligations.
Committee comment
1.106
The strict liability and absolute liability offences introduced
by Schedules 1 and 5 of the bill engage and limit the presumption of
innocence.
1.107
The committee refers to its Guidance Note 1 and seeks
further information from the minister as to:
- whether the strict liability and absolute liability offences
introduced by the bill pursue a legitimate objective for the purposes of
international human rights law;
- whether the offences are rationally connected to (that is,
effective to achieve) that objective; and
- whether the limitation on the presumption of innocence introduced
by the strict liability and absolute liability offences is proportionate to
that objective.
Underwater Cultural Heritage Bill 2018
Purpose |
Introduces a series of
measures to provide for the protection and conservation of Australia's
underwater cultural heritage |
Portfolio |
Environment and Energy |
Introduced |
House of Representatives,
28 March 2018 |
Rights |
Fair Trial; criminal
process rights (see Appendix 2) |
Status |
Seeking additional
information |
Civil penalties for breaches of protected underwater cultural heritage
regime
1.108
The bill seeks to introduce a number of civil penalties for breaches of
the proposed new regime for the protection and conservation of Australia's
underwater cultural heritage. Some of these penalties are substantial,
including penalties of up to 300 penalty units (currently, $63,500) for
engaging in prohibited conduct within a protected zone without a permit,[70] possessing protected underwater cultural heritage without a permit,[71] and exporting underwater cultural heritage without a permit.[72] There is also a civil penalty of up to 800 penalty units (currently, $168,000)
for engaging in conduct with an adverse impact on protected underwater cultural
heritage without a permit[73] There are corresponding criminal offences and strict liability offences,
punishable by either imprisonment or civil penalties, which are discussed
further below.
Compatibility of the measure with
criminal process rights
1.109
Under Australian law, civil penalty provisions are dealt with in
accordance with the rules and procedures that apply in relation to civil
matters (for example, the burden of proof is on the balance of probabilities).
However, if the new civil penalty provisions are regarded as 'criminal' for the
purposes of international human rights law, they will engage the criminal
process rights under articles 14 and 15 of the International Covenant on Civil
and Political Rights (ICCPR). The statement of compatibility acknowledges that the
civil penalty provisions may engage criminal process rights if they are
considered 'criminal' for the purposes of international human rights law.
1.110
As noted in the statement of compatibility, the committee's Guidance
Note 2 (see Appendix 4) sets out the relevant steps for determining whether
civil penalty provisions may be considered 'criminal' for the purpose of
international human rights law:
- first, the domestic classification of the penalty as civil or
criminal (although the classification of a penalty as 'civil' is not
determinative as the term 'criminal' has an autonomous meaning in human rights
law);
- second, the nature and purpose of the penalty: a civil penalty is
more likely to be considered 'criminal' in nature if it applies to the public
in general rather than a specific regulatory or disciplinary context, and where there is an intention to punish or deter, irrespective of the severity of
the penalty; and
- third, the severity of the penalty.
1.111
Here, the second and third steps of the test are particularly relevant
as the penalties are classified as 'civil' under domestic law meaning they will
not automatically be considered 'criminal' for the purposes of international
human rights law. Under step two, the statement of compatibility indicates that
the civil penalties are directed at a particular regulatory context, namely the
regulation of underwater cultural heritage. Further, the statement of
compatibility notes that the purpose of the penalties is to deter the
'deliberate destruction, looting or illegal salvage of protected underwater
cultural heritage that is a national, non-renewable and unique historical
asset'.[74] While the purpose of deterrence is often an indication that a penalty may be
'criminal' in nature, the narrow application of the penalties would indicate
the penalty is unlikely to be considered 'criminal' under the second part of
the test.
1.112
Even if step two of the test is not established, a penalty may still be
'criminal' for the purposes of international human rights law under step three where
the penalty is a substantial pecuniary sanction. In determining whether a civil
penalty is sufficiently severe to amount to a 'criminal' penalty under step
three, the nature of the industry or sector being regulated and the relative
size of the penalties in that regulatory context is relevant. It is noted that
the conduct regulated by the bill that gives rise to the relevant civil
penalties (such as damage and destruction to sites of underwater cultural
heritage) may be substantial and irreversible, and that the penalties have been
drafted having regard to those potential consequences. However, the civil
penalties that may be imposed are substantial (300 penalty units for breaches
of sections 29(6), 31(6) and 35(5) and 800 penalty units for breaching section
30(6). This raises concerns as to whether the overall severity of the penalty
would mean that the penalties may be classified as 'criminal' for the purposes
of international human rights law. Further information as to the relative size
of the pecuniary penalties in the particular context that is being regulated
would be of assistance in determining the human rights compatibility of the
legislation.
1.113
If the civil penalties were assessed to be 'criminal' for the purposes
of human rights law, this does not mean that the relevant conduct must be
turned into a criminal offence in domestic law nor does it mean that the civil
penalty is illegitimate. Instead, it means that the civil penalty provisions in
question must be shown to be consistent with the criminal process guarantees
set out in articles 14 and 15 of the ICCPR, including the right not to be tried
twice for the same offence (Article 14(7)) and the right to be presumed
innocent until proven guilty according to law (Article 14(2)).[75]
1.114
The statement of compatibility usefully explains that the civil penalty
provisions are compatible with Article 14(7), as while there are corresponding
criminal offences attaching to the same conduct, a person cannot be subject to
the civil penalty provision if they have been convicted of the criminal offence
(for which there are different pecuniary penalties applicable, and potential
imprisonment), and any proceedings for a civil penalty provision are
automatically stayed if criminal proceedings are commenced.[76] This would ensure that a person could not be punished twice for the same
conduct, consistent with Article 14(7).
1.115
However, the presumption of innocence in Article 14(2) requires that the
case against a person be demonstrated on the criminal standard of proof, that
is, it must be proven beyond reasonable doubt. By contrast, the standard of
proof applicable in the civil penalty proceedings introduced by the bill is the
civil standard of proof, requiring proof on the balance of probabilities.
Therefore, if the penalties were classified as 'criminal' for the purposes of
international human rights law, it would be necessary to explain how the
application of the civil standard of proof for such proceedings is compatible
with Article 14(2) of the ICCPR. This would include an analysis of whether the
limitation on the presumption of innocence pursues a legitimate objective, is
rationally connected to this objective, and is proportionate to that objective.
Committee comment
1.116
The committee seeks the advice of the minister as to whether the
civil penalty provisions in proposed sections 29(6), 30(6), 31(6), and 35(5) of
the bill may be considered 'criminal' in nature for the purposes of
international human rights law, addressing in particular whether the
severity of the civil penalties that may be imposed on individuals is such that
the penalties may be considered 'criminal' (including information as to the
nature of the sector being regulated and the relative size of the pecuniary
penalties in that regulatory context).
1.117
The committee also seeks the advice of the minister as to whether,
assuming the penalties are considered 'criminal' for the purposes of
international human rights law, the application of the civil standard of proof to
the civil penalty provisions in sections 29(6), 30(6), 31(6), and 35(5) is
compatible with the presumption of innocence in Article 14(2) of the ICCPR.
This includes advice as to whether the limitation on the presumption of
innocence pursues a legitimate objective, is rationally connected to this
objective, and is proportionate to that objective, and whether the civil
penalty provisions could be amended to apply the criminal standard of proof.
Strict liability offences
1.118
The bill also seeks to introduce a number of strict liability offences
for breaches of the underwater cultural heritage protection regime, which are
punishable by a pecuniary penalty of 60 penalty units.[77]
Compatibility of the measure with
the presumption of innocence
1.119
As noted earlier, article 14(2) of the ICCPR provides that everyone
charged with a criminal offence has the right to be presumed innocent until
proven guilty. Generally, consistency with the presumption of innocence
requires the prosecution to prove each element of a criminal offence beyond
reasonable doubt. The effect of applying strict liability to an element of an
offence is that no fault element needs to be proven by the prosecution (although
the defence of mistake of fact is available to the defendant).
1.120
Strict liability offences engage the presumption of innocence because
they allow for the imposition of criminal liability without the need to prove
fault. The statement of compatibility acknowledges the strict liability
offences engage and limit the presumption of innocence, but states that:
Application of strict
liability has been set with consideration given to the guidelines regarding the
circumstances in which strict liability is appropriate set out in A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.
The penalties for the strict liability offences in the Bill do not include
imprisonment, and do not exceed 60 penalty units for an individual.[78]
1.121
However, further information is required in order to determine whether
the limitation on the presumption of innocence is permissible. In this respect,
strict liability offences will not necessarily be inconsistent with the
presumption of innocence provided that they are within reasonable limits, taking
into account the importance of the objective being sought, and maintain the
defendant's right to a defence. In other words, limits on the presumption of
innocence must be reasonable, necessary and proportionate to the objective
being sought.
Committee comment
1.122
The committee seeks the advice of the minister as to the compatibility
of the strict liability offences with the presumption of innocence, in
particular:
- whether the strict liability offences are aimed at achieving a
legitimate objective for the purposes of international human rights law;
- how the strict liability offences are effective to achieve (that
is, rationally connected to) that objective; and
- whether the limitation on the presumption of innocence is
proportionate to the legitimate objective of the measure.
Further response required
1.123
The committee seeks a further response from the relevant minister or
legislation proponent with respect to the following bills and instruments.
Crimes Amendment (National Disability Insurance
Scheme – Worker Screening) Bill 2018
Purpose |
Seeks to amend the Crimes
Act 1914 to create exceptions to provisions that would prevent the
disclosure of spent, quashed and pardoned convictions for persons who work or
seek to work with people with disability in the NDIS |
Portfolio |
Social Services |
Introduced |
House of Representatives, 15
February 2018 |
Rights |
Privacy; work; equality and
non-discrimination (see Appendix 2) |
Previous report |
3 of 2018 |
Status |
Seeking further additional
information |
Background
1.124
The committee first reported on the bill in its Report 3 of 2018,
and requested a response from the Minister for Social Services by 11 April 2018.[79]
1.125
The minister's response to the committee's inquiries was received on
19 April 2018. The response is discussed below and is reproduced in full at Appendix 3.
Permitting disclosure of spent, quashed and pardoned convictions in certain
circumstances
1.126
The measures in 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.
Compatibility of the measure with
the right to privacy and the right to work
1.127
The initial human rights analysis stated that the measures engage the
right to privacy and the right to work.[80] The right to privacy is engaged and limited 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. The
measure may also engage and limit the right to work insofar as individuals may
be excluded from employment with the NDIS on the basis of their criminal
record.
1.128
The statement of compatibility acknowledged 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.[81]
1.129
The initial analysis stated that the stated objective of the bill,
namely to protect people with a disability from experiencing harm arising from
unsafe support or services under the NDIS, was likely to be a legitimate
objective for the purposes of international human rights law. Insofar as including
information regarding spent, quashed and pardoned convictions may enable worker
screening units to accurately assess a person's suitability as a disability
support worker, the initial analysis also stated that the measure appears to be
rationally connected to this objective.
1.130
However, the initial analysis also noted that questions arose as to
whether the measures in the bill constituted a proportionate limitation on the
right to privacy and right to work. In relation to the proportionality of the
measure, the statement of compatibility states:
The Bill provides access to a
worker's detailed criminal history information to state-based worker screening
units to enable a thorough risk-based worker screening assessment proportionate
to determining the potential risk of harm to people with a disability receiving
services under the NDIS. Further, the permission to access such information
will be obtained from a worker applying for a worker screening access check as
a part of the application process.[82]
1.131
While it was acknowledged that there may be circumstances where it would
be appropriate to permit disclosure, or taking into account of, a person's
criminal history to properly assess whether a person poses an unacceptable risk
of harm, the initial analysis noted that questions arose as to whether the
breadth of the measure in this bill is greater than necessary to achieve the
stated objectives. This is because 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. This
also raised questions as to whether there would 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.
1.132
Additionally, based on the information provided, it was 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.
1.133
The initial analysis also noted that it was unclear whether there are
sufficient safeguards to ensure that the measure is a proportionate limitation
on human rights. In this respect, the statement of compatibility recognises
that ‘it is critical that NDIS worker screening does not unreasonably exclude
offenders from working in the disability sector’.[83] The statement of compatibility further states:
The State and Territory-operated
worker screening units will be required to have appropriately skilled staff to
assess risks to people with disability, to comply with the principles of
natural justice, and to comply with a nationally consistent risk assessment and
decision-making framework, including considerations of the circumstances
surrounding any offence. The Bill provides the means to gain the necessary
information to assess such circumstances.
In this way, the Bill...supports a
proportionate approach to safeguards that does not unduly prevent a person from
choosing to work in the NDIS market, but ensures the risk of harm to people
with disability is minimised, by excluding workers whose behavioural history
indicates they pose a risk from certain services and supports.[84]
1.134
It was acknowledged in the initial analysis that 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. 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.
1.135
Accordingly, the committee requested the advice of the minister as to
whether the measures were proportionate to achieving the stated objectives of
the bill (including whether the measures are the least rights restrictive way
of achieving the objective and the existence of any safeguards).
Minister's response
1.136
The minister's response explains the importance of taking into account a
person's entire criminal record when undertaking the NDIS worker screening,
noting that it is important 'to ensure that the state and territory worker
screening units tasked with making an informed assessment of an individual's
suitability to work with people with disability can access and consider a
complete picture of that person's criminal history'. In this respect, the
minister explains the particular vulnerabilities of disabled persons that
necessitate a more extensive criminal history check of potential NDIS workers:
People with disability are some of the most vulnerable within
the Australian community. It is not only sexual or violent offences that the
worker screening regime seeks to mitigate against. Individuals employed within
the NDIS are in a position of trust and in many cases will have access to the
person with disability's personal belongings, finances and medication. Minor
offences may be relevant to a person's integrity and general trustworthiness.
On that basis, it is appropriate to have awareness of the circumstances [...]
surrounding even minor offences.
1.137
The minister's response further explains why a less rights restrictive
approach, such as limiting the types of offences that could be disclosed, was
not reasonably available:
Limiting the categories of offences that can be disclosed to
worker screening units would create a risk that relevant information is not
available to inform a decision by a worker screening unit and could undermine
the value of an NDIS worker screening outcome as a source of information for
people with disability and for employers. Inaccurate risk assessments may also
be unfair to workers themselves.
...
While, as the Committee points out, a person whose conviction
is quashed may be factually and legally innocent, there are a range of reasons
that a conviction may be quashed or pardoned that might not be so black and
white. This will not be known until the specific circumstances surrounding the
pardoned or quashed conviction are considered by the worker screening unit,
which is why they need access to such information as proposed in the Bill.
1.138
It is acknowledged that undertaking an accurate risk assessment is
important and, as noted in the initial analysis, a detailed criminal history
check of individuals would assist in ascertaining whether a person poses a
risk. However, it is noted that international human rights jurisprudence has
raised concerns that indiscriminate and open-ended disclosure of criminal
record data may be incompatible with human rights where there are not adequate
safeguards in place.[85] In this respect, the minister's response sets out the safeguards that would be
in place in order to ensure that the assessment of risk is undertaken in a
proportionate manner:
Safeguards will be in place through a nationally consistent,
risk-based approach that will provide state and territory worker screening
units with a framework for considering a person's criminal history and patterns
of behaviour over a lifetime that would indicate potential future risk to
people with disability...
State and territory worker screening units will be required
to undertake a rigorous process to determine the relevance of a particular
event to whether an applicant for an NDIS Worker Screening Check poses a risk
to people with disability. In particular, worker screening units are required
to consider:
- the nature, gravity and
circumstances of the event and how it [...] contributes to a pattern of behaviour
that may be relevant to disability-related work;
- the length of time that has passed
since the event occurred;
- the vulnerability of the victim at
the time of the event and the person's relationship to the victim or position
of authority over the victim at the time of the event;
-
the person's criminal, misconduct
and disciplinary, or other relevant history, including whether there is a
pattern of concerning behaviour;
-
the person's conduct since the
event; and
- all other relevant circumstances
in respect of their offending, misconduct or other relevant history, including
attitudes towards offence or misconduct, and the impact on their eligibility to
be engaged in disability-related work.
1.139
The minister further emphasises that a person's criminal history 'forms
only one part of the analysis and risk assessment undertaken by a state or
territory worker screening unit' and that a conviction for a minor offence,
spent or quashed conviction would not necessarily prohibit that person from
gaining employment with a provider within the NDIS.
1.140
These safeguards are important in determining whether the limitation on
the right to privacy and right to work is proportionate. Notwithstanding the
fact that the exception to the Crimes Act introduced by the bill creates a
broad power to disclose, the safeguards in the worker screening process described
in the further information provided by the minister appear to be capable of ensuring
that persons with spent, pardoned or quashed criminal convictions that bear no
relevance to their suitability as an NDIS worker would not be unduly prevented
from being employed by the NDIS.
1.141
However, it is not clear from the information provided by the minister
whether the safeguards outlined are matters of departmental policy or matters
to be set out in legislation or in delegated legislation in the future.
Departmental policies and procedures are less compelling than legislation, as policies
can be removed, revoked or amended at any time, and are not subject to the same
levels of scrutiny or accountability as when the policies are enshrined in
legislation.
1.142
The bill additionally provides that, before regulations can prescribe
the persons to whom the criminal convictions may be disclosed, the minister
must be satisfied, relevantly, that the person or body complies with applicable
laws relating to privacy, human rights and records management, complies with
principles of natural justice, and has risk assessment frameworks and
appropriately skilled staff to assess risks to the safety of a person with a
disability.[86] However, further information from the minister would assist in determining
whether the safeguards set out in the minister's response are sufficient for
the purposes of international human rights law, including whether the
safeguards will be prescribed by legislation or legislative instrument.
1.143
Another relevant factor in determining whether safeguards are sufficient
includes whether there is a possibility of monitoring and access to review.[87] It is noted, for example, that Working with Children Check decisions are able
to be reviewed by applicants through state and territory administrative appeals
tribunals.[88] Further information from the minister as to whether (and, if so, by what
mechanism) a decision relating to a person's suitability for employment
following worker screening will be able to be reviewed would therefore be of
assistance to determine whether the limitation on the right to privacy and
right to work is proportionate.
Committee response
1.144
The committee thanks the minister for his response.
1.145
The committee seeks further information from the minister as to
the proposed safeguards in relation to the criminal history checks undertaken
as part of the proposed NDIS Worker Screening Check, including:
- whether the risk assessment framework outlined in the
minister's response will be set out in legislation or a legislative instrument;
and
- whether a decision relating to a person's suitability for
employment following worker screening is able to be reviewed.
Compatibility of the measure with the right to equality and
non-discrimination
1.146
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.
1.147
'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).[89] 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.[90]
1.148
The United Nations Human Rights Committee has not considered whether
having a criminal record is a relevant personal attribute for the purposes of
the prohibition on discrimination. 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.[91] While this jurisprudence is not
binding on Australia, the case law from the Court is useful in considering
Australia's obligations under similar provisions in the International Covenant
on Civil and Political Rights (ICCPR).[92] 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.
1.149
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.[93]
1.150
The statement of compatibility did not recognise that the right to
equality and non-discrimination is engaged by the measure, and so did not
provide a substantive assessment of whether the measure constitutes a
permissible limitation on that right. Accordingly, the committee requested the
advice of the minister as to the compatibility of the measure with this right.
Minister's response
1.151
In relation to whether the differential treatment is rationally
connected and proportionate to the legitimate objective of the measure, the
minister's response explains:
The more comprehensive data collected as part of the NDIS
Worker Screening Check reflects that there is a higher degree of risk an
individual may pose to person[s] with disability in the course of delivering
supports and services. Differential treatment of individuals as a result of
considering criminal history as a part of a risk-based worker screening would
not constitute unlawful discrimination as there is sufficient research and
objective evidence that supports the consideration of this information as a
basis for determining risk.
A complete criminal history, leads to a more accurate and
reliable risk-based worker screening assessment which benefits both people with
disability and the worker being screened. A comprehensive assessment is likely
to be fairer to workers and reduce the chance of unjustified discrimination.
It should be noted that employers do not get access to any
criminal history information under the proposed approach to NDIS Worker
Screening. Employers will only have access to worker screening outcomes, once
the approved Worker Screening Unit has made a determination.
Finally, I note that Working with Children Checks already
operate in all jurisdictions with access to, and assessment of, full criminal
history. People with disability deserve the same level of protection.
1.152
From the information provided, it appears that the differential
treatment is based on reasonable and objective criteria. However, for the same
reasons discussed above in relation to the right to privacy and right to work,
further information relating to the adequacy of the safeguards is required in
order for the committee to complete its analysis as to whether the measure is
compatible with the right to equality and non-discrimination.
Committee response
1.153
The committee thanks the minister for his response.
1.154
The committee seeks further information from the minister as to
the proposed safeguards in relation to the criminal history checks undertaken
as part of the proposed NDIS Worker Screening Check, including:
- whether the risk assessment framework outlined in the
minister's response will be set out in legislation or legislative instrument;
and
- whether a decision relating to a person's suitability for
employment following worker screening is able to be reviewed.
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) |
Previous report |
3 of 2018 |
Status |
Seeking further additional
information |
Background
1.155 The committee first reported on the bill in its Report 3 of 2018,
and requested a response from the Minister for Defence by 11 April 2018.[94]
1.156 The bill passed both Houses of Parliament on 28 March 2018 and received
Royal Assent on 11 April 2018.
1.157 The minister's response to the committee's inquiries was received on
20 April 2018. The response is discussed below and is reproduced in full at Appendix 3.
Communicating AUSTRAC information to foreign intelligence agencies
1.158
Proposed section 133BA 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[95] to a foreign intelligence agency if satisfied of certain matters and may
authorise an ASD official to communicate such information on their behalf. The
matters in respect of which the Director-General is to be satisfied before
communicating AUSTRAC information are:
- the foreign intelligence agency has given appropriate
undertakings for:
- protecting the
confidentiality of the information; and
- controlling the use that
will be made of it; and
- ensuring that the
information will be used only for the purpose for which it is communicated to
the foreign country; and
- it is appropriate, in all the circumstances of the case,
to do so.[96]
Compatibility of the measure with
the right to privacy
1.159
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. The initial human rights analysis
stated that, 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.
1.160
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 bill did not acknowledge this limitation on the right
to privacy and therefore did not provide information on these matters.
Accordingly, the committee requested 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).
Minister's response
1.161
In response to the committee's inquires, the minister's response provides
some general information as to the purpose of the amendment and existing
safeguards, but the response does not expressly address whether the limitation
on the right to privacy is permissible. The minister's response states that the
amendment 'is critical to ASD's work to combat terrorism, online espionage,
transnational crime, cybercrime and cyber-enabled crime', and further states:
As an independent statutory agency, this amendment now ensures
that information is able to be appropriately shared, consistent with how other
Australian domestic intelligence and security agencies manage this type of
information. This work across the intelligence and security community is
central to defending Australia and its national interests.
1.162
As noted in the initial human rights analysis, the right to privacy may
be subject to permissible limitations and thus the purpose of the measure is
relevant in determining whether the limitation on these rights is permissible.[97] The purposes of combating terrorism, online espionage, transnational crime,
cybercrime and cyber-related crime is likely to be a legitimate objective for
the purpose of international human rights law, and the information sharing for
this purpose appears to be rationally connected to this objective.
1.163
Relevant to the proportionality of the measure, the minister's response
provides the following general information about safeguards:
As the committee would be aware, the Australian Transaction
Reports and Analysis Centre (AUSTRAC) has made successive statements and
provided advice to the parliament in relation to the Anti-Money Laundering
and Counter-Terrorism Financing Act 2006, including specifically regarding
the sharing of information with foreign partners, and provided assurances that
while the Act does engage a range of human rights, to the extent that it limits
some rights, those limitations are reasonable, necessary and proportionate in
achieving a legitimate objective.
...
This amendment to the Act does not extend or alter the
current arrangement ASD receives by being part of the Department of Defence.
Similarly, it is consistent with arrangements provided for all other
intelligence and security agencies that require this function. This amendment is
not, in effect, creating a new arrangement for ASD. These provisions reflect
longstanding arrangements for agencies in the intelligence and security
community, and there are strong safeguards in place to ensure the function is
appropriately exercised.
In this context, there already exists strong compliance
safeguards and ASD is subject to some of the most rigorous oversight
arrangements in the country. This includes being subject [to] the oversight of
the Inspector-General of Intelligence and Security, who has the powers of a
standing royal commission and can compel officers to give evidence and hand
over materials. The Inspector-General regularly reviews activities to ensure
ASD's rules to protect the privacy of Australians are appropriately applied.
1.164
While the minister's response indicates that AUSTRAC has previously
reported to parliament on the human rights compatibility of the Anti-Money Laundering
and Counter-Terrorism Financing Act 2006, that does not address the
committee's specific inquiries in relation to the implications of the measures
in this bill and their compatibility with the right to privacy.
1.165
It is acknowledged that the amendment is not creating a new arrangement
for ASD, and that the amendments reflect current arrangements for agencies in
the intelligence and security community. However, scrutiny committees
consistently note that the fact that provisions replicate existing arrangements
does not, of itself, address the committee's human rights concerns. Further
information is therefore required from the minister as to what safeguards are
in place to ensure the function is appropriately exercised. This includes
information as to what constitutes an "appropriate undertaking" for
the purpose of section 133BA of the bill (described at [1.158] above),
including what is considered appropriate protection of confidential information
by the foreign intelligence agency (section 133BA(1)(a)(i)). It is unclear from
the information provided that the measure is a proportionate limitation on the
right to privacy.
Committee response
1.166
The committee thanks the minister for her response.
1.167
The committee seeks further information from the minister as to
the compatibility of the measure with the right to privacy including:
- information as to the existing safeguards to protect the right
to privacy (such as the Privacy Act 1988);
- the scope of information that may be subject to information
sharing;
- what constitutes an "appropriate undertaking" in
relation to the protection of confidential information by the foreign
intelligence agency for the purposes of section 133BA(1)(a)(i) of the bill; and
- any other relevant safeguards that ensure the sharing of
information between the ASD and foreign intelligence agencies is compatible
with the right to privacy.
Compatibility of the measure with
the right to life and the prohibition on torture, cruel, inhuman, or degrading
treatment or punishment
1.168
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.
1.169
The United Nations (UN) Human Rights Committee has made clear that international
law 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'.[98]
1.170
The initial analysis stated that 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.
1.171
In relation to the right to life, the committee sought the advice of the
minister about the compatibility of the measure with this right (including the
existence of relevant safeguards).
1.172
A related issue 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.[99] This issue was also not addressed in the statement of compatibility.
1.173
In relation to the prohibition on torture, or cruel, inhuman or degrading
treatment or punishment, the committee sought the advice of the minister in
relation to the compatibility of the measure with this right (including any
relevant safeguards).
Minister's response
1.174
The minister's response did not substantively respond to the committee's
inquiries as to the compatibility of the measures with the right to life and
the prohibition on torture or cruel, inhuman, degrading treatment or punishment.
In order to be compatible with these rights, information sharing powers must be
accompanied by adequate and effective safeguards.
1.175
However, in this respect, the minister's response provides no
information as to whether there is a prohibition on sharing information with
foreign intelligence agencies where that information could lead to torture or
cruel, inhuman, degrading treatment or punishment. Similarly, no information
has been provided as to whether there is a prohibition on sharing information
which could result in the prosecution of a person for an offence involving the
death penalty. It is unclear whether or not there are any legal or policy
requirements that mandate the consideration of such matters prior to the
disclosure of information to a foreign intelligence organisation. By contrast,
the Minister for Justice has previously provided the committee copies of the
Australian Federal Police (AFP) National Guideline on international
police-to-police assistance in death penalty situations and the AFP National
Guideline on offshore situations involving potential torture or cruel, inhuman
or degrading treatment or punishment. This allowed the committee to assess
whether information sharing powers were compatible with human rights in the
context of these guidelines.[100]
1.176
In relation to the minister's response in this instance, the fact that
such information sharing powers are pre-existing and that there has been
reporting to parliament does not address such human rights concerns. Indeed, as
the prohibition on torture is absolute and cannot be subject to limitations,
the minister's reference in the response to previous assessments of
proportionality does not assist. While proportionality is relevant to an
assessment of the compatibility of the measure with the right to life, in the
context of the information sharing powers it is essential that there are
effective safeguards in place. In relation to whether there are adequate
safeguards in place, information as to what constitutes an "appropriate
undertaking" for the purpose of section 133BA of the bill (described at [1.158]
above) is relevant. This includes advice as to what is considered appropriate
protection of confidential information by the foreign intelligence agency
(section 133BA(1)(a)(i)), and whether it would include an undertaking that
information shared with the foreign intelligence agencies would not result in
persons being subject to the death penalty, torture or ill-treatment. Any further
information, such as any policies about information sharing from the
Director-General to a foreign intelligence agency, and what matters are taken
into account when considering such communications, would also be of assistance.
1.177
In relation to the information provided by the minister relating to
oversight of the ASD by the Inspector-General of Intelligence and Security,
this information may be relevant to determining compatibility of the measure
with human rights. In particular, the right to life and the prohibition against
torture or cruel, inhuman or degrading treatment or punishment require an
official and effective investigation to be undertaken when there are credible
allegations against public officials concerning violations of these rights.
However, further information is required as to the extent to which this
oversight mechanism takes account of whether the ASD's rules are compatible
with Australia's international human rights obligations.
Committee response
1.178
The committee thanks the minister for her response.
1.179
The committee seeks further information from the minister as to
the compatibility of the measure with the right to life and the prohibition on
torture or cruel, inhuman and degrading treatment or punishment.
1.180
In relation to the right to life, specific information as to any
safeguards in place to protect the right to life, including information as to:
- whether there is a prohibition on sharing information where
that information may be used in investigations that may result in the
imposition of the death penalty;
- whether there are any guidelines about information sharing in
death penalty situations and whether the committee could be provided with a
copy of any such guidelines; and
- whether the requirement that the Director-General receive
"appropriate undertakings" from the foreign intelligence agency in
order to share information pursuant to section 133BA(1) includes undertakings
in relation to this matter and, if so, what constitutes an "appropriate
undertaking". If such matters are set out in departmental policies or
guidelines, a copy of those guidelines would be of assistance.
1.181
In relation to the prohibition on torture, or cruel, inhuman or
degrading treatment or punishment, specific information as to any safeguards in
place to ensure compatibility with this right, including information as to:
- whether there is a prohibition on sharing information where
that information may result in a person being subject to torture, or cruel, inhuman
or degrading treatment or punishment;
- whether there are any guidelines about information sharing in
situations involving potential torture or cruel, inhuman or degrading treatment
or punishment and whether the committee could be provided with a copy of any
such guidelines; and
- whether the requirement that the Director-General receive
"appropriate undertakings" from the foreign intelligence agency in
order to share information pursuant to section 133BA(1) includes undertakings
in relation to this matter and, if so, what constitutes an "appropriate
undertaking".
1.182
In relation to each of these rights:
- whether the oversight of the ASD by the Inspector-General of
Intelligence and Security, referred to in the minister's response, includes
oversight of whether the ASD's rules are compatible with Australia's
international human rights obligations; and
- any other relevant safeguards that ensure the sharing of
information between the ASD and foreign intelligence agencies is compatible
with the right to life and the prohibition on torture, cruel, inhuman and
degrading treatment or punishment.
Operation outside the Public Service Act
1.183
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.[101] Further, the Director-General may, at any time, by written notice, terminate
the employment of such a person.[102]
Compatibility of the measure with
just and favourable conditions at work
1.184
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).[103]
1.185
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.[104]
1.186
The PS Act contains a range of provisions in relation to the
terms and conditions of employment of public servants. As noted in the initial
analysis, 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.
1.187
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'.[105] While the statement of compatibility points to some information as to why this
objective may address a pressing and substantial concern, the initial analysis
stated that further information would have been useful. It was unclear, for
example, how the PS Act operates as a barrier to the recruitment and retention
of appropriate staff. It was also unclear why this could not be addressed
through the negotiation of entitlements through the usual enterprise agreement
process.
1.188
Further, there was no specific information provided as to how the
measure is rationally connected to (that is, effective to achieve) this stated
objective.
1.189
Additionally, the initial analysis stated that 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.
1.190
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 was 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 was unclear whether they are sufficient given the potential
breadth of the Director-General's powers.
1.191
The committee therefore sought the advice of the minister as to the
compatibility of the measure with the right to just and favourable conditions
of work.
Minister's response
1.192
The minister's response provides useful information as to the purpose of
removing the ASD from the framework of the PS Act. In particular, the
minister's response states that the amendment 'pursues the legitimate objective
of providing ASD with greater flexibility to recruit, retain, train, develop
and remunerate its specialist staff, in accordance with the recommendations of
the 2017 Independent Intelligence Review'. As to whether this measure addresses
a pressing and substantial concern and is effective to achieve the objective,
the minister's response states:
This will provide ASD with greater flexibility to recognise
the skills of its specialised workforce. This structure reflects the need to
retain those individuals with highly sought after skills, such as those with
science, technology, engineering and maths qualifications. Mobility across the
public sector is also recognised as an important tool to bring in critical
talent into ASD, but to also enable the further development of skills in different
environments. To support this, the amendments made to the Intelligence Services
Act include the specific provision that will allow for the transfer of
employment from ASD to the Australian Public Service. As part of these
arrangements, the prior service and accrued leave balances of staff within the
Australian Public Service and ASD will continue to be recognised and ASD staff
will continue to be able to access public sector superannuation schemes.
[...]
Operating outside the Australian Public Service also provides
the flexibility to design over time new employment categories and career
pathways that are in addition to the standard public service structures. This
will enable ASD to more directly market itself to the types of trades and
skills it needs to attract, and highlight the skill development and career
progression that can occur within these streams of work in the agency.
It is recognised that ASD operates within a highly
competitive employment market, even within the Australian security and intelligence
community. There are several other agencies that also offer rewarding careers
to people with many of the skills and attributes ASD seeks to engage. Overall,
in recognition of the environment ASD seeks to recruit from, the amendments to
the Intelligence Services Act effectively give the same flexibility to the
Director-General of ASD for the recruitment and retention, and establishing
workplace agreements, as the Australian Security Intelligence Organisation and
the Australian Secret Intelligence Service.
1.193
Based on the information provided, it is likely that the measure pursues
a legitimate objective for the purposes of international human rights law and
that the measure is rationally connected to this objective.
1.194
In relation to the proportionality of the measure, the minister provides
the following information as to why a less rights restrictive approach (such as
staying within the framework of the PS Act) is not appropriate:
As recognised by the Review, for ASD the option of continuing
to operate within the Public Service Act employment framework, even with
exemptions, is not the most effective way forward to ensure ASD can continue to
deliver the outcomes required. It would increase the risk of further losing the
critical skills needed to successfully perform this task and not address the
need to improve ASD's position in the employment market to attract the highest
quality candidates.
1.195
Further, the minister provides information as to the safeguards that are
in place to protect just and favourable conditions of work. This includes new
subsection 38F to the Intelligence Services Act 2001, which requires the
Director-General of ASD to adopt the principles of the PS Act in relation to
employees of ASD to the extent to which the Director-General considers they are
consistent with the effective performance of the functions of ASD. The minister
also points to the safeguards for workers under the Fair Work Act 2009,
which the amendments introduced by the bill do not extinguish. The minister
also provides the following information as to the oversight of the
Inspector-General of Intelligence and Security of employment-related grievances
in the ASD:
In addition to the continuation of the protections afforded
to staff by the Fair Work Act, the Inspector-General of Intelligence and
Security (IGIS) provides additional safeguards not normally afforded to workers
outside of the intelligence community. Through the amendments made to the
Intelligence Services Act the IGIS will be given powers to investigate
complaints regarding employment-related grievances from ASD employees.
Previously the IGIS was not able to investigate these complaints, and ASD
employees sought redress through the Public Service Commissioner or the Merit
Protection Commissioner. From 1 July 2018, ASD employees can bring their
grievances to the IGIS in the same way as for employees of the Australian
Security Intelligence Organisation and the Australian Secret Intelligence
Service.
1.196
Based on the information provided by the minister, there appear to be
sufficient safeguards in place to conclude that, on balance, it is likely that
the measure would be a proportionate limitation on the right to just and
favourable conditions of work.
Committee response
1.197
The committee thanks the minister for her response and has
concluded its examination of this issue.
1.198
Based on the further information provided by the minister, the
committee considers that the measure is likely to be compatible with the right
to just and favourable conditions at work.
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) |
Rights |
Equality and
non-discrimination (see Appendix 2) |
Previous report |
3 of 2018 |
Status |
Seeking further additional
information |
Background
1.199
The committee first reported on the instrument in its Report 3 of
2018, and requested a response from the Minister for Home Affairs by 11
April 2018.[106]
1.200
The minister's response to the committee's inquiries was received on
30 April 2018. The response is discussed below and is reproduced in full at Appendix 3.
Requirement for certain persons to complete additional English language
exams to register as a migration agent
1.201
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.
1.202
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
1.203
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.
1.204
'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).[107] 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).[108]
1.205
The initial human rights analysis stated that 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.
1.206
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.[109]
1.207
The statement of compatibility states that the instrument does not
engage any of the applicable rights or freedoms,[110] and so does not provide an assessment of whether the right to equality and non-discrimination
is engaged by the measure.
1.208
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.[111]
1.209
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'.[112] The initial analysis stated that 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.[113]
1.210
Notwithstanding the legitimate objectives of the measure, it was unclear
whether the measure is effective to achieve (that is, rationally connected to)
and proportionate to that objective. In this respect, it was 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.
1.211
However, the initial analysis noted that the IELTS and the TOEFL iBT may
exceed those requirements necessary to enter tertiary study.[114] It was 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 raised 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.
1.212
Similarly, it was 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 was unclear that this
would necessarily ensure the person's proficiency in English at the required
level.
1.213
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.[115]
1.214
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.[116] This raised 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.
1.215
Accordingly, the committee requested 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).
Minister's response
1.216
In relation to the right to equality and non-discrimination engaged by
the instrument and discussed in the previous analysis, the minister provides
the following general information:
Guided by the 2014 Kendall Review, the Government is
committed to protecting vulnerable visa applicants by ensuring that new and
re-registering migration agents be required to prove that they have English
language proficiency. The amendments made to the English language tests in IMMI
18/003: Specified courses and exams for registration as a migration agent
instrument were a correction to the previous instrument IMMI 12/097
Prescribed courses and exams for applicants for registration as a Migration
Agent (Regulation 5). The Test of English as a Foreign Language (TOEFL)
scores set out in the previous instrument 12/097 (with the exception of the
writing subtest) were incorrect and did not align with the benchmarked
International English Language Testing System (IELTS-TOEFL) equivalent scores.
With IMMI 12/097 being repealed and replaced to reflect the
new educational requirements for migration agents, it was an opportune time to
revise the TOEFL scores. The TOEFL scores in IMMI 18/003 align with the
benchmarks for all departmentally accepted English language tests.
The broad application of these accepted English language
proficiency levels for registered migration agents (which aligns with
benchmarks required for certain visa applicants) is non-discriminatory. The
measures are also reasonable and proportionate to ensure the quality and
standards of advice to protect clients of migration agents.
1.217
As set out in the committee's initial report, it is acknowledged that
the measure appears to pursue a legitimate objective for the purposes of
international human rights law. However, as set out in detail above at [1.203]-[1.214]
there are questions as to whether the measure as formulated is rationally
connected and proportionate to that objective. In this respect while the
minister's response merely states that the measure is non-discriminatory, no
further information is provided in support of this statement. The information
provided by the minister otherwise does not substantively engage with the
committee's inquiries and does not provide sufficient information for the
committee to consider whether the instrument is compatible with human rights.
1.218
The Human Rights (Parliamentary Scrutiny) Act 2011 requires a
statement of compatibility to include an assessment of whether the
legislative instrument is compatible with human rights,[117] and this has not occurred in relation to the statement of compatibility
accompanying the instrument that is the subject of this analysis. As noted in
the Committee's Guidance Note 1, the committee considers that statements
of compatibility are essential to the examination of human rights in the
legislative process, should identify the rights engaged by the instrument, and
should provide a detailed and evidence-based assessment of the measures against
the limitation criteria where applicable. In the absence of such information in
the statement of compatibility, the committee may seek additional information
from the proponent of the instrument and it is the committee's usual
expectation that the minister's response would substantively address the
committee's inquiries. In other words, the committee requires a more detailed
assessment of the human rights engaged by the instruments beyond the minister's
statement that the measure is non-discriminatory.
Committee response
1.219
The committee thanks the minister for his response.
1.220
The committee notes that the minister's response does not
substantively address the committee's inquiries in relation to the
compatibility of the instrument with the right to equality and
non-discrimination.
1.221
The committee therefore restates its request for the advice of
the minister in relation to the compatibility of the measure with the right to
equality and non-discrimination, including:
- 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).
Various Instruments made under the Autonomous Sanctions Act 2011[118]
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) |
Previous report |
3 of 2018 |
Status |
Seeking further additional
information |
Background
1.222
The committee first reported on the instruments in its Report 3 of
2018, and requested a response from the Minister for Foreign Affairs by 11
April 2018.[119]
1.223
The minister's response to the committee's inquiries was received on
27 April 2018. The response is discussed below and is reproduced in full at Appendix 3.
1.224
The instruments on which the committee sought the minister's advice were
a number of new instruments under the Autonomous Sanctions Act 2011 (the
Act).[120] This Act, in conjunction with the Autonomous Sanctions Regulations 2011 (the
2011 regulations) and various instruments made under those 2011 regulations,
provide the power for the government to impose broad sanctions to facilitate
the conduct of Australia's external affairs (the autonomous sanctions regime).
1.225
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.[121] 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.[122] 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.[123]
'Freezing' of designated person's assets and prohibitions on travel
1.226
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.[124] The 2011 regulations set out the countries and activities for which a person or
entity can be designated or declared.[125] 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.
1.227
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.[126] 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.
1.228
The autonomous sanctions regime provides that the minister may grant a
permit authorising the making available of certain assets to a designated
person.[127] An application for a permit can only be made for basic expenses, to satisfy a
legal judgment or where a payment is contractually required.[128] A basic expense includes foodstuffs; rent or mortgage; medicines or medical
treatment; public utility charges; insurance; taxes; legal fees and reasonable
professional fees.[129]
Compatibility of the designations
and declarations with multiple human rights
1.229
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).
1.230
The initial human rights analysis 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.
1.231
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.
1.232
Further analysis of the rights engaged by the current instruments is set
out below.
1.233
The committee further noted that the analysis is undertaken 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).[130] 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
1.234
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.
1.235
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
1.236
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.[131]
Right to protection of the family
1.237
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.[132] 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
1.238
The right to an adequate standard of living is guaranteed by article 11
of the 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.[133]
Right to freedom of movement
1.239
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.[134] As noted in the initial analysis, 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
1.240
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.
1.241
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.[135] 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.
1.242
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,[136]
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.[137] 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.
1.243
However, as previously noted by the committee, 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 was 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.[138]
1.244
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.[139]
1.245
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.[140]
1.246
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 the designation or declaration may no longer be required.[141] 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 raised questions as to whether the continued application of sanctions
against those persons because of their status as (former) ICTY indictees is
proportionate.
1.247
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.[142] 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.[143]
1.248
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.[144] 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.[145]
1.249
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.[146]
1.250
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.[147]
1.251
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.[148] The previous human rights analysis noted that this lack of clarity raised
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.[149]
1.252
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.[150] 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, the initial human
rights analysis stated that there are concerns that the current Australian
model of autonomous sanctions regimes may be incompatible with the right to a
fair hearing.
1.253
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;[151]
- quarterly reports must be made by the executive on the operation
of the regime;[152]
- an Independent Reviewer of Terrorism Legislation reviews each
designation and has unrestricted access to relevant documents, government
personnel, the police and intelligence agencies;[153]
- 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;[154]
- 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);[155] 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.[156]
1.254
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
1.255
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.[157] Non-refoulement obligations are absolute and may not be subject to any
limitations.
1.256
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.
1.257
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.[158] It was not clear whether this provision would apply to visa holders who have
been found to engage Australia's non-refoulement obligations.
1.258
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.[159]
1.259
This therefore raised 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.
Initial information sought from the
minister
1.260
In light of the human rights issues raised by the various sanctions
instruments, the committee sought the advice of the minister as to the
compatibility of the sanctions instruments with these rights.
1.261
In particular, the committee sought 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.
1.262
The committee also sought 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
sought 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 [1.234] to [1.254] above.
1.263
The committee also drew 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.
1.264
The committee also sought 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.[160]
Designations or declarations in relation to specified countries
1.265
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
1.266
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.
1.267
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.[161] 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.
1.268
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.
1.269
The committee therefore sought
the advice of the minister as to the compatibility of the measures with the
right to equality and non-discrimination.
Minister's response
Compatibility of the measure with
the prohibition on non-refoulement and the right to an effective remedy
1.270
In relation to the compatibility of the measures with the obligation of non-refoulement,
the minister's response states:
Under the Autonomous Sanctions Regulations 2011, I may
declare a person who meets the criteria specified in regulation 6 for the
purpose of preventing the person from travelling to, entering or remaining in
Australia. A 'declared person' holding an Australian visa may therefore have
their visa cancelled by the Minister for Home Affairs under the Migration
Regulations 1994, regulation 2.43.
However, under regulation 2.43(1)(aa) of the Migration
Regulations 1994, the Minister for Home Affairs cannot cancel a visa that
is classified as a 'relevant visa'. Regulation 2.43(3) of the Migration
Regulations 1994 provides that a 'relevant visa' includes, among others, a
protection, refugee, or humanitarian visa. I note that under the Autonomous
Sanctions Regulations 2011, I may also waive the operation of a declaration
that was made for the purpose of preventing the person from travelling to,
entering or remaining in Australia, on the grounds that it would be in the
national interest, or on humanitarian grounds. This decision is subject to
natural justice requirements, and may be judicially reviewed.
I also note the Committee's comments in relation to section
197C of the Migration Act 1958. As outlined in the Explanatory
Memorandum to this section at the time of its introduction, Australia will
continue to meet its non-refoulement obligations through mechanisms other than
the removal powers in section 198 of the Migration Act 1958, including
through the protection visa application process, and through the use of the
Minister's personal powers in the Migration Act 1958. These mechanisms
ensure that non-refoulement obligations are addressed before a person becomes
ready for removal under section 198.
1.271
The minister's response helpfully provides information as to the
operation of the Migration Regulations in relation to persons who are declared
under section 6(1)(b) or 2(b) of the 2011 regulations. In particular, the
minister's response clarifies that persons on protection, refugee or
humanitarian visas could not have their visa cancelled under section
2.43(1)(aa) of the Migration Regulations.[162] This indicates that, in practical terms, there is less risk of persons to whom
Australia owes protection obligations having their visa cancelled as a
consequence of the minister's exercise of power to declare persons under the
2011 regulations. However, the classes of 'relevant visas' that cannot be
cancelled under section 2.43(1)(aa) do not include all types of visas that are
granted to persons to whom Australia owes protection obligations. For example,
Safe Haven Enterprise visas (subclass 790), which apply to persons who arrived
in Australia illegally, engage Australia's protection obligations and intend to
work and/or study in regional Australia,[163] are not included within the definition of 'relevant visa' in section 2.43(3).
Similarly, there may be persons on other types of visas for whom deportation to
their country of origin upon cancellation of their visa would mean the person
faces a real risk that they would face persecution, torture or other serious
forms of harm.
1.272
For persons who may have their visa cancelled under section 2.43 of the
Migration Regulations, the response identifies the minister's power to waive
the operation of the declaration and the use of the immigration minister's
personal powers in the Migration Act 1958 as a form of safeguard. The
minister also points to the human rights compatibility assessment in the
explanatory memorandum to the bill which introduced section 197C of the
Migration Act.[164] However, it is noted that the mechanisms referred to are entirely at the
discretion of the relevant minister. While the minister identifies that
decisions by the minister to waive the operation of a declaration may be
judicially reviewed, effective and impartial review by a court or tribunal of
decisions, including merits review in the Australian context, is
integral in giving effect to non-refoulement obligations.[165]
1.273
Further, the committee has previously concluded that section 197C of the
Migration Act is incompatible with Australia's non-refoulement obligations, and
specifically noted the deficiency of mere administrative (rather than
statutory) safeguards:
This statement suggests that visa processes and the
minister's discretionary and non-compellable powers to grant a visa are
sufficient to enable Australia to comply with its non-refoulement obligations.
However, the committee considers that, while the form of administrative arrangements
is a matter for the Australian government to determine, non-reviewable,
discretionary and non-compellable powers in relation to visa protection claims
do not meet the requirement of independent, effective and impartial review of non-refoulement
decisions, and are in breach of Australia’s non-refoulement obligations under
the ICCPR and the CAT.[166]
1.274
Therefore, while the risk of persons to whom Australia owes protection
obligations being returned contrary to the prohibition on non-refoulement is
low, to the extent that there is a risk, the administrative safeguards
identified by the minister are not sufficient safeguards to enable Australia to
comply with its non-refoulement obligations. This is because these arrangements
do not meet the requirements of independent, effective and impartial review of
non-refoulement decisions.
Committee response
1.275
The committee thanks the minister for her response and has
concluded its examination of this issue.
1.276
The committee notes the information from the minister that
persons on 'relevant visas' (including protection, refugee or humanitarian
visas) cannot have their visa cancelled under section 2.43(1)(aa) of the
Migration Regulations following the exercise of the minister's power to declare
persons under the 2011 regulations.
1.277
To the extent that there remains a risk that persons to whom
Australia owes protection obligations who are not on 'relevant visas' may have
their visa cancelled if they are declared persons under the 2011 regulations,
the committee reiterates its previous view that the safeguards to prevent
non-refoulement of persons to whom Australia owes protection obligations
are incompatible with Australia's obligations under the ICCPR and CAT because
they do not meet the requirements of independent, effective and impartial
review of non-refoulement decisions.
Compatibility of the measure with
multiple rights
1.278
In relation to the remaining human rights engaged by the instruments and
discussed in the previous analysis, the minister does not substantively address
the committee's inquiries but instead provides the following general
information:
The Government is committed to ensuring the human rights
compatibility of Australia's sanctions regime. I have previously addressed in
some detail the issues raised in the Report in my responses to the Committee in
2015 and 2016. Without repeating the detail of those responses, it remains the
Government's view that sanctions measures are proportionate and appropriate in
targeting those responsible for repressing human rights and democratic freedoms
or to end regionally or internationally destabilising actions.
Modern sanctions regimes impose highly targeted measures
designed to limit the adverse consequences of a situation of international
concern, to seek to influence those responsible for it to modify their
behaviour, and to penalise those responsible. Australia does not impose
sanction measures on individuals lightly.
I continue to be satisfied that Australia's implementation of
autonomous sanctions is proportionate to the objectives of each regime. I note
that the Department of Foreign Affairs and Trade (DFAT) keeps the operation of
Australia's sanction regimes under regular review.
1.279
While the minister has referred to previous responses provided to the
committee in 2015 and 2016, those responses related to different sanctions
instruments. The Human Rights (Parliamentary Scrutiny) Act 2011 requires
a statement of compatibility to include an assessment of whether the
legislative instrument is compatible with human rights,[167] and this has not occurred in relation to the statements of compatibility
accompanying the various instruments that are the subject of this analysis. As
noted in the Committee's Guidance Note 1, the committee considers that
statements of compatibility are essential to the examination of human rights in
the legislative process, and should identify the rights engaged by the
legislation, and should provide a detailed and evidence-based assessment of the
measures against the limitation criteria where applicable. In the absence of
such information in the statement of compatibility, the committee may seek
additional information from the proponent of the instrument and it is the
committee's usual expectation that the minister's response would substantively
address the committee's inquiries. In other words, the committee requires a
more detailed assessment of the human rights engaged by the instruments beyond
the minister's statement of satisfaction with human rights compatibility.
1.280
Finally, in relation to the statements of compatibility for the
instruments, the minister's response states:
I note the Committee's concerns that the statement of
compatibility with human rights (SCHR) in the Instruments does not engage in
any substantive analysis of the rights and freedoms that are engaged and
limited by the Instruments.
As I have indicated above, I consider that the Instruments
and the broader sanctions framework is proportionate and compatible with human
rights. I have asked DFAT to consider whether additional detail can be included
in future statements.
Committee response
1.281
The committee thanks the minister for her response.
1.282
The committee notes that the minister's response does not
substantively address the committee's inquiries in relation to the
compatibility of the instruments with multiple rights.
1.283
The committee refers to its analysis above and seeks the further
advice of the minister as to the compatibility of the designations and
declarations of persons under the 2011 regulations 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 restates its request for the advice of the minister
as to how the designation and declaration of persons pursuant to the autonomous
sanctions regime is a proportionate limitation on these rights, having regard
to the matters set out at [1.234] to [1.254] above.
1.284
The committee reiterates the analysis above 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. The committee therefore restates its request for the advice of the
minister as to the compatibility of these measures with the right to equality
and non-discrimination.
1.285
The committee draws the minister's attention to the committee's
recommendations in Report 9 of 2016 and seeks the minister's advice as
to whether consideration could 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.
1.286
The committee notes the minister has requested the Department of
Foreign Affairs and Trade to include additional detail in future statements of
compatibility, and draws the minister and department's attention to the
committee's Guidance Note 1.
Advice only
1.287
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.
Australian Human Rights Commission Repeal (Duplication Removal) Bill 2018
Purpose |
Seeks to repeal the Australian
Human Rights Commission Act 1986 |
Legislation Proponent |
Senator Cory Bernardi |
Introduced |
Senate, 15 February 2018 |
Rights |
Effective Remedy (see Appendix
2) |
Status |
Advice only |
Repeal of the Australian Human Rights Commission Act 1986
1.288
The bill seeks to repeal the whole of the Australian Human Rights
Commission Act 1986 (the AHRC Act).
1.289
The AHRC Act establishes the Australian Human Rights Commission (the
AHRC) and gives the AHRC functions in relation to several international human
rights treaties and instruments. The AHRC Act also regulates the processes
for making and resolving complaints under four federal anti-discrimination
acts: the Racial Discrimination Act 1975, the Sex Discrimination Act
1984, the Disability Discrimination Act 1992 and the Age
Discrimination Act 2004.
1.290
As stated in the statement of compatibility, the effect of the bill
would be to abolish the AHRC and to repeal the mechanisms by which the AHRC Act
provides redress for unlawful discrimination.[168]
Compatibility of the measure with
the right to an effective remedy
1.291
Article 2 of the International Covenant on Civil and Political Rights
(ICCPR) requires state parties to ensure access to an effective remedy for
violations of human rights.[169] Relevantly, the right to an effective remedy requires state parties to
establish appropriate judicial and administrative mechanisms for addressing
claims of human rights violations under domestic law. The United Nations Human
Rights Committee has noted the particular importance of national human rights
institutions in giving effect to state parties' obligations to ensure access to
effective remedies, in particular the role such institutions play in
investigating allegations of human rights violations.[170]
1.292
By repealing the AHRC Act, and consequently the mechanisms through which
victims of human rights violations may seek redress, the bill engages the right
to an effective remedy. The statement of compatibility does not acknowledge
that this right may be engaged by the bill. Rather, the statement of
compatibility states that the bill touches on a 'number of human rights topics'
but 'leaves untouched commonwealth legislation relating to human rights'
(namely, the four federal anti-discrimination acts as well as elements of the Fair
Work Act 2009).[171]
1.293
The statement of compatibility states that the purpose of the bill is to
'end commonwealth duplication of human rights advocacy performed by
state-equivalent commissions' and that repealing the AHRC Act would 'encourage
aggrieved plaintiffs to use relevant State and Territory anti-discrimination
legislation'.[172] The statement of compatibility further states:
The functionality of the Commission can be replicated if a
government so wishes by other means. The offences under those Commonwealth Acts
could be prosecuted by the Commonwealth. Alternatively, the government could
propose consequential amendments to provide for applications by aggrieved
plaintiffs to be lodged directly in the Federal Court. It is also observed that
the bill does not touch the significant number of bodies at state levels tasked
with upholding specific human rights...[173]
1.294
While there is overlap between the federal anti-discrimination laws and
the state and territory discrimination laws, the schemes are not identical, and
different matters and protected attributes are covered to differing degrees
between the jurisdictions.[174] For example, Part IIA of the Racial Discrimination Act provides federal
protection against racial vilification, and complaints of racial vilification
are investigated and conciliated by the AHRC.[175] However, as the committee has previously noted, while all other states and
territories have some form of anti-vilification laws, the Northern Territory
(NT) presently does not and therefore any complaints of racial vilification in
the NT must be brought under the Racial Discrimination Act to the AHRC.[176]
State and territory jurisdictions would also not necessarily cover
discriminatory conduct by the Commonwealth or Commonwealth officers.[177]
1.295
Further, in addition to the mechanisms under the four federal
anti-discrimination acts, the AHRC Act also gives the AHRC specific functions
in relation to equal opportunity in employment in order to give effect to
Australia's obligations under the International Labour Organisation Convention
(No 111) concerning Discrimination in respect of Employment and Occupation (ILO
111).[178] The AHRC Act defines 'discrimination' in that context as including distinction
on the basis of religion, political opinion, or social origin that has the
effect of nullifying or impairing equality of opportunity or treatment in
employment or occupation.[179] These protected attributes of political opinion, religion or social origin are
not covered in some state jurisdictions.[180] The repeal of the AHRC Act would therefore raise concerns that there would not
be appropriate judicial and administrative mechanisms for addressing human
rights violations, contrary to the right to an effective remedy.
1.296
In relation to the ability of the Commonwealth to prosecute offences
under the federal discrimination laws, it is noted that unlawful discrimination
is generally a civil matter in Australian law and there are only a small number
of offences in federal discrimination laws[181] and in the AHRC Act.[182] This raises concerns that relying on the criminal offence provisions under the
federal discrimination laws would not provide a sufficiently effective
mechanism for investigating and redressing human rights violations that would
be compatible with the right to an effective remedy.
Committee comment
1.297
The committee draws the human rights implications of the bill in
respect of the right to an effective remedy to the attention of the legislation
proponent and the Parliament.
1.298
If the bill proceeds to further stages of debate, the committee
may request information from the legislation proponent with respect to the
compatibility of the bill with human rights.
Criminal Code (Foreign Incursions and Recruitment—Declared Areas)
Declaration 2018—Mosul District, Ninewa Province, Iraq [F2018L00176]
Purpose |
Makes it an offence under
section 119.2 of the Criminal Code Act 1995 (the Criminal Code) to
enter, or remain in, Mosul District, Ninewa Province, Iraq |
Portfolio |
Foreign Affairs and Trade |
Authorising legislation |
Criminal Code Act 1995 |
Last day to disallow |
15 sitting days after
tabling (tabled House of Representatives 26 March 2018, Senate 19 March 2018) |
Rights |
Fair trial; presumption of
innocence; prohibition against arbitrary detention; freedom of movement;
equality and non-discrimination (see Appendix 2) |
Status |
Advice only |
Background
1.299
Section 119.2 of the Criminal Code makes it an offence for a person to
intentionally enter, or remain in, a declared area in a foreign country where
the person is reckless as to whether the area is a declared area. Under section
119.3 of the Criminal Code, the Minister for Foreign Affairs (the minister) may
declare an area in a foreign country for the purposes of section 119.2 if the
minister is satisfied that a listed terrorist organisation is engaging in a
hostile activity in that area.
1.300
The committee previously considered these provisions as part of its
assessment of the Counter-Terrorism Legislation Amendment (Foreign Fighters)
Bill 2014 (the bill) in its Fourteenth Report of the 44th Parliament.[183] The bill passed both Houses of Parliament and received Royal Assent on 2
November 2014.
1.301
The committee considered that the declared area offence provisions
introduced by the bill were likely to be incompatible with the right to a fair
trial and the presumption of innocence, the prohibition against arbitrary
detention, the right to freedom of movement and the right to equality and
non-discrimination.
1.302
Subsequent to the committee's analysis of the bill, the bill was amended
to remove the ability of the minister to declare whole countries or
neighbouring countries as declared areas (see section 119.3(2A) of the Criminal
Code).
1.303
The committee has also previously considered specific declarations of an
area in a foreign country for the purposes of section 119.2 of the Criminal
Code.[184]
Declaration of Mosul District as a declared area
1.304
As a result of the Declaration, it is a criminal offence under section
119.2 of the Criminal Code for a person to enter, or remain in the Mosul
District.
1.305
In order to prove the offence the prosecution is only required to prove
that a person intentionally entered into (or remained in) the Mosul District
and was reckless as to whether or not it had been declared by the minister. The
prosecution is not required to prove that the person had any intention to
undertake a terrorist or other criminal act. A person accused of entering or
remaining in Mosul District province bears an evidential burden—that is, to
establish a defence they must provide evidence that they were in the declared
area solely for a legitimate purpose as defined by the Criminal Code.
Compatibility of the measure with multiple human rights
1.306
As stated above, the committee has previously concluded that the
declared area offence provisions of the Criminal Code are likely to be
incompatible with:
- the right to a fair trial and the presumption of innocence;
-
the prohibition against arbitrary detention;
- the right to freedom of movement; and
- the right to equality and non-discrimination.
1.307
In light of the committee's previous conclusion that the declared area
offence provisions in the Criminal Code are incompatible with human rights, it
follows that the declaration of Mosul District, Ninewa Province, Iraq for the
purposes of the declared area offence provision is also likely to be
incompatible with human rights. This analysis is consistent with the committee's
previous analysis and conclusions about earlier declarations made for the
purposes of section 119.2.
1.308
The statement of compatibility for the Declaration argues that the 'Declaration
is compatible with these human rights because it is a lawful, necessary and
proportionate response to protect Australia’s national security'.[185] It
is acknowledged that the protection of national security from identified risks
may be capable of constituting a legitimate objective for the purposes of
international human rights law.
1.309
In this respect, the statement of compatibility provides a general explanation
for the measure and states that:
...The Islamic State (also known as the Islamic State of Iraq
and the Levant or ISIL) is a listed terrorist organisation under the Criminal
Code. ISIL’s activities, including in the district of Mosul, and calls by
ISIL’s leadership, have attracted thousands of foreign fighters, including
Australians, who have travelled to Iraq to join ISIL and engage in hostile
activity...
The declaration promotes the safety of Australians, including
those who might be seeking to travel to Mosul district, Ninewa province, Iraq
and those who may be at risk of harm posed by persons returning from Mosul
district, Ninewa province, Iraq.[186]
1.310
However, the statement of compatibility does not provide more specific
analysis of the specific threat to Australia's national security or how any
such threat is addressed by declaring the district of Mosul. Further, the
statement does not explain why it is not possible to rely on measures that are
less restrictive of human rights, such as the existing provisions of the
Criminal Code which prohibit engaging in hostile activities in foreign
countries. The statement of compatibility does not acknowledge or address human
rights concerns raised in the committee's previous reports.
Committee comment
1.311
Noting the concerns raised in the previous human rights
assessment of the declared area offence and the above analysis, the committee
draws the human rights implications of the Declaration to the attention of
parliament.
National Consumer Credit Protection Amendment (Small Amount Credit Contract
and Consumer Lease Reforms) Bill 2018
Purpose |
This bill seeks to amend
the National Consumer Credit Protection Act 2009 and the National
Credit Code in relation to small amount credit contracts and consumer leases |
Legislation proponent |
Mr Tim Hammond MP |
Introduced |
House of Representatives,
26 February 2018 |
Rights |
Fair trial; criminal
process rights; presumption of innocence (see Appendix 2) |
Status |
Advice only |
Civil penalty provisions
1.312
The bill seeks to introduce a series of civil penalty provisions for
failure to comply with the provisions governing small amount credit contracts
(SACCs)[187] and consumer leases.[188] In relation to SACCs, civil penalties of 2,000 penalty units (currently,
$420,000) may be imposed in circumstances including: where a licensee[189] fails to record assessments of a consumer's suitability for a SACC,[190] makes certain representations in relation to SACCs but without providing
prescribed information,[191] makes unsolicited SACC invitations,[192] or enters into a SACC with a consumer where the repayments under the contract
are not equal or would not meet prescribed requirements.[193] Civil penalties of 2,000 penalty units are also imposed in relation to similar
conduct relating to consumer leases,[194] the prohibited use of account statements,[195] avoidance schemes relating to SACCs and consumer leases,[196] charging prohibited monthly fees,[197] exceeding caps on fees and charges for consumer leases,[198] and canvassing of consumer leases at home.[199]
Compatibility of the measure with
criminal process rights
1.313
Under Australian law, civil penalty provisions are dealt with in
accordance with the rules and procedures that apply in relation to civil
matters (for example, the burden of proof is on the balance of probabilities).
However, if the new civil penalty provisions are regarded as 'criminal' for the
purposes of international human rights law, they will engage the criminal
process rights under articles 14 and 15 of the International Covenant on Civil
and Political Rights (ICCPR). The statement of compatibility does not
acknowledge that the civil penalty provisions may engage the criminal process
rights in the ICCPR.
1.314
The committee's Guidance Note 2 (see Appendix 4) sets out the
three relevant steps for determining whether civil penalty provisions may be
considered 'criminal' for the purpose of international human rights law. In
this bill, the penalties are classified as 'civil' under domestic law meaning
they will not automatically be considered 'criminal' for the purposes of
international human rights law under the first part of the test.
1.315
Under step two, a civil penalty is more likely to be considered
'criminal' in nature if it applies to the public in general rather than a
specific regulatory or disciplinary context, and where there is an intention to
punish or deter, irrespective of the severity of the penalty. While there is no
information in the statement of compatibility as to the purpose of the
penalties, it is clear that the penalties apply in a particular regulatory
context of consumer protection, and apply to licensees of SACCs and consumer
leases rather than the public in general. This would suggest that the penalty
is unlikely to be considered 'criminal' under the second part of the test.
1.316
Even if the penalty is not considered 'criminal' under step two, a
penalty may still be 'criminal' for the purposes of international human rights
law under step three if the penalty carries a substantial pecuniary sanction.
In determining whether a civil penalty is sufficiently severe to amount to a
'criminal' penalty under step three, the nature of the industry or sector being
regulated and the relative size of the penalties in that regulatory context is
relevant. No
information is provided in the statement of compatibility as to the amount of
the penalty in context, however it is noted that the maximum civil penalty that
may be imposed (2,000 penalty units, or $420,000) is substantial. This raises
concerns that the penalties may be classified as 'criminal' for the purposes of
international human rights law, due to the substantial pecuniary sanction.
1.317
If the civil penalties were assessed to be 'criminal' for the purposes
of human rights law, this does not mean that the relevant conduct must be
turned into a criminal offence in domestic law nor does it mean that the civil
penalty is illegitimate. Instead, it means that the civil penalty provisions in
question must be shown to be consistent with the criminal process guarantees
set out in article 14 of the ICCPR, including the right not to be tried twice
for the same offence (Article 14(7)) and the right to be presumed innocent
until proven guilty according to law (Article 14(2)).[200]
1.318
Here, there are concerns as to whether the bill would be compatible with
these criminal process guarantees. For example, for many of the proposed civil
penalties there are corresponding criminal offences attaching to the same
conduct, and it is not clear whether a person could be subject to both criminal
and civil penalties for the same conduct. Further, the standard of proof
applicable in the civil penalty proceedings introduced by the bill is the civil
standard of proof (requiring proof on the balance of probabilities) rather than
the criminal standard of proof (requiring proof beyond reasonable doubt),
raising concerns as to whether the measure is compatible with the presumption
of innocence.
1.319
Therefore, if the penalties were classified as 'criminal' for the
purposes of international human rights law, the committee's usual expectation
is that the statement of compatibility would explain how the civil penalties
are compatible with these criminal process rights, in particular whether any
limitations on those rights are permissible.
Strict liability offences
1.320
The bill also introduces a series of strict liability offences alongside
several of the civil penalty provisions discussed above in relation to SACCs
and consumer leases.[201] The strict liability penalties range from 10 penalty units to 100 penalty
units.
Compatibility of the measure with
the presumption of innocence
1.321
As noted earlier, article 14(2) of the ICCPR provides that everyone
charged with a criminal offence has the right to be presumed innocent until
proven guilty. Generally, consistency with the presumption of innocence
requires the prosecution to prove each element of a criminal offence beyond
reasonable doubt. The effect of applying strict liability to an element of an
offence is that no fault element needs to be proven by the prosecution (although
the defence of mistake of fact is available to the defendant). The strict
liability offences engage the presumption of innocence because they allow for the
imposition of criminal liability without the need to prove fault.
1.322
Strict liability offences will not necessarily be inconsistent with the
presumption of innocence provided that they are within reasonable limits, taking
into account the importance of the objective being sought, and maintain the
defendant's right to a defence. In other words, such offences must be
rationally connected and proportionate to the objective being sought.
1.323
The statement of compatibility generally acknowledges that there are
human rights implications of the strict liability offences when it states:
Consistent with the Government's draft legislation, this bill
imposes strict liability offences on SACC providers and consumer lease
providers for some breaches of the new requirements.
The imposition of strict liability for these offences is
appropriate because of the potentially serious financial impact a contravention
may have on an affected consumer. Requiring fault to be demonstrated as part of
the offence would undermine deterrence and increase the likelihood of
contraventions that could impact negatively on vulnerable consumers.
Furthermore, by addressing rip-offs and predatory behaviour
by SACC lenders and consumer lease providers, and improving financial
inclusion, the bill would enhance the protection of human rights recognised
under the International Covenant on Economic, Social and Cultural Rights.[202]
1.324
However, there is no specific engagement in the statement of
compatibility with the right to presumption of innocence. Further, while the
objective of protecting vulnerable consumers is likely to be a legitimate
objective, and the strict liability offences appear to be rationally connected
to this, further information would have been useful in the statement of
compatibility as to the proportionality of the measures. For instance, as
noted earlier, some of the strict liability offences impose substantial
criminal penalties of up to 100 penalty units.[203] It is not clear from the information provided why some of the strict liability
offences attract more severe criminal penalties than others, particularly in
circumstances where the accompanying civil penalty is 2000 penalty units for
all of the strict liability offences.
Committee comment
1.325
The committee draws the human rights implications of the bill to
the attention of the legislation proponent and the Parliament.
1.326
If the bill proceeds to further stages of debate, the committee
may seek further information from the legislation proponent with respect to the
human rights implications of the bill.
Bills not raising human rights
concerns
1.327
Of the bills introduced into the Parliament between 26 and 28 March 2018,
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):
- Aboriginal and Torres Strait Islander Amendment (Indigenous Land
Corporation) Bill 2018;
- Aboriginal and Torres Strait Islander Land and Sea Future Fund
Bill 2018;
- Aboriginal and Torres Strait Islander Land and Sea Future Fund
(Consequential Amendments) Bill 2018;
- Air Services Amendment Bill 2018;
- A New Tax System (Medicare Levy Surcharge—Fringe Benefits)
Amendment (Excess Levels for Private Health Insurance Policies) Bill 2018;
- Australian Astronomical Observatory (Transition) Bill 2018;
- Biosecurity Legislation Amendment (Miscellaneous Measures) Bill
2018;
- Commerce (Trade Descriptions) Amendment Bill 2018;
-
Corporations Amendment (Asia Region Funds Passport) Bill 2018;
- Customs Amendment (Illicit Tobacco Offences) Bill 2018;
- Education and Other Legislation Amendment (VET Student Loan Debt
Separation) Bill 2018;
- Fair Work Amendment (Better Work/Life Balance) Bill 2018;
- Fair Work Amendment (Tackling Job Insecurity) Bill 2018;
- Higher Education Support Amendment (National Regional Higher
Education Strategy) Bill 2018;
- Intellectual Property Laws Amendment (Productivity Commission
Response Part 1 and Other Measures) Bill 2018;
-
Interactive Gambling Amendment (Lottery Betting) Bill 2018;
-
Medicare Levy Amendment (Excess Levels for Private Health
Insurance Policies) Bill 2018;
- Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies)
Amendment Bill 2018;
-
Primary Industries Levies and Charges Collection Amendment Bill
2018;
- Private Health Insurance Legislation Amendment Bill 2018;
- Public Sector Superannuation Legislation Amendment Bill 2018;
- Social Services Legislation Amendment (Payments for Carers) Bill
2018;
- Statute Update (Autumn 2018) Bill 2018;
- Student Loans (Overseas Debtors Repayment Levy) Amendment Bill
2018;
- Treasury Laws Amendment (ASIC Governance) Bill 2018;
- Treasury Laws Amendment (Australian Consumer Law Review) Bill
2018;
- Treasury Laws Amendment (OECD Multilateral Instrument) Bill 2018;
- Treasury Laws Amendment (Tax Integrity and Other Measures) Bill
2018; and
- Underwater Cultural Heritage (Consequential and Transitional
Provisions) Bill 2018.
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