Concluded matters
2.1
This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
2.2
Correspondence relating to these matters is included at Appendix 3.
Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment
Instrument 2017 (No. 4) [F2017L01678]
Purpose |
Amends the Anti-Money
Laundering and Counter-Terrorism Financing Rules 2007 (No. 1) to allow the
AUSTRAC CEO to exempt reporting entities from particular provisions of the Anti-Money
Laundering and Counter-Terrorism Financing Act 2006 where a requesting
officer of an eligible agency reasonably believes that providing a designated
service to a customer would assist the investigation of a serious offence |
Portfolio |
Attorney-General |
Authorising legislation |
Anti-Money Laundering
and Counter-Terrorism Financing Act 2006 |
Last day to disallow |
15 sitting days after
tabling (tabled Senate and House of Representatives on 5 February 2018) |
Right |
Fair trial and fair hearing
(see Appendix 2) |
Previous report |
3 of 2018 |
Status |
Concluded examination |
Background
2.3
The committee first reported on the instrument in its Report 3 of
2018, and requested a response from the Attorney-General by 11 April 2018.[1]
2.4
A response from the Minister for Law Enforcement and Cyber Security was
received on 27 April 2018. The response is discussed below and is reproduced in
full at Appendix 3.
Exemptions for reporting entities from compliance with obligations under
the Anti-Money Laundering and Counter-Terrorism Financing Act 2006
2.5
The instrument allows the CEO of the Australian Transaction Reports and
Analysis Centre (AUSTRAC) to exempt reporting entities from certain obligations
under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF
Act).
2.6
Section 75.2 of the instrument provides that, if a requesting officer[2] of an eligible agency[3] reasonably believes that providing a designated service to a customer would
assist the investigation of a serious offence,[4] the officer may request the AUSTRAC CEO to exempt specified reporting entities
from certain obligations under the AML/CTF Act.[5]
2.7
Under the AML/CTF Act, 'designated services' include (among other
things) dealings with accounts by financial institutions, the administration of
trusts, the supply of goods by way of lease or hire-purchase, and the guarantee
of loans.[6] A reporting entity is any person that provides a designated service.[7]
Compatibility of the measure with
the right to a fair trial and fair hearing
2.8
The right to a fair trial and fair hearing is protected by article 14 of
the International Covenant on Civil and Political Rights (ICCPR). Additional
guarantees in the determination of a criminal charge include the right to be
presumed innocent and the right not to incriminate oneself.[8] The right also encompasses
notions of the fair administration of justice and prohibits investigatory
techniques that incite individuals to commit a criminal offence.[9]
2.9
The initial human rights analysis stated that an exemption granted by
the AUSTRAC CEO may engage the right to a fair trial in this respect. This was
because it was unclear whether exempting reporting entities from compliance
with obligations under the AML/CTF Act could permit those entities (on behalf
of a law enforcement officer) to encourage or incite an individual to commit a
criminal offence, or to provide incriminating information that might later be
relied upon in criminal proceedings. That is, it was unclear whether the
exemption could allow conduct which rises to the level of entrapment for the
purposes of international human rights law which would constitute a limitation
on the right to a fair trial.[10]
2.10
Limitations on human rights may be permissible where the measure pursues
a legitimate objective, is effective to achieve (that is, rationally connected
to) that objective, and is a proportionate means of achieving that objective.
2.11
The statement of compatibility for the instrument does not identify that
the right to a fair trial may be engaged and limited and does not explain
whether an exemption granted by the AUSTRAC CEO could be used to incite or
encourage the commission of an offence.[11] Accordingly, the statement of compatibility does not provide a substantive
assessment of whether any limitation on the right to a fair hearing and a fair
trial would be permissible.
2.12
However, in relation to the objective of the measure, the explanatory
statement nevertheless states:
AUSTRAC is aware of instances when law enforcement enquiries
with reporting entities about the activities of certain customers have
adversely affected the progress of related law enforcement investigations.
The issue for law enforcement arises when reporting entities
undertake actions, in line with their obligations under the AML/CTF Act, which
have the effect of alerting customers to possible closer scrutiny of their
financial transactions. Customers then cease their activities with the
reporting entity, thus limiting the ability of law enforcement officers to
investigate the financial transactions.
A temporary exemption from certain AML/CTF Act obligations is
needed in circumstances where actions taken by reporting entities, in line with
these AML/CTF obligations, could undermine invstigations by law enforcment into
certain customers of the reporting entities.[12]
2.13
Ensuring the effective investigation of serious offences is likely to
constitute a legitimate objective for the purposes of international human
rights law.
2.14
However, it was unclear from the information provided whether the
measure is rationally connected and proportionate to this objective. For
example, in relation to whether the measure is rationally connected, it was
unclear how compliance with the specific obligations listed in section 75.3
would operate to undermine an investigation.
2.15
In relation to the proportionality of the measure, it was unclear
whether there are adequate and effective safeguards to ensure that reporting
entities (on behalf of law enforcement officials or otherwise) are not able to
incite or encourage the commission of an offence, or to ensure that evidence
obtained by enticement is not relied upon in criminal or civil proceedings.
2.16
Accordingly, the committee requested advice as to whether the
measure is compatible with the right to a fair trial and fair hearing
including:
- whether an exemption granted by the AUSTRAC CEO could permit law
enforcement officers (acting through reporting entities) to incite or encourage
the commission of an offence (including whether there are any safeguards in
place);
- if the right to a fair trial and fair hearing may be limited by
the measure:
- how the measure is effective to achieve (that is, rationally
connected to) its stated objectives; and
- whether any limitation is a reasonable and proportionate means of
achieving the stated objective (including whether there are adequate and
effective safeguards in place, such as, to ensure that law enforcement officers
are not able to incite or encourage the commission of an offence, or to rely on
evidence that has been improperly obtained in criminal proceedings).
Minister's response
2.17
The minister's response explains the scope of obligations imposed on
reporting entities under the AML/CTF Act as including:
- Identification and verification. Reporting entities must identify their customers,
and verify those customers’ identity before providing a designated service.
- Developing and maintaining an
AML/CTF Program. Reporting entities
must have and comply with anti-money laundering and counter-terrorism financing
programs (AML/CTF programs), which are designed to identify, mitigate and
manage the money laundering or terrorist financing (ML/TF) risks a reporting
entity may reasonably face in providing a designated service.
- Ongoing customer due diligence. As part of its AML/CTF Program, reporting entities
are required to have in place appropriate systems and controls to determine
whether additional customer information should be collected and/or verified on
an ongoing basis to ensure that the reporting entity holds up-to-date
information about its customers. This process is known as 'ongoing customer due
diligence' (OCDD). OCDD ensures customers are monitored on an ongoing basis to
identify, mitigate and manage any ML/TF risk posed by providing designated
services. The decision to apply the OCDD process to a particular customer
depends on the customer's level of assessed ML/TF risk.
- Enhanced customer due diligence. As part of OCDD, reporting entities are also
required to implement a transaction monitoring program and develop an 'enhanced
customer due diligence' (ECDD) program. Where a reporting entity determines
that the ML/TF or other serious crime risk associated with dealing with a
certain customer is high, it is required to implement a range of ECDD measures.
These measures may include:
- seeking further information
from the customer to clarify or
update existing information, obtain further information, or clarify the nature
of the customer's ongoing business with the reporting entity;
- undertaking more detailed
analysis of the customer's information and beneficial owner information, including, where appropriate, taking
reasonable measures to identify the source of wealth and source of funds for
the customer and each beneficial owner; and
- conducting further analysis and
monitoring of the customer’s transactions, including the purpose or nature of specific transactions, and the
expected nature and level of transaction behaviour, including future
transactions.
2.18
The minister's response further sets out how the application of these
obligations may cause challenges in the context of an investigation of a
customer for a particular offence:
An issue arises where, as a result of law enforcement
enquiries, a reporting entity forms a suspicion that a customer or their
account is involved in or is being used to facilitate ML/TF or other serious
crimes. The reporting entity is then obliged to take action in line with its
OCDD/ECDD obligations under the AML/CTF Act. These actions may result in the
customer being tipped-off to the fact that either they personally or their
financial transactions have been flagged as suspicious and are likely under
enhanced scrutiny. These customers often decide to cease their activities with
the reporting entity, thereby limiting the ability of law enforcement agencies
to continue to investigate and follow the financial transactions.
The amendments made by the Anti-Money Laundering and
Counter-Terrorism Financing Rules Amendment Instrument 2017 (No. 4) (the
Amendment Instrument) are intended to address this issue. The Amendment
Instrument may provide reporting entities with assurance that they will not be
in breach of their obligations under the AML/CTF Act if, after being alerted to
the high-risk nature of a customer following law enforcement enquiries and/or
at the request of law enforcement agencies, the reporting entities refrain from
conducting any additional OCDD/ECDD queries and continue to provide that
customer with designated services to avoid ‘tipping off’ the customer whilst
investigation of their financial transactions is ongoing.
The Amendment Instrument also exempts reporting entities from
a number of provisions in Part 12—Offences of the AML/CTF Act. The exemption
from these provisions addresses a situation where, as a result of law
enforcement enquiries, a reporting entity is made aware that a customer is not
who they claim to be. If the reporting entity were to continue to provide that person
with a designated service, they could potentially be in breach of sections 136
(false or misleading information), 137 (producing false or misleading
documents), 138 (false documents), 139 (providing a designated service using a
false customer name or customer anonymity).
Reporting entities are also exempted from section 142 of the
AML/CTF Act (conducting transactions so as to avoid reporting requirements
relating to threshold transactions). This is necessary to ensure that they do
not commit an offence when conducting transactions that they have reason to
believe, following law enforcement enquiries, are likely to have been
deliberately structured to avoid giving rise to a threshold transaction that
would otherwise need to have been reported under section 43 of the AML/CTF Act.
2.19
In relation to whether the measures could permit law enforcement
officers (acting through reporting entities) to incite or encourage the
commission of an offence, the minister's response states:
The Committee's report notes that the right to a fair trial,
which is guaranteed by article 14 of the International Covenant on Civil and
Political Rights (ICCPR), also encompasses notions of the fair administration
of justice and prohibits investigatory techniques that incite individuals to
commit a criminal offence, citing the European Court of Human Rights (ECHR)
cases of Ramanauskas v. Lithuania and Teixeira de Castro v. Portugal in support.
In Ramanauskas, the ECHR held that ‘incitement’ occurs
where law enforcement officers (whether themselves or through persons acting on
their instructions) do not confine themselves to investigating criminal
activity in an essentially passive manner, but exert such an influence on the
subject as to incite the commission of an offence that would otherwise not have
been committed, in order to make it possible to establish the offence (that is,
to provide evidence and institute a prosecution). In other words, the Court
considered whether the offence would have been committed without the
authorities’ involvement.
In Teixeira de Castro, the ECHR held that law
enforcement officers had not confined themselves to investigating criminal
activity in a passive manner because they had instigated the offence, and there
was no evidence to suggest that without their intervention the offence would
have been committed. The Court distinguished the officers’ actions from those
of ordinary undercover agents, who may conceal their identities in order to
obtain information and evidence about a crime without actively inciting its
author to commit it. In reaching its conclusion, the Court emphasised that the
authorities did not appear to have had any good reason to suspect Mr Teixeira
de Castro of being a drug dealer: he had no criminal record and there was
nothing to suggest that he had a predisposition to become involved in drug
trafficking until he was approached by the police. The Court also found that
there were no objective suspicions that Mr Teixeira de Castro had been involved
in any criminal activity, nor was there any evidence to support the argument
that he was predisposed to commit offences.
The principles outlined by the ECHR in Ramanauskas and Teixeira de Castro accord with the approach taken in Australian
jurisdictions in similar cases dealing with ‘entrapment’. As noted by the High
Court in Ridgeway v R, while Australia does not generally recognise
entrapment as a defence to a criminal charge, the cases that have been decided
“favour the view that relief should only be granted if the accused ‘otherwise
would not have committed or would have been unlikely to commit [the offence]’”.
The purpose of the Amendment Instrument is to allow law
enforcement agencies to maintain their visibility over criminal wealth and
financial flows through suspect accounts that may otherwise be closed by
reporting entities due to perceived ML/TF risks, or abandoned by customers that
had been alerted to the fact that their transactions were subject to enhanced
scrutiny. The Amendment Instrument makes no provision for, and is not capable
of in any way authorising or affecting, the use of particular investigatory
techniques by law enforcement agencies, nor does it provide any means for law enforcement
to exert influence over a customer or incite them to commit an offence, that is
not otherwise available to them within the existing confines of the law.
The mechanism provided for by the Amendment Instrument may
only be exercised where an investigation into a serious offence has already
commenced, i.e. where law enforcement already have sound reasons to suspect
the persons prior involvement in particular unlawful activities. Further, it
requires a requesting officer—of the requisite seniority—to provide a written
statement to the AUSTRAC CEO confirming that they reasonably believe that the
continued provision of a designated service(s) by a reporting entity would
assist with the ongoing investigation of that offence. Accordingly, the
relevant law enforcement agency must already have formed the relevant suspicion
and commenced an investigation in order to make an application; the exemption
mechanism cannot be utilised to establish criminal intent that had previously
been absent.
It is also important to note that the Amendment Instrument
has no coercive or compulsive effect. The exemption mechanism provides
reporting entities with the comfort of regulatory relief in the event that they
choose to assist and cooperate with a law enforcement investigation into a
serious offence. The Amendment Instrument does not allow law enforcement
agencies to compel a reporting entity to continue to provide a designated
service to a customer; that will continue to be a decision made by each
reporting entity in line with its risk-based AML/CTF systems and controls.
2.20
Accordingly, this information demonstrates that the measures will not
enable reporting entities to encourage or incite the commission of an offence.
The minister's response also outlined a number of further safeguards in
relation to the operation of the measure which may assist to ensure its human
rights compatibility including:
The measures are subject to appropriate safeguards, including
requirements for applications to:
- be made by a senior official
having reasonable grounds to believe that the exemption would assist in the
investigation of a serious offence;
- include a declaration that the
information provided in the application is true, accurate, and complete; and
- be signed off by the AUSTRAC CEO.
The operation of the exemption is also limited to a defined
period of six months, starting on the date specified in the notice of the
exemption decision, or until the eligible agency notifies both the AUSTRAC CEO
and the exempted reporting entity or entities that the relevant investigation
has ceased—whichever occurs first.
2.21
This means that, given the context of the measure and the existence of
relevant safeguards, the measures are likely to be compatible with the right to
a fair trial and fair hearing.
Committee response
2.22
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.23
The committee notes that the measure is likely to be compatible
with the right to a fair trial and fair hearing.
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 reports |
3 & 4 of 2018 |
Status |
Concluded examination |
Background
2.24
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.[13] The minister's response to the committee's inquiries was received on
19 April 2018 and discussed in Report 4 of 2018.[14]
2.25
The bill passed both houses on 10 May 2018 and received Royal Assent on
22 May 2018.
2.26
The committee requested a further response from the minister by 23
May 2018. The response, received on 23 May, is discussed below and is
reproduced in full at Appendix 3.
Permitting disclosure of spent, quashed and pardoned convictions in certain
circumstances
2.27
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
2.28
The initial human rights analysis stated that the measures engage the
right to privacy and the right to work.[15] 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.
2.29
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.[16]
2.30
The initial analysis noted 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.
2.31
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 explains:
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.[17]
2.32
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.
2.33
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.
2.34
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'.[18] 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.[19]
2.35
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.
2.36
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 first response
2.37
The minister's first response explained 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 explained 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.
2.38
The minister's response further explained 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.
2.39
It was 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 was 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.[20] In this respect, the minister's response set 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.
2.40
The minister further emphasised 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.
2.41
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.
2.42
However, it was 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 stringent 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.
2.43
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.[21] 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.
2.44
Another relevant factor in determining whether safeguards are sufficient
includes whether there is a possibility of monitoring and access to review.[22] It was noted, for example, that Working with Children Check decisions are able
to be reviewed by applicants through state and territory administrative appeals
tribunals.[23] 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.
2.45
The committee therefore sought 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.
Minister's second response
2.46
The minister's second response provides the following further
information as to whether there are other, less rights restrictive measures
available:
I note the Committee's Report queries whether there are less
rights restrictive alternatives available, including whether only 'serious
offences or offences that are relevant to a person's suitability as a
disability worker' should be taken into account by worker screening units. In
my previous letter to the Committee I noted that even less serious offences
such as shoplifting are considered directly relevant to an individual's
suitability as offences of this nature are directly relevant to an individual's
trustworthiness and integrity. I also note the weight given to such lesser
offences will be relevant in any state and territory worker screening unit
decisions. My previous letter noted this is particularly relevant when
individuals employed within the NDIS will have access to the person with
disability's personal belongings, finances and medication.
I reiterate that state and territory worker screening units
must be provided with sufficient information in order to effectively and
diligently perform their functions and discharge their duties. Limiting the
criminal history information available to the worker screening unit will
diminish the effectiveness of their risk assessments and would fail to give due
regard to the rights of persons with disability to be protected from workers
who may pose an unacceptable risk of harm. I also reiterate that the fact that
an individual may have a criminal conviction for a minor offence, which
occurred a long time ago, only forms one part of the analysis and risk
assessment undertaken by a state or territory worker screening unit and will
not necessarily prevent that worker from gaining employment with an NDIS provider.
2.47
As to whether the risk assessment framework would be set out in
legislation or a legislative instrument, the minister's second response
explains that the NDIS worker screening regime is a shared responsibility of
Commonwealth, state and territory governments. Relevantly, the Commonwealth is
responsible for the broad national policy design and the states and territories
are responsible for implementation and operational elements of the regime,
including introducing legislation establishing the worker screening units
responsible for screening NDIS workers. The response explains that the
elements of the policy making up the worker screening regime (including the
risk assessment framework) are set out in an Intergovernmental Agreement (IGA)
between the Commonwealth and states and territories. The minister's response
explains:
In relation to the risk assessment framework I referred to in
my previous letter to the Committee, the framework is a national policy that
will be agreed to by all participating jurisdictions. Consistent with the
Council of Australian Government's division of responsibility for NDIS worker
screening, states and territories will implement the risk assessment framework
in their jurisdiction, including, where necessary, by amending existing
legislation or introducing new legislation to give effect to the requirements
under the IGA.
I note that before a state or territory worker screening unit
can be prescribed for the purpose of performing NDIS worker screening checks,
under the Bill the Minister needs to be satisfied that the worker screening
unit:
- is required or permitted by or
under a Commonwealth law, a state law or a territory law to obtain and deal
with information about persons who work, or seek to work, with a person with
disability; and
- complies with applicable Commonwealth
law, state law or territory law relating to privacy, human rights and records
management; and
- complies with the principles of
natural justice; and
- has risk assessment frameworks and
appropriately skilled staff to assess risks to the safety of a person with
disability.
Accordingly, before a state or territory worker screening
unit can be prescribed for the purpose of NDIS worker screening each
jurisdiction must demonstrate it satisfies each of the above criteria,
including importantly, the requirement to comply with the principles of natural
justice.
2.48
This further information provided by the minister indicates that, if the
risk assessment framework described by the minister in his first response is
implemented in the manner set out in the minister's second response, it appears
to be a sufficient safeguard for the purposes of international human rights
law. This is particularly in light of the requirement in the bill that, in
order to prescribe the persons to whom the criminal convictions may be
disclosed, the minister is required to be satisfied that the worker screening
unit has risk assessment frameworks and appropriately skilled staff. However,
noting that the specific safeguards are to be operationalised by the states and
territories rather than through federal legislation, much will depend on the
implementation of the NDIS worker screening scheme in practice. In this
respect, it may be useful for there to be ongoing monitoring so as to ensure it
is implemented in a manner compatible with human rights.
2.49
The minister's second response also identifies additional oversight of
the operation of the scheme that will occur:
The Committee may wish to note that during the development of
the Bill, my Department consulted with the Office of the Australian Information
Commissioner. In addition to Ministerial oversight of the worker screening
regime through the process of prescribing state or territory worker screening
units, there will also be Parliamentary oversight and scrutiny of the worker
screening regime through the Bill's requirement to table two written reports of
the operation of the worker screening regime. The first report is to be tabled
by 31 December 2019, and the second is to be tabled by 31 December 2022.
2.50
As to whether a decision relating to a person's suitability for
employment following worker screening is able to be reviewed, the minister's
second response explains:
As the Committee has noted, under the existing working with
children checks regime, states and territories do provide review rights for
those individuals who are subject to an adverse finding. The Committee may also
like to note that under the IGA, state and territory worker screening units
will agree to provide certain review and appeal rights to individual workers
who may be subject to an adverse decision. This will enable an individual to
seek review of decisions of state or territory worker screening units to:
-
issue an exclusion (meaning a
person cannot work in certain roles in the NDIS);
- revoke a clearance;
- apply an interim bar (or temporary
exclusion); and
- suspend a clearance.
In such cases the rules of natural justice and procedural
fairness will apply and where there is an intention to make an adverse decision
states and territories, consistent with the IGA, will:
- disclose the reason the adverse
decision is proposed, except where the NDIS worker screening unit is required
under Commonwealth, state or territory law to refuse to disclose the
information;
- allow the individual a reasonable
opportunity to be heard; and
- consider the individual's response
before finalising the decision.
2.51
The availability of review of adverse decisions is an important
safeguard for the purposes of international human rights law. If the review
mechanisms outlined in the IGA are available at a state and territory level
this would support a conclusion that the measure appears to be a proportionate
limitation on the right to privacy and right to work.
Committee response
2.52
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.53
Based on the information provided, the safeguards identified by
the minister in his responses appear to be capable of addressing the human
rights concerns raised in relation to the disclosure of spent, pardoned and
quashed convictions when undertaking NDIS worker screening. On this basis, the
measure appears to be compatible with the right to privacy and right to work.
2.54
However, noting that the safeguards are to be implemented by the
states and territories rather than through federal legislation, the committee
recommends that the implementation of the NDIS worker screening scheme be
monitored by the Federal government so as to ensure it is implemented in a
manner compatible with human rights.
Compatibility of the measure with the right to equality and
non-discrimination
2.55
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.
2.56
'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).[24] 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.[25]
2.57
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.[26] 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).[27] 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.
2.58
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.[28]
2.59
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 first response
2.60
In relation to whether the differential treatment is rationally
connected and proportionate to the legitimate objective of the measure, the
minister's first response explained:
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.
2.61
From the information provided, it appeared 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 was 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.
2.62
Accordingly, the committee sought 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.
Minister's second response
2.63
The minister's second response refers to his comments relating to the
proposed risk assessment framework and whether the decisions will be reviewed,
and provides the following additional information in relation to the right to
equality and non-discrimination:
Any differential treatment as envisaged by the Act is
reasonable and proportionate. This is because the legitimate objective of the
Bill is to protect persons with disability from harm. I also hold this view
because of the various criteria that must be satisfied before a worker
screening unit can be prescribed under the legislation, including the
safeguards which have been deliberately incorporated within the Bill and the
broader NDIS worker screening framework. Furthermore, any differential
treatment will not constitute unlawful discrimination on the basis that there
is sufficient research and objective evidence that supports the relevance of
criminal records as a basis for determining an individual's risk to vulnerable
people.
I also note the measures in the Bill are consistent with many
of the recommendations that emerged from the Royal Commission Working With
Children Checks Report. This Report along with the other findings of the Royal
Commission serves to highlight the importance of Commonwealth and state and
territory governments working together to ensure that our most vulnerable
community members are protected from harm. The measures in this Bill will help
ensure that persons with disability within the NDIS are afforded the same level
of protection as is currently provided under the Working With Children Checks
regime.
The Bill requires that only a prescribed person or body can
receive, use or disclose information for the purpose of worker screening.
2.64
For the reasons discussed above in relation to the right to privacy and
right to work, it appears the safeguards in the bill would be sufficient for
the purposes of international human rights law if implemented in the manner
described by the minister. The information provided by the minister also
further supports a conclusion that the differential treatment appears to be
based on reasonable and objective criteria. On balance, the measure appears to
be compatible with the right to equality and non-discrimination.
Committee response
2.65
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.66
Based on the information provided, on balance the measure appears
to be compatible with the right to equality and non-discrimination. However,
noting that the safeguards are to be implemented by the states and territories
rather than through federal legislation, the committee recommends that the
implementation of the NDIS worker screening scheme be monitored so as to ensure
it is implemented in a manner compatible with human rights.
Extradition (El Salvador) Regulations 2017 [F2017L01581]
Extradition Legislation Amendment (2017 Measures No. 1) Regulations
2017[F2017L01575]
Purpose |
The Extradition (El
Salvador) Regulations 2017 seek to declare El Salvador as an 'extradition
country' for the purposes of the Extradition Act 1988; the Extradition
Legislation Amendment (2017 Measures No. 1) Regulations 2017 seek to remove
reference to India from the list of extradition countries and also seek to
amend certain definitions in the Extradition (Physical Protection of Nuclear
Material) Regulations 1988 and the Extradition Regulations 1988 |
Portfolio |
Attorney-General |
Authorising legislation |
Extradition Act 1988 |
Last day to disallow |
[F2017L01581]: 15 sitting days
after tabling (tabled Senate 7 December 2017)
[F2017L01575]: 15 sitting
days after tabling (tabled Senate 6 December 2017) |
Rights |
Prohibition against
torture, cruel, inhuman and degrading treatment; life; fair hearing and fair
trial; liberty; equality and non-discrimination (see Appendix 2) |
Previous report |
3 of 2018 |
Status |
Concluded examination |
Background
2.67
The committee first reported on the regulations in its Report 3 of
2018, and requested a response from the Attorney-General by 11 April 2018.[29]
2.68
The Attorney-General'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.
2.69
The committee has considered human rights issues raised by extradition
regulations and the Extradition Act 1988 (the
Extradition Act) on several previous occasions.[30] As the Extradition Act was legislated prior to the establishment of the
committee, the scheme has never been required to be subject to a foundational
human rights compatibility assessment by the relevant minister in accordance
with the terms of the Human Rights (Parliamentary Scrutiny) Act 2011.
The committee has previously stated that the Extradition Act would benefit
from a comprehensive review from the relevant minister to assess its provisions
against Australia's obligations under international human rights law.[31]
Extending the definition of 'extradition country' to include El Salvador
2.70
The Extradition Act provides the legislative basis for extradition in
Australia. The Extradition Act allows Australia to receive extradition requests
from countries that are declared by regulation to be an 'extradition country'[32] and for powers under that Act to be exercised in relation to such a request.
2.71
The Extradition (El Salvador) Regulations 2017 (the El Salvador
regulations) seek to declare El Salvador as an 'extradition country' for the
purposes of the Extradition Act. Previously, the extradition relationship
between Australia and El Salvador was governed by the Treaty between
the United Kingdom of Great Britain and Ireland and El Salvador for the Mutual
Surrender of Fugitive Criminals 1883, which Australia inherited when it
obtained independent status as a constitutional monarchy.
2.72
As the El Salvador regulations expand the operation of the Extradition
Act, it is necessary to assess the human rights compatibility of the
Extradition Act as a whole when considering these regulations.
2.73
The committee has previously considered that extradition pursuant to the
Extradition Act may engage and limit a range of human rights, including the:
- prohibition against torture, cruel, inhuman and degrading
treatment;
- right to life;
- right to a fair hearing and fair trial;
-
right to liberty; and
-
right to equality and non-discrimination.[33]
2.74
The statement of compatibility acknowledges that these rights are
engaged by the El Salvador regulations.[34]
Compatibility of the measure with
the prohibition against torture, cruel, inhuman and degrading treatment
2.75
Australia has obligations under article 3 of the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment (CAT) not to extradite
a person to another country where there are substantial grounds for believing
that he or she would be in danger of being subjected to torture. Australia's
obligations under article 7 of the International Covenant on Civil and
Political Rights (ICCPR) are broader in scope and not only prohibit torture but
also prohibit 'cruel, inhuman or degrading treatment or punishment'. The United
Nations (UN) Human Rights Committee has held that article 7 prohibits
extradition of a person to a place where that person may be in danger of
torture or cruel, inhuman or degrading treatment or punishment if extradited.[35]
2.76
The statement of compatibility states that the El Salvador regulations
are consistent with a person's rights in respect of the prohibition against
torture, cruel, inhuman and degrading treatment.[36] In this respect, the initial human rights analysis noted that section 22(3) of
the Extradition Act prohibits the Attorney-General from determining that a
person should be surrendered where there are substantial grounds for believing
the person would be in danger of being tortured. This is an important safeguard
for the purposes of international human rights law. However, there is no
equivalent legal requirement in relation to the extradition of persons who may
be in danger of cruel, inhuman or degrading treatment or punishment if
returned. While there is a general discretion for the Attorney-General not to
surrender a person, as stated in previous human rights assessments by the
committee, ministerial discretion not to remove a person, rather than a legislative
obligation, is not of itself a sufficient safeguard for the purposes of
international human rights law.[37]
2.77
The committee sought the advice of the Attorney-General as to the
adequacy of the safeguards in the El Salvador regulations and Extradition Act
in relation to the extradition of persons who may be in danger of being subject
to cruel, inhuman or degrading treatment or punishment upon return to the
extradition country.
Attorney-General's response
2.78
The Attorney-General's response provides the following general
information about the purpose of the extradition regime and of the importance
of balancing extradition and human rights obligations:
Australia takes its human rights obligations very seriously
and is committed to implementing them. Australia also has international
obligations under bilateral and multilateral treaties to extradite persons in
certain circumstances. Australia's extradition regime is an important part of
our ability to combat domestic and transnational crimes, including serious
offences such as terrorism, murder, drug trafficking and so forth. Many of
these crimes impact upon community safety. Both of these sets of obligations
are carefully considered when developing extradition arrangements. Human rights
obligations are given a high priority and only limited where it is necessary to
do so and proportionate to the objectives of ensuring Australia is not a safe
haven for alleged criminals seeking to evade justice and ensuring Australia can
pursue alleged criminals offshore.
2.79
As to the adequacy of the safeguards in the El Salvador regulations and
the Extradition Act, the minister took issue with the view that discretionary
safeguards (as opposed to legislative safeguards) would likely be insufficient
for the purposes of international human rights law:
I reiterate that the Government does not accept the
Committee's position that in order for Australia's domestic system to be
consistent with our human rights obligations there needs to be express
statutory provisions implementing the obligation. The Government is committed
to ensuring that Australia's domestic extradition regime under the Extradition
Act 1988 (the Extradition Act) operates in a manner that is consistent with
Australia's international law obligations, including international human rights
law obligations. Under paragraph 22(3)(f) of the Extradition Act, the
Attorney-General has a general discretion not to surrender a person. In
exercising this discretion, an assessment of Australia's human rights
obligations is undertaken on a case by case basis, which covers the matters
identified by the Committee in its report. For these reasons I consider that
the general discretion is an appropriate and adequate safeguard.
2.80
However, the concern does not centre on the absence of an express
statutory provision implementing a human rights obligation per se.[38] Rather, the committee's inquiries relate to whether there are adequate
safeguards included in the law so as to ensure compatibility with Australia's
obligations under Article 3 of the CAT and Article 7 of the ICCPR not to
extradite, deport, expel or otherwise remove a person from territory under its
jurisdiction where there are substantial grounds for believing that there is a
real risk of the person being subjected to torture or cruel, inhuman and degrading
treatment and punishment. In this respect, it is noted that the UN Human Rights
Committee has recently expressed concern that Australia's regulations on
extradition do not appear to comply fully with the non-refoulement standard
under the ICCPR.[39] In this context, discretionary safeguards alone may be insufficient for the
purposes of international human rights law.
2.81
In relation to the adequacy of safeguards in the El Salvador regulations
and Extradition Act, the Attorney-General's response states that section
22(3)(b) of the Extradition Act gives effect to Australia's obligations under
the CAT insofar as it requires the minister to be satisfied that, on surrender,
the person will not be subjected to torture of the kind falling within the
scope of Article 1 of the CAT. Similarly, the minister's response explains
that even where a person has waived extradition, under paragraph 15B(3)(a) of
the Extradition Act, the Attorney-General may only surrender the person if the
Attorney-General does not have substantial grounds for believing that the
person would be in danger of being subjected to torture, if surrendered. As
stated in the initial analysis, this is an important safeguard for the purposes
of international human rights law.
2.82
As to the absence of any explicit safeguard prohibiting extradition
where persons may be subjected to cruel, inhuman or degrading treatment on
surrender, the minister's response explains:
Subsection 22(3) does not require explicit reference to the
matters in Article 7 of the International Covenant on Civil and Political
Rights (ICCPR) in order to fulfil Australia's obligations under that
Covenant. Under paragraph 22(3)(f) of the Extradition Act, the Attorney-General
has a broad, general discretion whether to surrender a person to a foreign
country. In accordance with the principle of procedural fairness, a person who
is the subject of an extradition request may make submissions on any matter he
or she wishes the Attorney-General to take into consideration when making a
surrender determination. This can include submissions regarding compatibility
of the person's surrender with Australia's obligations under Article 7 of the
ICCPR. In addition, in the absence of such representations, if the
Attorney-General's Department was aware of any issue or situation which might
engage Australia's obligations under Article 7 of the ICCPR, the Department
would bring this to the Attorney General's attention. For example, the
Department's analysis may consider country information, reports prepared by non-government
organisations and information provided through the diplomatic network.
As noted above, I consider that the general discretion is an
appropriate and adequate safeguard.
2.83
The general discretion for the minister to determine whether to
surrender a person under section 22(3)(f) of the Extradition Act may, in its
practical application, capture the circumstance of persons who may be subject
to cruel, inhuman or degrading treatment or punishment if extradited. However,
the committee must assess the compatibility of the regulations and legislation
as drafted, including whether there is scope for them to be implemented in ways
that may create a risk that a person is extradited even where there are
substantial grounds for believing that there is a real risk of cruel, inhuman
and degrading treatment and punishment.[40] In this respect, unconstrained discretion is generally insufficient for human
rights purposes to ensure that powers are exercised in a manner that is
compatible with human rights. That is, it is possible that the Attorney-General
may decline to exercise his or her discretion not to surrender someone even
though there is a real risk of the person being subject to cruel, inhuman and
degrading treatment and punishment. In particular, the UN Human Rights
Committee has emphasised the importance of laws using precise criteria and not
conferring unfettered discretion on those charged with their execution,[41] and that a legislative provision in very general terms does not, of itself,
provide a satisfactory legal safeguard against arbitrary application.[42]
2.84
In other words, the fewer legal safeguards that are available, the
greater the risk of incompatibility with human rights. This is particularly the
case for absolute rights, such as those contained in Article 7 of the ICCPR,
which cannot be limited by states parties. Therefore, concerns remain regarding
the fact that there is no express requirement in the Extradition Act requiring
consideration be given to whether a person to be extradited may be subject to
cruel, inhuman or degrading treatment or punishment.
Committee response
2.85
The committee thanks the Attorney-General for his response and
has concluded its examination of this issue.
2.86
The committee considers that the general discretion in section
22(3)(f) of the Extradition Act for the minister to determine whether to
surrender a person is not likely to be sufficient to ensure compatibility with
Australia's obligations in article 7 of the ICCPR not to extradite persons who
may be subject to cruel, inhuman or degrading treatment or punishment if
extradited.
2.87
The committee reiterates its previous comment that the
Extradition Act would benefit from a comprehensive review from the relevant
minister to assess its provisions against Australia's obligations under
international human rights law.
Compatibility of the measure with
the right to life
2.88
The right to life imposes an obligation on Australia to protect people
from being killed by others or from identified risks. While the ICCPR does not
completely prohibit the imposition of the death penalty, international law
prohibits states which have abolished the death penalty (such as Australia)
from exposing a person to the death penalty in another country. This prohibits
Australia from deporting or extraditing a person to a country where that person
may face the death penalty.[43] The Constitution of El Salvador retains the death penalty only for cases
provided by military laws during an international state of war.[44]
2.89
The statement of compatibility states that the Extradition Act is
'consistent with the Australian Government's longstanding opposition to the
death penalty', citing section 22(3) of the Extradition Act.[45] That section requires the Attorney-General not to surrender a person to a
country where the offence is punishable by a penalty of death, unless the
country gives an undertaking that the person will not be tried for the offence;
if tried, the death penalty will not be imposed; or, if the death penalty is
imposed it will not be carried out. Further, if a person waives extradition in
relation to one or more extradition offences, the Attorney-General may only
determine that the person be surrendered if the Attorney-General is satisfied
that, on surrender to the extradition country, there is no real risk that the
death penalty will be carried out upon the person in relation to any offence.[46]
2.90
The statement of compatibility also notes that in practice undertakings
relating to the death penalty in extradition cases have always been honoured.[47] It also notes that 'given the public nature of extradition, the Australian
Government would most likely be aware of a breach of a death penalty
undertaking' as Australia monitors Australian citizens who have been extradited
through its consular network. Additionally, it states that it is open to the
decision-maker to consider ongoing monitoring as a condition of the extradition
and it is open to the person subject to the extradition request to challenge
the decision.[48]
2.91
These are important safeguards that are relevant to the determination of
whether the Extradition Act is compatible with the right to life. However, as
noted in the initial human rights analysis, diplomatic assurances and
undertakings may be breached, and section 22 of the Extradition Act does not require the Attorney-General to refuse extradition if there are substantial grounds to
believe the person would be in danger of being subjected to the death penalty
notwithstanding an undertaking. It also does not require any monitoring of the
treatment of people extradited to ensure that assurances are being complied
with.[49] The UN Human Rights Committee has also noted that diplomatic assurances alone
may not be sufficient to eliminate the risk in circumstances where there is no
mechanism for monitoring their enforcement or no means through which the
assurances could be effectively implemented.[50]
2.92
The committee therefore sought
the advice of the Attorney-General as to the adequacy of the safeguards in
place to protect the right to life of persons who may be subject to the death
penalty if extradited.
Attorney-General's response
2.93
In relation to the adequacy of safeguards in place to protect the right
to life, the Attorney-General's response states:
There is no discretion in the Extradition Act that would
allow a person to be surrendered in the absence of an undertaking from the
requesting country that the death penalty will not be imposed.
The assessment of the risk that a person might be subjected
to the death penalty occurs well prior to any request for an undertaking which
would satisfy paragraph 22(3)(c). An extradition request raising potential
death penalty issues is identified by the Attorney-General's Department at the
earliest stages of the extradition process. If the Department held any concerns
about the bona fides of a death penalty undertaking, the Department would
recommend that the Attorney-General did not accept and progress the request. If
a death penalty undertaking is requested, it would be requested and provided by
a formal Government to Government communication. The Full Federal Court
decision in McCrea v Minister for Justice and Customs [2005] FCAFC 180
sets out the test for an acceptable death penalty undertaking. The test
requires that the Attorney-General be satisfied that 'the undertaking is one
that, in the context of the system of law and government of the country seeking
surrender, has the character of an undertaking by virtue of which the death
penalty would not be carried out'.
2.94
It is acknowledged that diplomatic assurances and undertakings are a standard
means by which a requesting state provides the assurances which the requested
state considers necessary for its consent to extradition.[51] European Court of Human Rights jurisprudence has stated that such assurances
carry a presumption of good faith, and it is appropriate to apply that
presumption to a requesting state which has a long history of respect for
democracy, human rights and the rule of law, and which has longstanding
extradition arrangements with the requested state.[52]
2.95
The Attorney-General's response further states that the department is
not aware of any case in which the terms of a diplomatic undertaking issued to
Australia in relation to the death penalty have been breached. It also explains
that information regarding whether there had been any breaches of undertakings
is reported to parliament annually in the Attorney-General's department annual
report.[53] Whether there have been any reported breaches of undertakings is also relevant
in determining whether such undertakings constitute a sufficient safeguard.[54]
2.96
However, European Court of Human Rights jurisprudence has also
emphasised that the existence of assurances does not absolve states from their
obligation to consider the practical application of those assurances.[55] As noted in the initial analysis, the UN Human Rights Committee has stated that
diplomatic assurances may not be sufficient to eliminate the risk that the
death penalty is imposed where there is no mechanism for monitoring the
enforcement of assurances or no means through which the assurances could be
effectively implemented.[56] Consistent with this, the UN Human Rights Committee has recently stated that
such assurances must be 'credible and effective...against the imposition of the
death penalty'.[57]
2.97
In relation to monitoring of extradited Australian citizens, the
Attorney-General's response explains:
The Department of Foreign Affairs and Trade (DFAT) is
responsible for the provision of consular assistance to Australians
encountering difficulties overseas. Where DFAT has been informed that an
Australian citizen has been arrested, detained or imprisoned overseas, DFAT
will write to the individual to offer consular assistance. On acceptance of the
services offered, DFAT will provide details of local lawyers and interpreters,
conduct welfare checks and, when necessary, take steps to ensure the detainee
is treated fairly to the extent possible under the laws of the relevant
country, given that consular assistance cannot override local laws.
2.98
The response further explains that Australia does not monitor the status
of foreign nationals who have been extradited by Australia, as Australia has no
consular right of access to non-nationals. The decision to monitor a foreign
national is a matter for that person's country of citizenship. The Attorney-General's
response explains that this is because attempts to monitor foreign nationals
may be seen as infringing on the foreign country's sovereignty and criminal
justice processes. However, with the consent of the person, Australia can
inform consular authorities of their country of citizenship of their
extradition to a third country.
2.99
Based on the information provided by the Attorney-General and in light
of the international jurisprudence, requiring prior undertakings that the death
penalty would not be imposed or implemented, and monitoring compliance with
such undertakings, is likely to be consistent with Australia's obligations
under Article 6(1) of the ICCPR.
2.100
However, if an undertaking is received but the Attorney-General or the
department remain concerned that a death penalty undertaking would not be
honoured, neither section 22(3) of the Extradition Act nor the El Salvador
Regulations expressly prohibit the person from being extradited notwithstanding
that risk. This can be contrasted with the circumstance where a person waives
extradition pursuant to section 15A,[58] where the Attorney-General may only determine a person be surrendered if
satisfied that there is no real risk that the death penalty will be carried out
upon the person in relation to any offence.[59] In this respect, the Attorney-General's response explains that if the
Attorney-General's Department held real concerns that a death penalty
undertaking would not be honoured, it would not recommend that the
Attorney-General progress the extradition request and, in the event the
department or the Attorney-General became aware of a potential breach this
would be raised with the country at the highest diplomatic levels. The
minister's response also explains that if, notwithstanding the receipt of an
undertaking, the Attorney-General considered that a real risk remained that the
person would be subject to the death penalty, the Attorney-General could refuse
extradition in the exercise of the general discretion under section 22(3)(f) of
the Extradition Act.
2.101
The policy to recommend to the Attorney-General that extradition not
proceed if there are concerns a person may be subject to the death penalty
notwithstanding receipt of an undertaking is also an important safeguard.
However, it is noted that this policy requirement is less stringent than the
protection of statutory safeguards. This is because such policies can be
removed, revoked or amended at any time and are not required as a matter of
law. Further, as noted earlier, it is unlikely that the general discretion
provision in section 22(3)(f) would constitute a sufficient safeguard. For this
reason, the Extradition Act could be strengthened by legislating a requirement
that a person not be extradited if, notwithstanding the receipt of an undertaking,
there remains a real risk that the death penalty will be carried out upon the
person.
Committee response
2.102
The committee thanks the Attorney-General for his response and
has concluded its examination of this issue.
2.103
Based on the information provided by the Attorney-General and in
light of the international jurisprudence, the committee considers that
requiring prior undertakings that the death penalty would not be imposed or
implemented, and monitoring compliance with such undertakings, is likely to be compatible
with Australia's obligations under Article 6(1) of the ICCPR in most
circumstances.
2.104
However, the committee notes that the safeguards in section 22(3)
of the Extradition Act could be strengthened by legislating a requirement that
a person not be extradited if, notwithstanding the receipt of an undertaking,
there remains a real risk that the death penalty will be carried out upon the
person.
Compatibility of the measure with
the right to a fair hearing and fair trial
2.105
The right to a fair trial and fair hearing requires that all persons
shall be equal before the courts and everyone has the right to a fair and
public hearing in the determination of any criminal charge. Article 14 of the
ICCPR in turn sets out a series of minimum guarantees in criminal proceedings,
such as the right to be tried without undue delay. While an extradition request
of itself does not amount to determination of a criminal charge,[60] European human rights jurisprudence has recognised that fair trial rights may
be engaged where a person is extradited in circumstances where there is a real
risk of a flagrant denial of justice in the country to which the individual is
to be extradited.[61]
In other words, the right to a fair hearing and fair trial in the European
human rights law context includes an obligation not to return a person (non-refoulement) to a country where they risk a flagrant denial of justice.
2.106
While it is not binding on Australia, the interpretation of the right to
a fair trial and fair hearing under the European Convention of Human Rights is
instructive.[62] It is also noted that the position in European human rights law
jurisprudence is consistent with the United Nations Model Treaty on
Extradition, which includes a mandatory ground of refusing extradition '[i]f
the person whose extradition is requested...would not receive the minimum
guarantees in criminal proceedings, as contained in the International Covenant
on Civil and Political Rights, article 14'.[63] The committee has therefore previously noted its concern that the Extradition
Act does not provide for the denial of a fair trial or fair hearing as a ground
for an extradition objection.[64]
2.107
The statement of compatibility explains that the Australian Government's
position is that article 14 of the ICCPR does not contain non‑refoulement
obligations (that is, obligations not to return a person to their country of
origin).[65] The statement of compatibility does, however, provide information as to
safeguards in the Extradition Act which would allow a decision-maker to
consider matters going to fair hearing and fair trial rights, including the
extradition objection precluding extradition if it would result in double
jeopardy,[66] and the general discretion to refuse surrender.[67] The statement of compatibility further notes that it is open to decision-makers
to request assurances that persons being extradited would receive a fair trial.
2.108
An additional issue in relation to the right to a fair hearing and fair
trial is that, under the Extradition Act, the requesting State is not required
to produce any evidence that there is a case to answer before a person is
extradited (this is sometimes referred to as the 'no evidence' model).[68] Further, a person who may be subject to extradition is prohibited from adducing
any evidence to contradict the allegation that the person has engaged in
conduct constituting an extradition offence (and prohibits a magistrate or
Judge from receiving such evidence).[69] The provisions which govern an appeal to a higher court in relation to
extradition also prohibit a person from adducing such evidence on appeal and
prohibit the court from receiving such evidence on review or appeal.[70]
2.109
The absence of any requirement that there be a case to answer before a
person is extradited raises questions as to whether there are sufficient safeguards
in place to ensure that extradition of persons occurs in a manner that is
compatible with the right to a fair hearing and fair trial. As the Joint
Standing Committee on Treaties noted in its review of Australia's extradition
laws in 2001, 'the consequences for a person who is facing extradition to a
foreign country where the legal system, language and availability of legal
assistance may present great difficulties, mean that extradition cannot be
treated merely as an administrative step'.[71] The statement of compatibility to the El Salvador regulations does not address
the human rights compatibility of the 'no evidence' approach.
2.110
The committee therefore sought
the advice of the Attorney-General as to:
- the adequacy of the safeguards
in place to prevent the extradition of persons who may, on surrender, suffer a
flagrant denial of justice; and
- whether, in not requiring any
evidence to be produced before a person can be extradited, and in preventing a
person subject to extradition from producing evidence about the alleged
offence, the El Salvador regulations and the Extradition Act are compatible
with the right to a fair trial and fair hearing.
Attorney-General's response
Article 14 of the ICCPR and
non-refoulement
2.111
In relation to the adequacy of safeguards in place to prevent the
extradition of persons who may suffer a flagrant denial of justice in the
extradition country, the Attorney-General's response reiterates the
government's view that Article 14 of the ICCPR does not contain non-refoulement
obligations. It is acknowledged that the UN Human Rights Committee has not yet
ruled on whether Article 14 of the ICCPR engages non-refoulement obligations.[72] However, the European human rights jurisprudence coupled with the UN Model
extradition treaty provide insight as to the development of international human
rights law in this area, and suggest that the trend is to recognise that the
right to a fair trial and fair hearing engage non-refoulement obligations where
the person faces a real risk of a flagrant denial of justice if extradited. To
this extent, this comparative jurisprudence provides useful guidance as to how
the UN Human Rights Committee may consider this issue in the future.
2.112
The Attorney-General's response also reiterates that the mandatory
ground of refusal relating to double jeopardy and the general discretionary
power in section 22(3)(f) of the Extradition Act are relevant safeguards in
relation to the right to a fair trial. The response explains:
This discretionary power provides a sufficient basis to
refuse extradition in circumstances where there are legitimate concerns about
the person's access to a fair trial. While Australia's non-refoulement
obligations under the ICCPR do not extend to Article 14 of the ICCPR, in
relevant matters, the Department would put particular claims that a person may
not receive a fair trial in light of their circumstances or any other fair
trial issues before the Attorney-General as relevant considerations in
exercising his or her general discretion. The relevant considerations may
include the extent to which an individual would receive minimum procedural
guarantees in a criminal trial in the country to which he or she is being
returned. Assessment of these claims may include analysis of the person's
claims and any representations or undertakings from the requesting country. The
assessment may also consider country information, reports prepared by
non-government organisations and information provided through the diplomatic
network.
2.113
The department's practice of putting particular claims as to fair trial
issues before the minister when she or he is deciding an extradition request is
an important safeguard. However, apart from double jeopardy, this is not an
express requirement or a mandatory ground of refusal. As noted earlier, a
general executive discretion to refuse to surrender a person may not be a
sufficient safeguard for the purposes of international human rights law.
2.114
The Attorney-General's response further states that expressly including
fair trial as a ground for refusal may generate litigation about issues which
are essentially attributable to differences between the bases of common law and
civil legal systems. The response also states that allowing individuals to
challenge extradition on this basis would be incompatible with the
international principle of comity.
2.115
In this respect, the High Court of Justice of England and Wales stated
in the context of the right to a fair trial under the ECHR, the test of whether
there is a 'real risk of a given Respondent suffering a flagrant denial of a
fair trial' if extradited required consideration of the following:
Lord Carswell in Ullah reminds us that Member States
cannot export the standards and obligations to other States not signatories. On
the contrary, Member States have international obligations, in this context
most often derived from extradition treaties, in this instance from the MoUs
[Memorandum of Understanding].
The burden of raising such an objection to extradition lies
on the Requested Person, although if an objection of substance is raised, it is
for the Requesting State to counter the objection. The standard of proof is
probability. It is a projection of risk: the burden on the RP [Requested
Person] is to show, to the standard of probability, that a real risk of the
specified kind arises. As the criticism of DJ Evans in Brown (paragraph
34) makes clear, the height of the bar is not derived from the standard of proof,
or the establishment of “real risk”, as opposed to straight probability: the
“high test” lies in the degree of denial of fair trial if the risk eventuates.
The rarity of cases where extradition has been rendered
unlawful by reference to Article 6 [right to a fair trial] does not, of course,
amount to any kind of presumption against such a bar, much less a rule of law.
It does serve to emphasise how significant must be the denial of justice in
question, before an effective bar is raised.
The speech of Lord Phillips in RB (Algeria) (paragraph
133) is a useful guide. The consideration of the risk of denial of justice must
go beyond the procedural. Article 6 is a procedural right. The Court should be
giving consideration to the outcome of a breach, if it eventuates.[73]
2.116
This reasoning indicates that in jurisdictions where fair trial rights
do give rise to non-refoulement obligations, the test of 'flagrant denial of
justice' is a stringent one.[74] Therefore, the potential for litigation based on fair trial standards should
not, of itself, preclude fair trial guarantees from being expressly considered
as grounds of refusal under the Extradition Act. This stringent standard and
the requirement that 'Member States cannot export the standards and
obligations' under international human rights treaties to non-party states[75] also accommodate concerns of international comity. Noting the developments in
European human rights jurisprudence in this area and the UN Model Extradition
Treaty, the Extradition Act would benefit from a comprehensive review by the
relevant minister to assess its provisions against Australia's obligations
under international human rights law.
Right to a fair trial and the 'no
evidence' model
2.117
As to whether, in not requiring any evidence to be produced before a
person can be extradited, and in preventing a person subject to extradition
from producing evidence about the alleged offence, the El Salvador regulations
and the Extradition Act are compatible with the right to a fair trial and fair
hearing, the Attorney-General's response states:
Extradition is an administrative legal process whereby a
person may be transferred from one country to another to face prosecution or to
serve a prison sentence for offences against the law of the other country. The
extradition process in Australia does not involve an assessment of guilt or
innocence; it is not a criminal trial.
The purpose of an extradition hearing is to determine whether
a person should be extradited; it is not to test evidence in the case against them.
It is important that a person faces prosecution or serves a sentence in the
country in which he or she has been accused or sentenced. The 'no evidence'
standard has been Australia's preferred approach since 1988 and all of
Australia's modern extradition treaties have been negotiated on this basis.
The term 'no evidence' does not mean 'no information'.
Rather, it means that an extradition request needs to be supported by a
statement of the offence and the applicable penalty, and a statement setting
out the conduct alleged against the person in respect of each offence for which
extradition is sought, but it does not require evidence to be produced which is
sufficient to prove each element of each alleged offence under the laws of the
requested country (such as 'prima facie' evidence including witness statements
and affidavits). Given it is not the purpose of an extradition hearing to test
the evidence, it is appropriate that the person sought to be extradited does
not produce evidence about the alleged offence.
The 'no evidence' standard is in line with the international
trend toward simplifying the extradition process and is consistent with the
United Nations Model Treaty on Extradition. It has allowed Australia to enter
into extradition relations with many civil law countries that would otherwise
have been unable to conduct extradition with Australia. A return by Australia
to a prima facie evidentiary standard would cause considerable disruption to
our existing extradition relationships, and would be very counterproductive in
terms of international law enforcement cooperation.
2.118
It is acknowledged that there are different approaches in different
jurisdictions to this issue.[76] While the Attorney-General notes the trend toward simplifying the extradition
process, there are some jurisdictions where, having regard to principles of
fundamental justice, there is a requirement for some weighing of evidence
before deciding whether to extradite a person. Canadian courts, for example,
have held the principles of fundamental justice applicable to an extradition
hearing require that the person sought for extradition receive a meaningful
judicial determination of whether the case for extradition has been
established.[77] This requires some minimal weighing of evidence to prevent a person from being
deprived of their liberty in circumstances where there is no evidentiary basis
to do so.[78] Where the evidence is so defective or appears so unreliable that a judge
concludes it would be dangerous or unsafe to convict, the case would be
considered insufficient for committal for extradition.[79]
2.119
The Attorney-General's response otherwise does not substantively address
the committee's inquiry as to whether the 'no evidence' model is compatible
with the right to a fair hearing and fair trial. Accordingly, it is not
possible to conclude whether the 'no evidence' approach is compatible with the
right to a fair trial and fair hearing.
Committee response
2.120
The committee thanks the Attorney-General for his response and
has concluded its examination of this issue.
2.121
Based on the information provided, it is not possible to conclude
whether the measures in the Extradition Act discussed in the preceding analysis
are compatible with the right to a fair trial and fair hearing.
2.122
The committee reiterates its previous comment that the
Extradition Act would benefit from a comprehensive review from the relevant
minister to assess its provisions against Australia's obligations under
international human rights law.
Compatibility of the measure with
the right to liberty
2.123
The right to liberty is a procedural guarantee requiring that persons
not be arbitrarily and unlawfully deprived of liberty. This requires that
detention must be lawful, reasonable, necessary and proportionate in all the
circumstances. Imposing a rule that bail must be refused except in special
circumstances, as occurs in the Extradition Act,[80] appears to limit this right. This concern is heightened by the potentially
lengthy period in which a person may be detained during extradition
proceedings.[81] It was noted that this is of particular concern in the context of the
El Salvador regulations, which increase the period in which a person must
be brought before a magistrate or eligible Federal Circuit Court judge after
being arrested from 45 days[82] to 60 days.[83]
2.124
As such, the limitation on the right to liberty must be shown to seek to
achieve a legitimate objective, have a rational connection to that objective
and be proportionate. The statement of compatibility notes that a
presumption against bail is appropriate 'given the serious flight risk posed in
extradition matters and Australia's international obligations to secure the
return of the alleged offenders to face justice in the requesting country'.[84] However, as the committee has previously stated, while preventing people who
may be a flight risk from avoiding the extradition process may be capable of
being a legitimate objective, it is not clear that a blanket prohibition on
bail except in special circumstances is a proportionate response.[85]
2.125
In Griffiths v Australia, the UN Human Rights Committee found
that Australia had breached article 9(1) of the ICCPR on the basis that the
complainant's continuing detention pending extradition without adequate
individual justification was arbitrary.[86] It reiterated that in order to avoid a characterisation of arbitrariness,
detention should not continue beyond the period for which the State party could
provide appropriate justification.[87] It also concluded that there may be less rights-restrictive measures to achieve
the same ends, such as the imposition of reporting obligations, sureties or
other conditions which would take account of individual circumstances.[88]
2.126
The UN Human Rights Committee also found Australia in violation of
article 9(4) of the ICCPR in circumstances where the complainant was
'effectively precluded, by virtue of the State party's law and practice, from
taking effective proceedings before a court in order to obtain a review of the
lawfulness of his continuing detention, as the courts had no power to review
whether his detention continued to be lawful after a lapse of time and to order
his release on this basis'.[89] The Australian government responded to this ruling by noting (relevantly) that
it was open to the complainant to apply for bail, citing the power of the Court
under section 21(6) of the Extradition Act to order release on bail if there
were 'special circumstances' justifying that release, and also pointed to the
availability of the writ of mandamus in the High Court of Australia and judicial
review under the Judiciary Act 1903.[90] However, the initial human rights analysis stated that it is not clear that the
requirement of a court considering whether 'special circumstances' exist would
be sufficient consideration of whether a person's detention may be compatible
with article 9. It was also not clear how such matters would be able to be
raised through judicial review. Therefore, the previous analysis noted that
questions arise as to whether the current framework for review of detention in
the Extradition Act, as expanded by the El Salvador regulations, provides
sufficient opportunity for persons to challenge the lawfulness of their
continuing detention for the purposes of international human rights law.
2.127
Further, extradition invariably results in the detention of a person
pending extradition and may also involve lengthy detention in a foreign country
while awaiting trial. This potentially lengthy detention of persons without
first testing the evidence against them raises additional concerns that the 'no
evidence' model discussed above may give rise to a circumstance where a person
may be arbitrarily detained. This matter was not addressed in the statement of
compatibility.
2.128
The committee sought the advice
of the Attorney-General as to:
- whether a presumption against
bail except in special circumstances is a proportionate limitation on the right
to liberty;
- whether, having regard to Griffiths
v Australia, the El Salvador regulations and the Extradition Act provide an
opportunity for persons to review the lawfulness of their detention pending
extradition in accordance with article 9(4) of the ICCPR;
- whether detaining persons during
the extradition process without first testing the evidence against the person
is compatible with the right to liberty; and
- whether section 6 of the El
Salvador regulations, which increases the period in which a person must be
brought before a magistrate or eligible Federal Circuit Court judge after being
arrested from 45 days to 60 days, is a proportionate limitation on the right to
liberty.
Attorney-General's response
Presumption against bail
2.129
In response to whether a presumption against bail except in special
circumstances is a proportionate limitation on the right to liberty, the
Attorney-General's response states:
It is accepted international practice for a person to be held
in administrative detention pending extradition proceedings. The remand of the
person is not undertaken as a form of punishment and in no way relates to guilt
or innocence of any offence. The validity of Australia's process of remanding a
person during extradition proceedings has been confirmed by the High Court in Vasiljkovic
v Commonwealth [2006] HCA 40.
The presumption against bail for persons sought for
extradition is appropriate given the serious flight risk posed in extradition
matters and Australia's international obligations to secure the return of
alleged offenders to face justice. Unfortunately, reporting and other bail
conditions are not sufficient to prevent individuals who wish to evade
extradition from absconding. In extradition cases there is an increased risk of
persons absconding before they can be surrendered to the requesting foreign
country. If a person who has been remanded on bail absconds during extradition
proceedings, it jeopardises Australia's ability to extradite the person which
in turn would impede Australia's treaty obligations to return a person to the
requesting country. Ultimately, it can also lead to a state of impunity where a
person can disappear and continue to evade law enforcement authorities.
The High Court in United Mexican States v Cabal [2001] HCA
60 observed that to grant bail where a risk of flight exists would
jeopardise Australia's relationship with the country seeking extradition and
jeopardise our standing in the international community. Bail can be granted
where special circumstances exist. The courts have shown their willingness to
grant bail when these special circumstances arise.
For these reasons the Government considers the current
presumption that bail should only be granted in 'special circumstances' is
appropriate, given the significant flight risk posed by people subject to
extradition proceedings, and should be maintained. It is a reasonable and
proportionate limitation on the right to liberty, necessary to achieve the
legitimate objective of securing the return of alleged offenders to face
justice, noting that extradition offences are serious offences, including
terrorism, murder and transnational organised crimes.
2.130
Where a person poses a flight risk, refusing the grant of bail may be a
proportionate limitation on the right to liberty.[91] It is also acknowledged that the extradition offences are usually serious
offences. However, a presumption against bail fundamentally alters the starting
point of an inquiry as to the grant of bail. That is, unless there are special
circumstances, a person will be detained pending extradition. In this respect,
the High Court of Australia has held that to constitute 'special
circumstances', the matters relied upon 'need to be extraordinary and not
factors applicable to all defendants facing extradition',[92] and the general rule in extradition cases is that defendants are to be held in
custody whether or not their detention is necessary.[93] This is therefore a high threshold for a defendant to satisfy.[94]
2.131
As noted in the initial analysis, international human rights law
requires adequate individual justification for a person's continued detention
pending extradition in order to avoid a characterisation of arbitrariness.[95] To comply with article 9 of the ICCPR, states parties to the ICCPR must show
the individual poses such a threat that it cannot be addressed by alternative
measures, and that burden increases with the length of detention.[96] Concerns remain, therefore, that the presumption against bail and the high
threshold for establishing 'special circumstances' creates a risk that persons
may be deprived of their liberty in circumstances that may be incompatible with
article 9 of the ICCPR.
Access to review the lawfulness of
detention pending extradition
2.132
As to whether, having regard to Griffiths v Australia, the El
Salvador regulations and the Extradition Act provide an opportunity for persons
to review the lawfulness of their detention pending extradition in accordance
with article 9(4) of the ICCPR, the Attorney-General's response firstly notes
that following amendments to the Extradition Act in 2012, a person may make an
application for bail at each stage of the extradition process and the court may
grant bail if there are special circumstances. (In contrast, at the time Griffiths
v Australia was decided, a person could only make bail applications in the
early stages of extradition proceedings). The Attorney-General's response also
identifies other avenues of review, such as the right of review under section
39B of the Judiciary Act 1903, a writ of mandamus in the High Court and
a habeas corpus application. The response also reiterates that extradition is
an administrative legal process that would not be appropriate for the testing
of evidence by Australian courts, and therefore that the 'no evidence' model is
also compatible with the right to liberty.
2.133
However, while there are increased opportunities to apply for bail since
the Griffiths v Australia case was decided, the high threshold of
establishing 'special circumstances' remains the same. As a result, it is not
clear that further opportunities to apply for bail would necessarily meet the
requirement that review of detention, in its effects, be 'real and not merely
formal'.[97] Further, the avenues of judicial review identified by the Attorney-General were
also available at the time Griffiths v Australia was decided.[98] These avenues notwithstanding, the UN Human Rights Committee concluded that the
complainant was 'effectively precluded, by virtue of the State party's law and
practice, from taking effective proceedings before a court in order to obtain a
review of the lawfulness of his continuing detention, as the courts had no
power to review whether his detention continued to be lawful after a lapse of
time and to order his release on this basis'.[99]
Concerns therefore remain that there is a risk that a person detained pending
extradition may be deprived of their liberty in circumstances contrary to article
9(4) of the ICCPR.
The 60 day period before a person is brought before a
magistrate
2.134
In response to whether section 6 of the El Salvador regulations is a
proportionate limitation on the right to liberty, the response states:
The 60 day period is common to Australia's recent extradition
practice, and has been included for a broad range of countries, including for
example, the US, Canada, Mexico, Brazil, Croatia and others. This time period
takes into account the time required to comply with the requirements of the
Extradition Act, namely the complexities of securing the delivery of original
documents and translations thereof in the correct form from foreign countries
via the diplomatic channel, and the formal acceptance of the request by the
Attorney-General. During this 60 day period the person can make an application
for bail under section 15 of the Extradition Act, which provides that a person
who is arrested under an extradition arrest warrant must be brought as soon as
practicable before a magistrate or eligible Federal Circuit Court Judge in the
State or Territory in which the person is arrested, and the person may be
remanded on bail where there are special circumstances. As noted above, the
extradition framework has been designed to be proportionate to the legitimate
aim of securing the return of alleged offenders to face justice, noting that
extradition offences are serious offences, including terrorism, murder and
transnational organised crimes.
2.135
The information from the minister as to the 60 day period is useful in
assessing the proportionality of the limitation on the right to liberty.
However, for the reasons discussed above, the presumption against bail that
applies to persons subject to extradition (including under section 15 of the
Extradition Act) creates a risk that such detention may not be compatible with
article 9 of the ICCPR.
Committee response
2.136
The committee thanks the Attorney-General for his response and
has concluded its examination of this issue.
2.137
The committee considers that the presumption against bail and
limited opportunities for persons to review the lawfulness (as a matter of
international human rights law) of their detention pending extradition in the
El Salvador Regulations and the Extradition Act creates a risk that persons may
be deprived of their liberty in circumstances that may be incompatible with article
9 of the ICCPR.
2.138
The committee reiterates its previous comment that the
Extradition Act would benefit from a comprehensive review from the relevant
minister to assess its provisions against Australia's obligations under
international human rights law.
Compatibility of the measure with
the right to equality and non-discrimination
2.139
The right to equality and non-discrimination provides that everyone is
entitled to enjoy their rights without discrimination of any kind, and that all
people are equal before the law and entitled without discrimination to the
equal and non‑discriminatory protection of the law. The prohibited
grounds of discrimination are race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.
Under 'other status' the following have been held to qualify as prohibited
grounds: age, nationality, marital status, disability, place of residence
within a country and sexual orientation. The prohibited grounds of
discrimination are often described as 'personal attributes'.
2.140
As noted in the statement of compatibility, section 7 of the Extradition
Act promotes this right to the extent that it sets out grounds on which a
person might raise an objection to extradition, including grounds to object
where:
- surrender is sought for the purpose of prosecuting or punishing
the person on account of his or her race, sex, sexual orientation, religion,
nationality or political opinions; or
- the person may be prejudiced at his or her trial, or punished,
detained or restricted in his or her personal liberty, by reason of his or her
race, sex, sexual orientation, religion, nationality or political opinions.[100]
2.141
While these are important safeguards, it does not cover all of the
grounds that are considered 'prohibited grounds' of discrimination in the
international human rights conventions to which Australia is a party, including
discrimination on the basis of disability, language, opinions (other than political
opinions), social origin or marital status. The statement of compatibility
notes that the person subject to extradition 'has an opportunity to make
representations to the decision-maker regarding all of the protected attributes
in article 26 of the ICCPR',[101] however no information is provided in the statement of compatibility as to how
such matters would be taken into account. There does not appear to be any legal
requirement for a decision-maker to refuse to surrender a person where they may
be subject to discrimination on a prohibited ground that is not included in
section 7 of the Extradition Act.
2.142
The committee sought the advice
of the Attorney-General as to the compatibility of the El Salvador regulations
and the Extradition Act with the right to equality and non-discrimination. In
particular, the committee sought information as to the safeguards in place to
ensure:
- a person is not extradited where
their surrender is sought for the purpose of prosecuting or punishing the
person on account of her or his personal attribute that is protected under
article 26 of the ICCPR but not listed in section 7 of the Extradition Act; and
- a person is not extradited where
they may be prejudiced at her or his trial, or punished, detained or restricted
in her or his personal liberty, by reason of a personal attribute that is
protected under article 26 of the ICCPR but not listed in section 7 of the
Extradition Act.
Attorney-General's response
2.143
In relation to these matters, the Attorney-General's response provides
the following information:
The Extradition Act includes grounds for refusing surrender
if the person may be prejudiced by reason of his or her race, religion,
nationality, political opinions, sex or sexual orientation, or where
extradition is sought for the purpose of prosecuting or punishing the person on
account of any of these factors. This provides a broad basis to refuse
extradition where there may be adverse impacts because the person may be
discriminated against. The Attorney-General's broad discretion in paragraph
22(3)(f) of the Extradition Act to refuse surrender provides a sufficient basis
to refuse extradition in circumstances where there are other concerns about
discrimination against a person.
As the Committee points out in its report, the grounds in Article
26 of the ICCPR that are not contained in the Extradition Act are language,
colour, national or social origin, birth (although nationality and race are
covered), property, other opinion, or other status. Any concerns relating to
these additional grounds are more appropriately considered as part of the
Attorney-General's general discretion to refuse to extradite a person.
Including further grounds would significantly widen the scope for appeals of
extradition decisions. For example, 'other status' has no definite meaning and
the inclusion of this ground as an extradition objection under the Extradition
Act would make the list of discrimination grounds non-exhaustive. This would
likely generate significant litigation.
As noted above, I consider that the general discretion is an
appropriate and adequate safeguard.
2.144
In relation to the Attorney-General's statement that the general
discretion is an appropriate and adequate safeguard, for the reasons discussed
earlier at [2.83], a general legislative safeguard may not be sufficient for
the purposes of international human rights law.
2.145
While the Attorney-General's response states that the additional grounds
for discrimination listed in the ICCPR would be more appropriately considered
as part of the Attorney-General's general discretion, the basis for including
some categories and not others in section 7 of the Extradition Act remains
unclear. For example, while the Attorney-General notes that 'other status'
discrimination has no definite meaning, there are other prohibited grounds of
discrimination not listed as grounds for an extradition objection which have a
definite meaning under international human rights law, such as national or
social origin, property and birth.[102] Further, while the ground of 'other status' discrimination is not exhaustive,[103] there are several groups within that category that are recognised and defined
as a matter of international human rights law, including age, nationality, and
disability.[104] There are also attributes that fall within the 'other status' category under
international human rights law but which are explicitly listed as grounds for
an extradition objection in the Extradition Act, such as sexual orientation.[105] It is also not clear why the potential for litigation is of itself a
justification for including only a partial number of grounds for extradition
objections based on discrimination, when a larger number of prohibited grounds
are protected under international human rights law.
Committee response
2.146
The committee thanks the Attorney-General for his response and
has concluded its examination of this issue.
2.147
Based on the information provided, it is not possible to conclude
whether failing to include some of the prohibited grounds of discrimination in
article 26 of the ICCPR as bases for an extradition objection is compatible
with the right to equality and non-discrimination.
2.148
The committee reiterates its previous comment that the Extradition
Act would benefit from a comprehensive review from the relevant minister to
assess its provisions against Australia's obligations under international human
rights law.
Removing India from the list of extradition countries in the Extradition
(Commonwealth Countries) Regulations 2010
2.149
Item 1 of the Extradition Legislation Amendment (2017 Measure No. 1)
Regulations (Extradition Amendment Regulations) seeks to remove India from the
list of extradition countries in Schedule 1 in the Extradition (Commonwealth
Countries) Regulations 2010 (the Commonwealth Countries Regulations). This is
because extradition requests between Australia and India are now governed under
the Extradition (India) Regulations 2010 (the India Regulations) and the
Extradition Act, so the reference to India in the Commonwealth Countries
Regulations is no longer required.
Compatibility of the measure with
multiple rights
2.150
The human rights analysis discussed earlier in relation to the El
Salvador regulations applies equally to the Extradition Amendment Regulations.
However, it was noted that there are several additional safeguards included in
the India regulations that are not present in the El Salvador regulations and
which modify the operation of the Extradition Act, including:
- article 4(3)(d) of the bilateral extradition treaty with India
implemented domestically through the India Regulations (the India Extradition
Treaty) allows a request for extradition to be refused if surrender is likely
to have exceptionally serious consequences for the person whose extradition is
sought, including because of the person's age or state of health; and
-
if Australia receives a request under the India Extradition
Treaty, then supporting documentation to establish that the person sought has
committed the offence must be provided.[106] This is a departure from the 'no evidence' standard discussed above in relation
to the El Salvador regulations.
2.151
However, it was also noted that the Commonwealth Countries Regulations,
which will no longer apply to India as a result of the Extradition Amendment
Regulations, would have provided greater safeguards to protect human rights,
including:
- the standard of evidence required to support an extradition
request under the Commonwealth Countries Regulations is that of a 'prima facie'
case,[107] which provides a greater level of scrutiny than the 'no evidence' standard
under the Extradition Act; and
-
a requirement that the person must not be surrendered if the
Attorney-General is satisfied that it would be 'unjust, oppressive or too severe
a punishment' to surrender the person, such as where the offence is trivial or
where the accusation against the person was not made in good faith or in the
interests of justice.[108]
2.152
These safeguards in the Commonwealth Countries Regulations are relevant
to the determination of whether the human rights engaged and limited by the
Extradition Act are proportionate. In particular, the presence of the 'prima
facie' evidence test in the Commonwealth Countries Regulations would address
some of the concerns discussed earlier concerning the default 'no evidence'
standard in the Extradition Act in relation to the right to a fair trial and
fair hearing and the right to liberty. Similarly, the requirement that a person
must not be extradited if it would be 'unjust, oppressive or too severe a
punishment' may assist in determining whether the measure is compatible with
the right to a fair trial and fair hearing. By removing India from the scope of
the Commonwealth Countries Regulations, these safeguards are no longer available.
2.153
The committee sought the advice
of the Attorney-General as to the compatibility of the Extradition Legislation
Amendment (2017 Measure No.1) Regulations with human rights, having regard to
the matters discussed above in relation to the El Salvador Regulations, in
particular the:
- prohibition against torture,
cruel, inhuman and degrading treatment;
- right to life;
- right to a fair hearing and fair
trial;
- right to liberty; and
- right to equality and
non-discrimination.
2.154
The committee sought the advice
of the Attorney-General as to whether removing India from the list of
'extradition countries' in the Extradition (Commonwealth Countries) Regulations
2010 is a proportionate limitation on human rights, having regard to the
safeguards in that regulation that are not present in the Extradition Act or
the Extradition (India) Regulations 2010.
Attorney-General's response
2.155
In relation to the committee's inquiries set out above, the
Attorney-General refers to his comments in relation to the El Salvador
regulations and further states:
Evidence standard
The Committee identified the change from the 'prima facie'
standard to the 'no evidence' standard in relation to the material required to
support extradition. The 'no evidence' standard was addressed above in relation
to the Extradition (El Salvador) Regulations 2017.
Ground for refusal
The Committee identified that the express ground for refusal
in the Extradition (Commonwealth Countries) Regulations 2010 regarding 'unjust,
oppressive or too severe a punishment' is not expressly contained In the
Extradition (India) Regulations 2010. These matters are covered by the general
discretion to refuse surrender under paragraph 22(3)(f) of the Extradition Act.
The general discretion also provides a basis to refuse
extradition in circumstances where there are concerns about the person's access
to a fair trial. These matters are addressed above in relation to the
Extradition (El Salvador) Regulations 2017.
As noted above, I consider that the general discretion is an
appropriate and adequate safeguard.
2.156
For the reasons discussed earlier in relation to the El Salvador
regulations, it is not possible to conclude whether the 'no evidence' standard
in the Extradition Act is compatible with the right to a fair trial and fair
hearing. It is also not clear from the information provided whether the
requirement pursuant to the India Extradition Treaty that supporting
documentation to establish that the person sought has committed the offence
must be provided provides a different level of protection for persons being
extradited than the 'no evidence' standard in the Extradition Act. However, the
different approaches of requiring supporting documentation to establish that
the person sought has committed the offence in the India Extradition Treaty and
the 'prima facie' case requirement in the Commonwealth Countries Regulations
supports the view that there are different approaches to this issue, and that
the provisions of the Extradition Act would benefit from a comprehensive review
for compatibility with international human rights law.
2.157
In relation to the Attorney-General's response that the general
discretion in section 22(3)(f) would cover circumstances where it would be
'unjust, oppressive or too severe a punishment' to extradite a person, for the
reasons discussed above, a general legislative discretion may not be a
sufficient safeguard for the purposes of international human rights law.
Committee response
2.158
Noting the human rights concerns raised in the preceding
analysis, the committee thanks the Attorney-General for his response and has
concluded its examination of this issue.
2.159
Based on the information provided, it is not possible to conclude
whether removing India from the list of extradition countries in Schedule 1 in
the Extradition (Commonwealth Countries) Regulations 2010 is compatible with
human rights.
2.160
The committee reiterates its previous comment that the
Extradition Act would benefit from a comprehensive review from the relevant
minister to assess its provisions against Australia's obligations under
international human rights law.
Amendments to reflect changes made to the Convention on the Physical
Protection of Nuclear Material 1979
2.161
Items 2, 3 and 4 of the Extradition Amendment Regulations also seek to
amend the Extradition (Physical Protection of Nuclear Materials) Regulations
1988 (the Nuclear Materials Regulations) and the Extradition Regulations 1988
to reflect amendments made to the Convention on the Physical Protection of
Nuclear Material (the Nuclear Material Convention). That convention relevantly
requires states parties to provide extradition and mutual assistance to
facilitate the enforcement of a series of offences relating to the protection,
storage and transportation of nuclear material. Amendments to that convention
were made by the Amendment to the Convention on the Physical Protection of
Nuclear Material (the Amended Nuclear Material Convention), which expands the
list of offences for which signatories may request a person's extradition. The
Amended Nuclear Material Convention also requires signatories not to regard
offences committed under that convention as a 'political offence' when
considering a request for extradition or mutual assistance.[109] As a consequence, a request for extradition or for mutual legal assistance
based on an offence under the Nuclear Material Convention (as amended by the
Amended Nuclear Material Convention) cannot be refused on the ground that it is
a political offence.
Compatibility of the measure with
multiple rights
2.162
The effect of the amendments introduced relating to the Amended Nuclear
Material Convention in the Extradition Amendment Regulations is to expand the
operation of the Extradition Act to include a broader range of offences, and to
remove offences under the Nuclear Material Convention (as amended by the
Amended Nuclear Material Convention) from the scope of the 'political offence'
extradition objection. As a consequence, the human rights analysis discussed
above in relation to the El Salvador regulations applies equally to these
amendments.
2.163
As noted in the statement of compatibility, there are some safeguards
contained in the Nuclear Material Convention (as amended by the Amended Nuclear
Material Convention) that are incorporated into Australian law through the
Nuclear Materials Regulations that may assist in determining the
proportionality of the limitations on human rights, including:
- article 11B of the Amended Nuclear Material Convention provides
that nothing in the convention shall be interpreted as an obligation to
extradite where the extraditing state has substantial grounds for believing
that the request for extradition for one of the offences under the convention
'has been made for the purpose of prosecuting or punishing a person on account
of that person’s race, religion, nationality, ethnic origin or political
opinion or that compliance with the request would cause prejudice to that
person’s position for any of these reasons'; and
- article 12 of the Nuclear Material Convention provides that any
persons in relation to whom proceedings are being carried out in connection
with the offences in the convention 'shall be guaranteed fair treatment at all
stages of the proceedings'.
2.164
However, the initial analysis stated that concerns remain in relation to
the human rights compatibility of the Extradition Amendment Regulations for the
same reasons as those outlined above in relation to the El Salvador
Regulations. For example, it was noted that the 'no evidence' standard applies
in relation to these amendments. While the statement of compatibility states
that the 'prima facie' standard is not required because extradition is not a
criminal process,[110] the statement of compatibility does not specifically address the concerns
raised above that the 'no evidence' standard may not provide a sufficient
safeguard to ensure that extradition of persons occurs in a manner that is
compatible with the right to a fair hearing and fair trial or right to liberty.
2.165
The committee sought the advice
of the Attorney-General as to the compatibility of items 2 and 3 of the Extradition
Legislation Amendment (2017 Measure No.1) Regulations with human rights having
regard to the matters discussed above, in particular the:
- prohibition against torture,
cruel, inhuman and degrading treatment;
- right to life;
-
right to a fair hearing and fair
trial;
-
right to liberty; and
- right to equality and
non-discrimination.
Attorney-General's response
2.166
The Attorney-General's response states that '[t]hese matters are
addressed above in relation to the Extradition (El Salvador) Regulations
2017'. The matters discussed above in relation to the El Salvador
regulations apply equally in the context of the amendments to the Nuclear
Material Regulations.
Committee response
2.167
Noting the human rights concerns raised in the preceding
analysis, the committee thanks the Attorney-General for his response and has
concluded its examination of this issue.
2.168
Based on the information provided, it is not possible to conclude
whether items 2 and 3 of the Extradition Legislation Amendment (2017 Measure
No.1) Regulations are compatible with human rights.
2.169
The committee reiterates its previous comment that the
Extradition Act would benefit from a comprehensive review from the relevant
minister to assess its provisions against Australia's obligations under
international human rights law.
Identity-matching Services Bill 2018
Australian Passports Amendment (Identity-matching Services) Bill 2018
Purpose |
This bill seeks to
facilitate the exchange of identity information between Commonwealth, state,
local and territory governments and certain non-government entities by
providing explicit legal authority for the Department of Home Affairs to
collect, use and disclose identification information in order to operate
identity-matching services |
Portfolio |
Home Affairs; Foreign
Affairs and Trade |
Introduced |
House of Representatives, 7
February 2018 |
Right |
Privacy (see Appendix 2) |
Previous report |
3 of 2018 |
Status |
Concluded examination |
Background
2.170
The committee first reported on these bills in its Report 3 of 2018,
and requested a response from the Minister for Home Affairs and the Minister
for Foreign Affairs by 11 April 2018.[111]
2.171
The Minister for Foreign Affairs' response to the committee's
inquiries was received on 11 April 2018 and the Minister for Home Affairs'
response was received on 30 April 2018. The responses are discussed below and reproduced
in full at Appendix 3.
2.172
The committee previously examined the instrument providing legislative
authority for the government to fund the National Facial Biometric Matching
Capability (the Capability) in its Report 9 of 2017 and its Report 11
of 2017.[112] The Capability facilitates the sharing and matching of facial images as well as
biometric information between agencies through a central interoperability hub
(the Hub) and the National Driver Licence Facial Recognition Solution (the
NDLFRS). In relation to this measure, the committee concluded that there was a
risk of incompatibility with the right to privacy through the use of the
existing laws as a basis for authorising the collection, use, disclosure and
retention of facial images. The committee stated that setting funding for the
Capability without new primary legislation which circumscribes the Capability's
operation raises serious concerns as to the adequacy of safeguards to ensure
that the measure is a proportionate limitation on the right to privacy.[113]
Facilitating facial and biometric data identity matching
2.173
The Identity-matching Services Bill 2018 (the Identity Matching Bill) provides
that the secretary of the Department of Home Affairs may develop, operate and
maintain the Hub and the NDLFRS.[114]
2.174
The Hub would facilitate the sharing and matching of facial images as
well as biometric information between government agencies by relaying
electronic communications.[115]
2.175
The NDLFRS will include a database of identification information from
state and territory authorities and will make driver licence facial images
available through the identity matching service described below at [2.177].[116]
2.176
The Identity Matching Bill provides an explicit legal basis to authorise
the Department of Home Affairs to collect, use and disclose 'identification
information' about an individual if it occurs through the Hub or the NDLFRS and
is for a range of specified purposes.[117] 'Identification information' is defined to include a person's name (current and
former); address (current and former); place and date of birth; current or
former sex, gender identity or intersex status; any information contained in a
driver's licence, passport or visa and a facial image of the person.[118]
2.177
As set out in the explanatory memorandum, the Hub and the NDLFRS will
support a range of identity matching services:
-
the Face Verification Service (FVS), which enables a facial image
and associated biographic details of a person to be compared on a one-to-one
basis against an image held on a specific government record for that same
individual;
- the Face Identification Service (FIS), which searches or matches
facial images on a one-to-many basis to help determine the identity of an
unknown person, or detect instances where a person may hold multiple fraudulent
identities;
- the One Person One Licence Service (OPOLS), which will allow
state and territory agencies to detect instances where a person may hold
multiple driver licences across jurisdictions;
-
the Facial Recognition Analysis Utility Service (FRAUS), which
will allow state and territory agencies to assess the accuracy and quality of
their data holdings; and
- the Identity Data Sharing Service (IDSS), which will allow for
the sharing of biometric identity information between Commonwealth, state and
territory agencies.[119]
2.178
The explanatory memorandum states that all states and territories have
agreed to introduce or preserve legislation to support the collection, use and
disclosures of facial images and identity information via these identity
matching services.[120]
Compatibility of the measures with
the right to privacy
2.179
The right to privacy includes respect for informational privacy,
including the right to respect for private information, particularly the
storing, use and sharing of personal information; and the right to control the
dissemination of information about one's private life. As noted in the
committee's previous reports, the collection, use and disclosure of identity
information (including photographs) through the Hub and the NDLFRS engages and
limits the right to privacy.[121] The right to privacy may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, the measure must pursue a legitimate objective and be rationally
connected and proportionate to achieving that objective.
2.180
The statement of compatibility to the Identity Matching Bill acknowledges
that authorising the Department of Home Affairs to collect, use and disclose
information including personal and sensitive information engages and limits the
right to privacy but argues that this limitation is permissible.[122] The statement of compatibility states that the measure pursues a range of
objectives for each identity matching service (namely, the FVS, FIS, OPOLS, FRAUS
and IDSS). These include the detection and prevention of identity fraud, national
security, law enforcement, protective security, road safety and community
safety.[123] The initial human rights analysis assessed that these are likely to constitute
legitimate objectives for the purposes of international human rights law.
2.181
The statement of compatibility to the Identity Matching Bill indicates
that matching facial images, biometric data and identities through the Hub and
the NDLFRS is also likely to be rationally connected (that is, effective to
achieve) these objectives.
2.182
In relation to proportionality, each of the identity matching services
provide for differing degrees of use, access and disclosure of personal
information. However, there are general concerns in relation to proportionality
that underlie each of the services. As such, the services are discussed
collectively below. Where there are particular concerns in relation to a
specific identity matching service, these are also discussed further below.
2.183
To be proportionate, a limitation on the right to privacy should only be
as extensive as is strictly necessary to achieve its legitimate objective and
must be accompanied by appropriate safeguards. In relation to the scope of the
limitation on the right to privacy proposed under the Identity Matching Bill,
the statement of compatibility explains:
The Bill is designed to facilitate Home Affairs to provide
the identity-matching services, rather than authorise information-sharing by
other organisations participating in the services. The Bill has been developed
on the basis that other agencies or organisations participating in the
identity-matching services must have their own legal authority to do so, and
must comply with legislated privacy protections that apply to them.
This provides an additional layer of protection for the
identification information held within the NDLFRS or transmitted via the
interoperability hub, by ensuring that there is no automatic exemption from
privacy protections for users of the identity-matching services.[124]
2.184
The initial analysis stated that providing that agencies must have their
own authorisation to access data could assist to circumscribe the limitation on
the right to privacy. However, it appeared that, depending on the scope of the
authorisation provided to other agencies, facilitating access to identity
matching services via the Hub and NDLFRS still could be a very extensive
limitation on the right to privacy. In this respect, the scope provided for Commonwealth,
state and territory agencies to determine what information they will provide and
the circumstances in which information will be available through an
authorisation, does not fully address privacy concerns in relation to the
Identity Matching Bill.[125] This is because these agencies may not have adequate and effective safeguards
in place to ensure that the disclosure and use of information to and from the
Hub is a proportionate limit on the right to privacy.
2.185
More generally, the question of who can access facial images and other
biometric data, and in what circumstances, is relevant to whether the measure
is sufficiently circumscribed. The Identity Matching Bill sets out who can use
particular identity matching services through the Hub and the NDLFRS and in
some cases for what purposes. The extent of access differs depending on the
particular service. For example, the FIS can be used by a defined list of
commonwealth, state and territory agencies as well as those prescribed through
delegated legislation.[126] The initial analysis stated that restricting access to the FIS to specified
particular agencies would assist with the proportionality of the measure. This
is because the FIS is a more extensive limitation on the right to privacy in
that it allows agencies to identify an unknown person. However, it was noted
that in relation to the FIS, the minister is empowered to prescribe further
agencies by delegated legislation, such that it is unclear whether the measure
is sufficiently circumscribed. In relation to the FVS, providing an agency
otherwise has authorisation, the FVS may be used more broadly by an agency of
the Commonwealth, state or territory or local government authorities or
non-government entities that have been prescribed by regulation.[127] For the FVS and other identity matching services (the FRAUS, IDSS and OPOLs),
there would therefore appear to be a potentially broad range of agencies that
could access such services for a range of purposes.
2.186
Further, to the extent that current Australian privacy laws may apply to
the proposed facility to match facial images and other biometric data, it was
noted that there are questions as to whether the current laws would provide
adequate and effective safeguards for the purposes of international human
rights law. In particular, while facial images are a type of personal
information protected by the Australian Privacy Principles (APPs) and the Privacy
Act 1988 (Privacy Act),[128] compliance with the APPs and the Privacy Act does not necessarily
provide an adequate safeguard for the purposes of international human rights
law. This is because the APPs contain a number of exceptions to the prohibition
on use or disclosure of personal information, including (as noted by the
minister) where its use or disclosure is authorised under an Australian Law,[129] which
may be a broader exception than permitted in international human rights law.
There is also a general exemption in the APPs on the disclosure of personal
information for a secondary purpose where it is reasonably necessary for one or
more enforcement related activities conducted by, or on behalf of, an
enforcement body.[130] Therefore, in the absence of greater safeguards in the Identity Matching Bill,
the initial report stated that there are serious questions as to whether the
safeguards currently provided under Australian law would be sufficient for the
purposes of international human rights law.
2.187
The number and type of facial images and other biometric data that may
be collected, accessed, used and disclosed through the Hub and the NDLFRS is
also relevant to the proportionality of the limitation. The statement of
compatibility indicates the broad range of facial images and biometric
information which would be accessible or searchable through the Hub including
state and territory driver licences (via the NDLFRS). As the Hub will permit
access to driver licences, the personal information of a significant proportion
of the adult Australian population will be retained. As noted in the initial
analysis, a centralised facility for searching such large repositories of
facial images and biometric data is a very extensive limitation on the right to
privacy. The extent of the limitation heightens concerns as to whether the
measure is overly broad and insufficiently circumscribed. The initial analysis
stated that there is a serious question as to whether having databases of, and
facilitating access to, facial images of a very significant portion of the
population in case they are needed is the least rights restrictive approach to
achieving the stated objectives of the measure.
2.188
The statement of compatibility explains that the Identity Matching Bill restricts
the authorisation for the Department of Home Affairs to collect, use and
disclose information to a defined set of purposes, including providing an
identity matching service for the purpose of an identity or community
protection activity. Section 6 of the Identity Matching Bill defines 'identity
or community protection activities' as detecting identity fraud, law
enforcement activities, national security activities, protective security
activities, community safety activities, road safety activities and verifying
identity. Given these broad purposes, it appears that the range of information
that could be subject to collection, disclosure and use is extensive. As noted
above, driver licence photographs will be subject to the Hub and so the Hub
will include personal information of a large number of the adult population. As
such, it was unclear that restricting the Department of Home Affairs'
authorisation to these purposes is sufficient to ensure that the measure is
adequately circumscribed. Indeed, it appears that the measure may allow, for
example, photographs to be collected from a range of sources. It appears possible
that social media photographs could be used.
2.189 The scope of
historical facial images that will be subject to the Hub was also unclear. In
this respect, while the Identity Matching Bill contains a number of offence
provisions relating to unauthorised access and disclosure, there was still a
further concern about whether the Hub will provide adequate and effective
protection against misuse in respect of vulnerable groups. For example, it was
unclear the extent to which there are specific safeguards for survivors of
domestic or gender-based violence who may have changed their identity and to
protect against the risks of unintended consequences. If historical facial
images are available, it is also possible that it may reveal that a person has
undergone a change in gender identity, particularly as identification
information is defined to include current or former sex or gender identities.[131] This may also engage the right to equality and non-discrimination.
2.190
More generally, the initial analysis noted that international human
rights case law has raised concerns as to the compatibility of biometric data
retention programs with the right to privacy. In S and Marper v United
Kingdom, the European Court of Human Rights held that laws in the United
Kingdom that allowed for fingerprints, cellular samples and DNA profiles to be
indefinitely retained despite the affected persons being acquitted of offences
was incompatible with the right to privacy. The court expressed particular
concern about the 'indiscriminate and open-ended retention regime' which
applied the same retention policy to persons who had been convicted to those
who had been acquitted.[132] The court considered that the 'blanket and indiscriminate nature of the powers
of retention' failed to strike 'a fair balance between the competing public and
private interests'.[133]
2.191
Similarly, the United Kingdom (UK) Court of Appeal in Wood v
Commissioner of Police for the Metropolis,[134] concluded that the retention of photographs which had been taken by police
of a person in circumstances where the person had not committed any criminal
offence had a disproportionate impact on the right to privacy under the UK Human
Rights Act.[135] Collectively, these authorities suggest that the indiscriminate retention
of a person's data (including biometric information and photographs) may not be
a proportionate limitation on the right to privacy. In relation to accessing
biometric information, the UK courts have recently found that data retention
and access programs were inconsistent with the right to privacy in the context
of European Union (EU) law to the extent the objective pursued by that access
was not strictly limited solely to fighting serious crime and where access was
not subject to prior review by a court or independent administrative authority.[136] The interpretation of the human right to privacy under the European Convention
of Human Rights and the EU Charter of Fundamental Rights in those cases is
instructive in informing Australia's international human rights law obligations
in relation to the corresponding right to privacy under the ICCPR.
2.192
Further, some of the identity matching services under the Identity
Matching Bill appear to have a more extensive impact on the right to privacy
than others. For example, as noted above, the FIS would allow images of unknown
individuals to be searched and matched against government repositories of
facial images through the Hub. This particular identity matching service raises
specific concerns given the scope of its potential impact on the right to
privacy. It may not only reveal the identity of the individual but, depending
on the circumstances, may reveal who a person is in contact with, when and
where. For example, this could be the case with matching unidentified CCTV
images of people with facial images held by government agencies. This in turn
could potentially allow conclusions to be drawn about the person's political
opinions, sexual habits, religion or medical concerns. This also raised
concerns about whether such a measure could engage other human rights such as
the right to freedom of association and the right to freedom of expression. In
this context, it appeared that the FIS may not be the least rights restrictive
approach to achieve the stated objectives, particularly noting that the facial
images of the vast majority of adult Australians will be searchable through the
Hub.
2.193
The committee therefore requested the advice of the Minister for Home
Affairs as to whether the limitations on the right to privacy contained in the
Identity Matching Bill are reasonable and proportionate measures to achieve the
stated objective. This includes information in relation to:
- whether the provisions in the
Identity Matching Bill governing access to facial images and other biometric
data are sufficiently circumscribed for each of the identity matching services;
- whether the Privacy Act 1988 (Privacy Act) will apply to the operation of the Hub and, if so, whether it
will act as an adequate and effective safeguard noting the various exceptions
to the collection, use and disclosure of information under the Privacy Act;
- whether the Identity Matching
Bill contains adequate and effective safeguards for the purposes of
international human rights law;
- whether, in light of the number,
types and sources of facial images and other biometric data that may be
collected, accessed, used and disclosed through the Hub and the NDLFRS, these
measures are the least rights restrictive approach (including whether having
facial images of the vast majority of Australians searchable via the Hub is the
least rights restrictive approach and whether there are restrictions as to the
sources from which facial images may be collected);
-
whether the measures are a
proportionate limitation on the right to privacy with reference to the
potential relevance of international jurisprudence such as that outlined at [2.190]
– [2.191];
-
the extent to which historical
facial images will be subject to the Hub, and whether the Identity Matching
Bill provides adequate and effective protection against misuse and in respect
of vulnerable groups; and
-
in relation to the Face
Identification Service (FIS), whether allowing images of unknown individuals to
be searched and matched against government repositories of facial images
through the Hub is the least rights restrictive approach to achieve the stated
objective.
Minister for Home Affairs' response
Restrictions on and access to
identity matching services
2.194
In relation to whether the provisions governing access to facial images
and other biometric data are sufficiently circumscribed for each of the
identity matching services, the minister provides the following information:
The Bill contains a number of measures to appropriately
circumscribe access to data through each of the identity-matching services.
Firstly, the Bill does not authorise any agency other than
the Department of Home Affairs (Home Affairs) to collect, use or disclos[e]
identification information. The Bill is primarily intended to provide Home
Affairs with legal authority to operate the interoperability hub and to host
the National Driver Licence Facial Recognition Solution (NDLFRS).
The Bill does not seek to, nor does it, authorise other
agencies to share information through the services. Each agency's use of
information it receives through the services will be governed by its own legal
authority to collect, use and disclose the information for particular purposes,
including any legislated protections that apply to the agency under
Commonwealth, state or territory privacy legislation.
By taking this approach, the Bill specifically avoids
providing a blanket authorisation for all information-sharing that occurs
through the services. Where an agency seeks to obtain information from another
agency through the services, both the requesting agency and data-holding agency
will need to have a legal basis to share information with the other. This is no
different to current data-sharing arrangements, and ensures that the services
are only available to those agencies that have a legal basis to share
information through them under other legislation.
2.195
The minister's response further explains that each of the identity
matching services have specific restrictions. In relation to the FIS, the
minister's response explains, for example that:
...as noted by the Committee, the Face Identification Service
(FIS) will only be able to be used by a specific list of agencies set out in
the Bill. The Committee also noted that the Bill provides for the Minister to
prescribe further agencies by delegated legislation. However, subclause 8(3) of
the Bill restricts this power such that the Minister is only able to prescribe
a new authority for access to the FIS if the authority has one or more of the
functions that used to be functions of an authority already prescribed in the
Bill.
The purpose of subclause 8(3) is to restrict this power to
the extent that it is only available to cover situations where one of the
agencies already listed in the Bill changes names as a result of machinery of
government changes or for other reasons, or where their functions shift to a
different authority. As set out in the explanatory memorandum, this provision
is intended to supplement, rather than replace, the relevant provisions of the Acts
Interpretation Act 1901, which already provide for the continuation of
provisions naming specific government agencies when a machinery of government
change occurs, if those provisions do not apply.
As a result, any substantive change to the breadth or nature
of the agencies that have access to the FIS will need to be made by an
amendment to the Act, rather than through the making of a rule. This will help
to prevent ‘scope creep’ and will ensure appropriate Parliamentary oversight of
any substantive changes to FIS access.
Provision of the FIS is also restricted by paragraph 8(1)(b)
of the Bill, which provides that the comparison must be undertaken in the
course of an identity or community protection activity covered by subsections
6(2) to 6(6). This specifically excludes two of the identity and community
protection activities, namely road safety activities (subclause 6(7)),
and verifying identity (subclause 6(8)).
This restriction has been imposed in recognition of the
greater privacy implications of the FIS compared to the other identity-matching
services provided for by the Bill. This ensures the provision of the FIS is
appropriately circumscribed relative to its privacy impacts.
2.196
This further information indicates that, in respect of the FIS, the
minister's power to prescribe further agencies by delegated legislation is
sufficiently circumscribed. As set out above, restricting access to the FIS to
specified particular agencies and circumscribing some of the activities for which
comparison may be undertaken would assist with the proportionality of the
measure. The minister's response explains that the other services are limited
in different ways:
...The Facial Recognition Analysis Utility Service (FRAUS) and
the One-Person-One-Licence Service (OPOLS) are both restricted for use only by
agencies that provide data into the NDLFRS, which will primarily be state and
territory road agencies. This restriction is contained in the definitions of
the services:
- For the FRAUS, subparagraph 9(a)(i)
provides that a FRAUS relates to a request made by an authority of a State
or Territory that has supplied identification information to a database in the
NDLFRS.
- For the OPOLS, paragraph 12(b)
provides that the authority [that requests the service] issues government
identification documents of a particular kind and has supplied identification
information...to a database in the NDLFRS.
In addition, the services only enable comparison against data
in the NDLFRS – in the case of the FRAUS, only the data supplied by the same
authority making the request (i.e. against their own data), and in the case of
the OPOLS, only data relating to identification documents of the same type
(i.e. driver licences).
These services are primarily designed to assist road agencies
to manage their own data, and improve the integrity of their licence-issuing
processes by providing a secure and automated tool to check whether the
individual holds licences in other states and territories. As such, they are
appropriately circumscribed for these purposes.
The Identification Data Sharing Service (IDSS) is also
restricted by its definition, which limits its use to disclosures of
identification information between one authority of the Commonwealth or of a
State or a Territory to another authority of the Commonwealth or of a State or
a Territory (paragraph 11(1)(c)). Although this is still quite broad
compared to some of the other services, the IDSS can still only be used for the
identity and community protection activities, and agencies using the service
must have their own legal basis to share this information and comply with any
privacy or information protection laws that apply to them. As with the other
services, the Bill is not intended to provide new powers for agencies to share
information, but simply to facilitate more automated, auditable and secure
information-sharing through the interoperability hub.
2.197
The restrictions on access to these services are likely to assist with
the proportionality of the limitation. However, as acknowledged in the
minister's response many of the services may still be accessed by a large
number of entities.
2.198
Further, the minister's response argues that, although the FVS will be
available to the broadest number of entities including the private sector,
access to this service is also sufficiently circumscribed:
The last of the services, the Face Verification Service
(FVS), assists users to verify a claimed or known identity by comparing
information they have about an individual (often provided by the individual)
with a government record matching the same details. It will be available to the
broadest range of users, and is the only service that will be available to
non-government users. In most cases, the system will return a match/no match
response, rather than an image, and never more than one image.
Even so, the Bill contains provisions to ensure that the
provision of the service is appropriately circumscribed. In particular, a
number of conditions apply to local government and non-government use of the
FVS, as set out in subclause 7(3). These include that the verification of an
individual's identity is reasonably necessary for the functions or activities
of the entity, the individual has given consent for the use and disclosure of
their information to verify their identity, the entity resides or carries on
activities in Australia, and privacy protections equivalent to those provided
by the Privacy Act 1988 (Cth) apply to the entity.
2.199
As the FVS only allows access to more limited information for the
purposes of verifying a claimed identity this is likely to assist with the
proportionality of the measure. It is acknowledged that there are circumstances
where it may be necessary to verify a person's claimed identity including, on
occasion, by the private sector. The information provided by the minister
indicates that while the FVS will be available to the broadest range of users
including the private sector, there are a number of relevant safeguards as to
access and use which will also assist with the proportionality of the
limitation.
Application of the Privacy Act and
other safeguards
2.200
In relation to whether the Privacy Act will apply to the operation of
the Hub and, if so, whether it will act as an adequate and effective safeguard,
the minister's response states:
The Privacy Act applies to all 'APP Entities', which includes
Home Affairs. The operation of the interoperability hub by Home Affairs will
therefore be subject to the Privacy Act, and Home Affairs will manage the hub
consistently with its obligations under that Act.
The Privacy Act and the Australian Privacy Principles
contained therein provide the privacy architecture for Australian Government
entities. A key objective of the Privacy Act is to balance the protection of
privacy with the interests of entities in carrying out their lawful and
legitimate functions and activities. The adequacy and effectiveness of the
privacy safeguards contained in the Privacy Act, including the appropriateness
of the exceptions to restrictions on collection, use and disclosure of
information under the Privacy Act, have been considered by the Parliament in
the development of the Act and subsequent amendments to it. To the extent that
various exemptions in the Privacy Act may apply to the operation of the
interoperability hub, this is consistent with the application of the Privacy
Act across the many entities to which it applies.
2.201
It is relevant to the proportionality of the measure that the Privacy
Act will apply. However, questions remain as to whether the Privacy Act is an
adequate and effective safeguard for the purposes of ensuring the limitation on
the right to privacy is proportionate in the context of the measure under
international human rights law. In this respect, the fact that the Privacy Act
has previously been considered by parliament or that it applies across
government agencies does not fully address such issues. As noted in the initial
analysis, the APPs contain a number of exceptions to the prohibition on use or
disclosure of personal information for a secondary purpose. The particular
concern is that the breadth of some of these exceptions in the context of the
measure may facilitate the disclosure of personal information in circumstances
that are not compatible with the right to privacy.
2.202
For example, it is an exception to the prohibition on use or disclosure
of personal information for a secondary purpose under the APPs and Privacy Act if
the use or disclosure is authorised under another Australian law.[137] This
means that, for example, an agency could request and receive biometric
information through the FRAUS providing there was an Australian law (that is, a
Commonwealth, state or territory law) which authorised it. This would be
regardless of whether this other Australian law is a proportionate limit on the
right to privacy. Given that the measure facilitates the disclosure of personal
information through the Hub, the adequacy of safeguards governing access to
such information is an important issue from the perspective of whether the
measure itself is proportionate. As such, it would have been useful if the
minister's response had provided a more detailed and specific assessment of the
adequacy of the Privacy Act and APPs as safeguards in the context of the
measure.
2.203
The minister's response further states that there are additional privacy
safeguards, under the Intergovernmental Agreement on Identity Matching
Services (IGA) and the policy and administrative arrangements, which will:
...increase the overall adequacy and effectiveness of the
privacy framework governing the operation of the hub.
For example, under the IGA, the interoperability hub will not
retain any facial images or other identity information – it acts purely as a
router to transmit information between participating entities. The only data
that will be retained by the hub will be that required for auditing purposes.
This 'hub and spoke' design feature is consistent with the 'privacy by design'
approach to the identity-matching services, in that it avoids the need for the
Department to build a new database combining visa and citizenship, passport and
state and territory identification information in one place. Instead, the
interoperability hub simply provides an interface to connect end-users with
separate databases, enable them to make queries against each of the databases
separately but simultaneously. In turn, this minimises the amount of
information retained by Home Affairs, as it is not necessary for Home Affairs
to retain the information contained in the queries or responses routed through
the interoperability hub to and from the databases.
Furthermore, the interoperability hub will be subject to
independent penetration and vulnerability tests and security reviews, as well
as a range of stringent user access arrangements under a common Face Matching
Services Participation Agreement between all participating Commonwealth, state
and territory agencies, which will provide a legally binding framework for
participation in the services. This includes measures to protect privacy such
as a set number of user accounts per agency, user training and accountability
requirements, and regular auditing.
2.204
This information indicates that the design of the Hub may be such as to
address some of the concerns in relation to the unauthorised access of
information. Adequately addressing the potential for the misuse or unauthorised
use of personal information is relevant to the proportionality of the measure. However,
it is noted that administrative and policy safeguards are less stringent than
the protection of statutory processes and can be amended or removed at any
time. In this respect, the minister's response also notes that the bill creates
offences for the unauthorised use of information shared through the Hub as well
as reporting on the use of the services:
...clause 21 creates an offence for unauthorised recording or
disclosure of information by employees of Home Affairs (including secondees,
and contractors working on the NDLFRS or interoperability hub). This creates an
effective safeguard against unlawful interference with a person’s right to
privacy by people who may have access to identification information contained
in the NDLFRS or shared through the interoperability hub. Annual reporting on
use of the services and a requirement for a review to be commenced within 5
years provide further safeguards to ensure that any arbitrary or unlawful
interference is detected, and subject to public scrutiny.
The privacy safeguards in the Bill are also supported by a
range of further measures under the IGA, the Face Matching Services
Participation Agreement referred to above, and an NDLFRS Data-Hosting
Agreement, which will provide the framework for Home Affairs to host state and
territory data in the NDLFRS. These include annual audits of each participating
agency, strict access controls on users of the services, additional
authorisation requirements for the FIS, and privacy impact assessments.
2.205
These types of offences are a relevant safeguard in relation to the
unauthorised use of information and accordingly assist with the proportionality
of the measure.
Availability of less rights
restrictive alternatives
2.206
In relation to whether, in light of the number, types and sources of
facial images and other biometric data that may be collected, accessed, used
and disclosed through the Hub and the NDLFRS, the measures in the bill are the
least rights restrictive approach, the minister states:
The biometric face matching services that will be provided
through the interoperability hub and NDLFRS have been developed to address increasing
incidences, and sophistication of, identity misuse and fraud in Australia,
which has wide-ranging impacts for individual privacy, as well as law
enforcement and national security.
Under the Intergovernmental Agreement to a National
Identity Security Strategy agreed by the Council of Australian Governments
in 2007, the Commonwealth implemented a national Document Verification Service
(DVS). The DVS enables government and non-government users to compare the
claimed identity information of a customer or client with a government record
to verify their identity. The DVS matches key biographic details about the
individual and their Australia-issued identifying credentials (such as a
passport or driver licence), and provides a 'yes' or 'no' match response.
The DVS is currently used by around one hundred government
entities and seven hundred businesses, including all major finance and
telecommunications companies, with more than 30 million DVS transactions
processed in 2017. The DVS has a limited impact on individual privacy because
it only provides for one-to-one verification of a claimed identity, does not
return biographic information (users receive a 'yes'/'no' match result only),
and operates on a consent basis.
Whilst expanding use of the DVS has made it harder for
criminals to use fictitious identities, it is also creating incentives for them
to use documents in stolen identities that have genuine biographic details
(which will pass a DVS check) combined with a fraudulent photo. The
biographic-based DVS cannot detect these fraudulent identities, creating a need
for a different solution to tackle the growing use and sophistication of these
stolen identities.
The misuse of this personal information for criminal purposes
causes substantial harm to the economy and individuals each year. The Identity
Crime and Misuse in Australia Report 2016 prepared by the
Attorney-General's Department, in conjunction with the Australian Institute of
Criminology, indicated that identity crime is one of the most common and costly
crimes in Australia, impacting around 1 in 20 Australians every year (and
around 1 in 5 Australians throughout their lifetime), with an estimated annual
cost of over $2.2 billion.
In addition to financial losses, the consequences experienced
by victims of identity crime can include mental health impacts, wrongful
arrest, and significant emotional distress when attempting to restore a
compromised identity. In some cases where complete takeover of a victim’s
identity has occurred, the report indicates that it took victims over 200 hours
to obtain new credentials and resolve other issues associated with the
compromise of their identity.
Identity crime is also a key enabler of serious and organised
crime, including terrorism. Australians previously convicted of terrorism
related offences are known to have used fraudulent identities to purchase items
such as ammunition, chemicals that can be used to manufacture explosives, and
mobile phones to communicate anonymously to evade detection. An operation by
the joint Australian Federal Police and New South Wales Police Identity
Security Strike Team found that the fraudulent identities seized from just one
criminal syndicate were linked to 29 high profile criminals linked to historic
or ongoing illicit drug investigations; more than $7 million in losses
associated with fraud against individuals and financial institutions; and more
than $50 million in funds that were laundered offshore and were likely to be
proceeds of crime.
Current methods for verifying an identity or identifying an
individual using facial images can be slow, difficult to audit, and often
involve manual tasking between requesting agencies and data holding agencies.
In some cases, this can take several days or longer. Given the significant
impact that identity crime has on individuals and on the safety and security of
Australians more broadly, it is imperative that government agencies, and
private sector organisations (which operate at the frontline of day-to-day
identity verification), have access to the modern tools necessary to continue
to detect and prevent identity fraud, including using facial matching.
The face matching services that will be supported by the Bill
have been developed to balance the need to address this threat with the privacy
rights of individual Australians. The design of the services and the systems
that support them, including the 'hub-and-spoke' model of service delivery
through the interoperability hub, ensure that the services take the least
rights restrictive approach to addressing the serious issue of identity fraud.
By delivering the services through the establishment of a
central hub that connects to a number of separate databases, the Government has
specifically avoided a need to develop a single, central database of identification
information. In addition, although the Commonwealth is hosting a national
driver licence database (the NDLFRS) to centralise driver licence information
for the purpose of the services, under the IGA the Commonwealth will not have
direct access to view the data stored within the national database. State and
territory road agencies will provide their data into partitioned sections of
the database, and will retain control over access to that data.
Furthermore, users access the services on a query and response
basis, where a user submits query information into the hub interface, which is
then transmitted to the relevant database/s for matching with the results
returned to the user. This ensures that users only have access to the
information that is relevant to their query, and cannot go looking for
additional information directly within the databases. To provide a further
safeguard for the information transmitted through the hub, the hub itself does
not store any of the identification information contained in the query or the
response.
Alternative options to the provision of the face matching
services through the interoperability hub include a continuation of the status
quo, through which agencies that need to share information for identity
verification or identification purposes do so through existing manual methods
of data-sharing – via hard copy or email or other electronic transmission.
These ad-hoc methods vary amongst agencies, as does the security and
auditability of the transmissions. By providing a single tool through which
participating agencies can share identification information, the
interoperability hub will improve the consistency of data-sharing and enable it
to be more easily monitored, managed and audited.
The Government acknowledges that the face matching services
may cause privacy concerns for some individuals. However, the services and the
systems that support them have been designed to minimise those impacts and
improve the security and accountability of data-sharing between participating
agencies. The identification information being made available for matching
through the services is already held by government across multiple agencies,
and shared between agencies consistent with their legislative authorities. The
face matching services will enable agencies to use that information more
securely and effectively to protect Australians from national security and
criminal threats, identity crime, and other threats, in the least rights
restrictive way.
2.207
The minister's response provides useful information as to the extent of
the concerns regarding identity fraud and the operation of the current system
of identity verification. This information indicates that less rights
restrictive approaches have been tried but are subject to some constraints as
to their effectiveness. This includes constraints in relation to the management
and auditing of requests for sharing identification information.
2.208
However, while acknowledging the constraints in the current system,
concerns remain as to whether the approach proposed is the least rights
restrictive approach as required to be a proportionate limitation on the right
to privacy. This is because the scope of the identity matching services
envisaged by the bill is broad. It would facilitate the matching of facial
images of the majority of Australians across multiple government databases.
Sources of facial images
2.209
In relation to whether there are restrictions as to the sources from
which facial images may be collected, the minister states:
...The databases to which the interoperability hub will
initially connect will be the visa and citizenship database maintained by Home
Affairs, the passports database maintained by the Department of Foreign Affairs
and Trade, and the NDLFRS to be hosted by Home Affairs, containing replicated
state and territory licence information. Due to some states and territories
holding information about other licence types within the same databases as
their driver licence information (for example, marine licences or proof of age
cards), this information may also be replicated in the NDLFRS, where there is a
legal basis to do so.
Although the Bill does not explicitly restrict the connection
of other databases to the interoperability hub in future, the availability of
other data sources would, as with all aspects of the services, be subject to
the information-sharing authorisations of participating agencies. That is, an
agency providing access to its database through the hub would need the legal
authority to share the information with other agencies for the purposes for
which the face matching services are provided, and a participating agency
wishing to access the information would also need to have a legal basis to do
so.
Whether the hub could be connected to other databases in the
future will also be limited by the general purpose for which the face matching
services are being provided, and the practicalities of facial recognition,
which requires high quality images to achieve the most accurate matching
results. The services are intended to assist participating agencies to
determine the genuine identity of an individual, based on facial image
comparison. This is why the initial databases to which the hub will connect are
databases of identification information related to primary identification documents
containing facial images. These databases provide a reliable source of
identification information that can assist agencies to confirm a person's true
identity.
The nature of the processes for obtaining these
identification documents also ensures that the majority of facial photographs
in these databases are of sufficiently high quality for facial recognition
purposes. Facial recognition software relies heavily on the availability of
high quality, front-on, unobscured facial images, to enable the most accurate
matching. The integrity of the face matching services is therefore directly
related to the quality of the images in the databases used for matching. This
practical issue will likely limit the types of databases that may be connected
to the services in future.
2.210
The fact that the bill contains no express restrictions on the databases
that may be connected to the Hub, and the sources of facial images that such
databases may contain, raises concerns in relation to the proportionality of
the limitation imposed by the bill. In particular, it suggests that the scope
of private information that may be collected, used and disclosed through the
Hub may be wider than necessary to achieve the objectives of the Hub. Although
agencies require their own legal authority to share images through the Hub,
this does not necessarily address these concerns, as the relevant legal
authority to share images may not itself be sufficiently circumscribed. For
example, if an agency were to be using the Privacy Act and the APPs as a basis
for its authority to collect, use and share images through the Hub,[138] this could raise concerns in relation to the right to privacy. As noted above,
this is because, among other factors, the breadth of exemptions under the
Privacy Act for the use and disclosure of personal information for a secondary
purpose may permit such information to be disclosed in circumstances where it
may not constitute a proportionate limitation on the right to privacy.[139] As a result, there is a particular concern that measures in the bill, by
facilitating the sharing of such images or biometric details through the Hub,
may not be a proportionate limitation on the right to privacy. It does not
appear from the information provided that there are adequate and effective
safeguards in such circumstances.
2.211
Further, while it is noted that there are practical restrictions on
using lower quality facial images for the purposes of the Hub, this does not
fully address concerns as to the potential wide range of images that may be
subject to the services in the future. There are no express restrictions on the
inclusion in the future of images obtained from CCTV footage, surveillance
photographs, or social media.
Relevance of international
jurisprudence
2.212
As to whether the measures are a proportionate limitation on the right
to privacy, with reference to the potential relevance of international
jurisprudence such as that outlined at [1.21] – [1.22], the minister's response
states:
...the Bill contains a range of measures to ensure that the
provision of each of the face matching services is proportionate to the
legitimate objectives it pursues. Respectfully, the case law cited by the
Committee at [1.148] – [1.149] of its [Report 3 of 2018] does not alter
that fact.
A number of the cases referenced deal with the matter of
collection of biometric information directly from members of the public and the
retention of that information for law enforcement purposes. With reference to
these cases, it is important to note that the Bill does not seek to govern the
collection of identification information, including biometrics, from
individuals, nor the handling of identification information by agencies other
than the Department of Home Affairs (as the operator of the systems authorised
by the Bill).
The face matching services authorised by the Bill are simply
tools to enable agencies to more securely share and match information with each
other. Participating agencies must have their own legal basis to collect, use
and disclose the information both when using the services as a requesting
agency or an agency providing access to its data. This also applies to their
collection of the primary biometric information from an individual (such as the
collection of CCTV footage or passport photos).
As part of the existing legal framework that already applies
to the collection, use and disclosure of identification information by agencies
that will participate in the face matching services, agencies must comply with
data retention regimes that apply to them with respect to the storage and
destruction of that information. This will continue to be the case with respect
to identification information an agency obtains through using the services. The
Face Matching Services Participation Agreement (mentioned above) that will govern
participation in the services will reiterate this by requiring agencies to only
retain information for as long as they require it for the purpose for which it
was collected, or for the minimum period required by law.
The Committee also refers to European cases dealing with
retention of communications data, and its own comments on the
Telecommunications (Interception and Access) Amendment (Data Retention) Bill
2014. The issues raised in relation to metadata largely relate to concerns
about the retention of significant amounts of data not previously retained, and
the purposes for which it can be accessed.
As set out above, the Bill is not intended to deal with the
collection and retention of data from individuals – it provides for
information-sharing between agencies and organisations. The data intended to be
transmitted through the services is information that is already collected and
retained by participating agencies, and shared in accordance with their
legislative authority to do so. In this way, it is not analogous with the
establishment of large databases of new metadata not already retained...
The Committee also notes that the European cases relating to
communications data raise the issue of access to information without a
requirement for prior review by a court of independent administrative
authority. The Bill is not seeking to authorise participating agencies other
than Home Affairs to access identification information through the services.
Those agencies will need to have their own legal basis to do so. Many
participating agencies already have a legal basis to share this information, in
most cases without prior review by a court or independent administrative
authority. It is not appropriate for the Bill to impose this additional
requirement on participating agencies – this would be a matter for other
legislative processes relevant to those agencies, or their particular
jurisdictions.
For the reasons set out above, and in the Statement of
Compatibility with Human Rights, the measures in the Bill are a proportionate
limitation on the right to privacy notwithstanding the referenced
jurisprudence.
2.213
While the minister states that the bill is not intended to deal with the
collection and retention of data from individuals, an assessment of whether
facilitating information matching and sharing through the Hub is a
proportionate limitation on the right to privacy requires consideration of the
provisions of the bill in context. That is, an assessment of the
proportionality of the authorisation for information sharing between agencies
requires consideration of what information will be shared and to what extent. In
this respect, the jurisprudence referred to points to concerns in relation to
the right to privacy in circumstances where government retention of, or access
to, personal information is insufficiently circumscribed. This means that, as
noted above, unless the databases themselves and access to them are
sufficiently circumscribed there is a risk that the Hub will facilitate
information sharing in circumstances where it is not proportionate. Further, it
is noted that the bill specifically contemplates the development of the NDLFRS
which will contain the photographs and biometric details from state and
territory driver licences. The fact that this data was originally collected by
a state or territory government does not address human rights concerns about
its collection into a centralised database. Additionally, it does not address
concerns that such data may be searched and more easily accessed by a range of
agencies for a broad number of purposes. It is noted that the obligation to
ensure that legislation operates in compatibility with Australia's
international obligations rests with the Commonwealth, irrespective of whether
the relevant legislation or processes operate at the federal, state or
territory level.
Historical facial images and
vulnerable groups
2.214
In relation to the extent to which historical facial images will be
subject to the Hub, and whether the bill provides adequate and effective
protection against misuse and in respect of vulnerable groups, the minister
states:
Historical facial images may be contained in databases to
which the hub connects. However, specific safeguards exist to protect people
with legally assumed or protected identities, and the nature of the services
will also limit the risk of revealing a former identity in many cases.
The Bill provides specifically for Home Affairs to share
information for the purposes of protecting individuals with legally assumed or
protected identities. This will help to protect individuals who have been
issued with an assumed or protected identity by an authorised Commonwealth,
state or territory agency, from being inadvertently identified. Data about
these individuals contained in each database connected to the interoperability
hub is sanitised directly by the agencies responsible for the assumed/protected
identity prior to agencies having access to the database through the FIS (which
allows for identification of individuals without knowing their name).
In relation to other vulnerable groups that may have changed
their identities but do not have a legally assumed or protected identity, the
structure of the services will help to prevent their former identities from
being revealed in most circumstances. For example, the most widely available
service, the FVS, only provides for one-to-one verification of an identity. In
order to receive a match, the user will need to provide biographic details
about the individual (such as their name and date of birth), which will then be
checked against one or more databases and results only returned if the
biographic details match a record in the database. Although some databases may
contain, and return, known alias information, this will only be returned to
certain users with a need for that information (such as police) based on their
user access arrangements.
Access to the FIS, which allows for identification of an
unknown individual, is much more restricted to protect the privacy of
individuals whose details may be returned because of a possible facial match
with a person of interest. Only a prescribed set of law enforcement, national
security and anti-corruption agencies will have access to this service, and
within those agencies access will also be restricted to users with a need to
use it and training in facial recognition. This will help to ensure that if an
individual’s former identity is revealed through these services, only those
with a strict need to know that information will have access to it. Other
strict access controls on the FIS, including a requirement to enter the
particular purpose for which it is being used in each instance, will help to
prevent any misuse of the service to identify a person other than for the activities
provided for by the Bill.
Under the Face Matching Services Participation Agreement, FIS
access is also subject to additional supervision and authorisation
requirements. All users of the FIS must be monitored by a supervising officer
when using the service. In addition, a more senior authorising officer (at
Australian Public Service Executive Level 2/Director level or equivalent) must
approve certain FIS requests, including all queries for community safety
activities, queries relating to a person under the age of 18 years, and queries
to identify witnesses to a crime.
In addition, the NDLFRS, which is the only database being
built specifically for use in these services, is designed only to rely on the
most recent image of an individual for facial matching. In addition, this data
will be updated daily through direct connections between the NDLFRS and the
state and territory databases from which the data is drawn, to ensure that the
images being used for matching are the most up-to-date.
These controls provide adequate and effective protection for
vulnerable groups by ensuring that only those with a need to identify an
individual for specific activities will have access to identification
information through the services. Although it may be possible that the results
of a query may reveal sensitive information about an individual, it is not
possible to entirely avoid this without undermining the purpose for which the
services have been developed, which is to assist with identifying and verifying
the identity of individuals. The Bill, and the design of the services that will
be facilitated by it, puts in place a regime of strict controls and tiered
safeguards that appropriately balance the need to protect vulnerable groups
with the effectiveness of the services as a tool for identity resolution.
2.215
As such, the minister's response outlines a range of legislative and
operational safeguards to assist to protect the identity of vulnerable groups.
In this respect, the content of the Face Matching Services Participation
Agreement is likely to be of relevance to the proportionality of the measure.
It is noted that while the Face Matching Services Participation Agreement has
been relied upon as a safeguard in the minister's response, a copy of this
agreement has not been provided to the committee. It is difficult to assess
whether the Face Matching Services Participation Agreement will provide an
adequate and effective safeguard without a copy of this agreement.
Proportionality of the FIS
2.216
In relation to the FIS and whether allowing images of unknown
individuals to be searched and matched against government repositories of
facial images through the Hub is the least rights restrictive approach to achieve
the stated objective, the minister states:
The FIS is designed to assist Australia's law enforcement,
national security and anticorruption agencies to identify unknown persons of
interest in the course of their identity fraud prevention and detection
activities, and their national security, law enforcement, protective security
and community safety activities. This could include, for example, identifying a
suspect from a still image taken from CCTV footage of an armed robbery,
identifying an individual suspected to be involved in terrorist activities or
in [a] siege situation, or determining if a person of interest is using
multiple fraudulent identities.
As detailed above, many of these agencies already share this
information, and can request matching against various databases. However, this
currently occurs on an ad-hoc basis which can be slow and difficult to audit.
The Bill does not seek to expand the legal basis on which these agencies are
authorised to share information with each other – they will still need to have
a separate legal basis to do so before using the services. The services provide
these agencies with a faster, secure tool for transmitting these requests to
multiple data sources at once and receiving the results as quickly as possible,
with a clear audit trail for accountability purposes.
In many law enforcement and national security scenarios, it
is imperative that a person of interest is identified quickly to prevent a new
or ongoing threat to the public. In the current environment, this is often not
possible, and the various different methods agencies use to share information
with each other are inefficient and make auditing and oversight difficult. By
providing agencies with a tool to help them resolve the identity of a person of
interest quickly, and in an auditable way, the services will help to ensure
that these agencies can operate effectively and continue to keep Australians
safe, whilst being accountable to the Australian public.
2.217
A measure which allows for the electronic matching of unknown
individuals against government repositories of data is a significant
restriction on human rights. There is potential that without sufficient
safeguards such tools could be used for wide scale monitoring or surveillance.
This would be a serious interference with a person's private life. The measure
may also potentially have implications for other human rights including the
right to freedom of assembly and right to equality and non-discrimination.
While reference is made to situations of need in the context of national
security or law enforcement, there is no express threshold of seriousness for
agencies to access these services under the bill where they are otherwise
legally authorised to do so. It means that, in the absence of specific
safeguards, facilitating access to the FIS may not be the least rights
restrictive approach.
Summary of analysis
2.218
In summary, the bill would facilitate the matching and sharing of facial
images and biometric data across government databases through the Hub. These
databases will contain the facial images and biographical details of the vast
majority of Australians. The minister's response outlines some mechanisms to
assist with the proportionality of the limitation imposed on the right to privacy.
This includes restricting access to more privacy intrusive services such as the
FIS to particular agencies, the design of the Hub, the operation of the Face
Matching Services Participation Agreement and offences for unauthorised
disclosure of information. These are important safeguards in relation to the
operation of the measure. However, there are concerns about whether these are
sufficient to ensure that the measure is a proportionate limitation on the
right to privacy. This is because there is reliance placed by the minister on
the fact that an agency will need to be otherwise authorised to collect, use
and disclose personal information. However, the particular concern here is that
if this authorisation is not sufficiently circumscribed there is a risk that
the Hub will facilitate information sharing in circumstances where it is not
proportionate.
Committee response
2.219
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.220
The minister's response has outlined a number of safeguards in
relation to the operation of the measure. However, the preceding analysis
indicates that there may be a risk of incompatibility with the right to privacy
where the Hub facilitates the sharing of information but the authorisation for
an agency to collect, use, share, or retain facial images or biographic
information is not sufficiently circumscribed.
2.221
It is noted that while the Face Matching Services Participation
Agreement has been relied upon as a safeguard in the minister's response a copy
of this agreement has not been provided to the committee. The committee will
write separately to the minster to request a copy of the Face Matching Services
Participation Agreement. It is difficult for the committee to conclude whether
the Face Matching Services Participation Agreement will provide an adequate and
effective safeguard without a copy of this agreement.
Department of Foreign Affairs and Trade participation in identity matching
services
2.222
The Australian Passports Amendment (Identity-Matching Services) Bill
2018 (the Passport Amendment Bill) seeks to amend the Australian Passports
Act 2005 (Passports Act) to insert an additional purpose for the use and
disclosure of personal information. Specifically, the Passport Amendment Bill
would authorise the Department of Foreign Affairs and Trade (DFAT) to
participate in a specified service to share and match information relating to
the identity of a person.[140] It would also provide that the minister may arrange for the use of computer
programs to make decisions or exercise powers under the Passports Act.[141]
Compatibility of the measure with
the right to privacy
2.223
Permitting the minister to authorise DFAT to participate in the identity
matching services and thereby share and match identity information, engages and
limits the right to privacy. According to the statement of compatibility, the
types of information to be disclosed and matched include biographic details
such as names, dates of birth and gender as well as facial images.[142]
2.224
The statement of compatibility acknowledges that the measure engages and
limits human rights but argues that this limitation is permissible.[143] It argues that the measure is 'pursuing the legitimate objective of making fast
and secure identity verification available to support a range of identity-check
processes'.[144] The initial analysis stated that this would appear to be a description of the
process the measure will facilitate rather than an explanation of why this
process pursues a legitimate objective for the purposes of international human
rights law. For a limitation on a right to seek to achieve a legitimate
objective, it must be demonstrated that the objective is one that addresses an
area of public or social concern that is pressing and substantial enough to
warrant limiting the right. In this respect, the statement of compatibility
goes on to state the services will provide a tool in support of the legitimate
objective of 'combatting identity crime and supporting national security, law
enforcement and community safety'.[145] As set out above, these are likely to be legitimate objectives for the purposes
of international human rights law. It also appears that the measure is
rationally connected to these objectives.
2.225
However, as outlined above at [2.182]-[2.192], there are serious
questions about the proportionality of the limitation the identity matching
services impose on the right to privacy. These concerns apply equally in
relation to DFAT sharing and matching personal information through such
services.
2.226
Additionally, the measure will authorise the sharing and matching of DFAT's
repositories of personal information including passport photographs and
biographic information. This means that the photographs and biometric data of a
significant proportion of the population including children will be subject to
the identity matching services through the Hub. As noted in the initial
analysis, there is a serious question as to whether having databases of, and
facilitating access to, facial images of a very significant portion of the
population in case they are needed is the least rights restrictive approach to
achieving the stated objectives of the measure.
2.227
Beyond stating that there will be policy and administrative safeguards,
the statement of compatibility provides limited information as to the nature of
any safeguards that will be in place with respect to DFAT sharing personal
information via the identity matching services. Accordingly, it was unclear
whether there are adequate and effective safeguards in place to ensure that the
limitation on human rights is proportionate or that the measure is sufficiently
circumscribed.
2.228
The committee therefore requested the advice of the Minister for Foreign
Affairs as to whether the limitations on the right to privacy imposed by the
measures in the Passport Amendment Bill are reasonable and proportionate to
achieve the stated objective. This includes information in relation to:
- whether the Privacy Act 1988 (Privacy Act) will apply to DFAT's disclosure of photographs and biographical
information and, if so, whether it will act as an adequate and effective
safeguard for the purposes of international human rights law noting the various
exceptions to the collection, use and disclosure of information under the
Privacy Act;
- whether the Passport Amendment
Bill contains adequate and effective safeguards and is sufficiently
circumscribed for the purposes of international human rights law;
- whether, in light of the number,
types and sources of facial images and other biometric data that may be shared
and matched, these measures represent the least rights restrictive approach to
achieving the stated objectives (including whether having facial images of the
vast majority of Australians searchable via the identity matching services is
the least rights restrictive approach);
- whether the measure is a
proportionate limitation on the right to privacy with reference to the
potential relevance of international jurisprudence such as that outlined at [2.190]-[2.191];
- the extent to which DFAT's
historical facial images will be subject to the identity matching services, and
whether the Passport Amendment Bill or other Australian laws provide adequate
and effective protection against misuse and in respect of vulnerable groups;
and
- in relation to the Face
Identification Service (FIS), whether allowing images of unknown individuals to
be searched and matched against DFAT facial images through the Hub is the least
rights restrictive approach to achieve the stated objective.
Minister for Foreign Affairs and Trade's response
2.229
The minister's response confirms that DFAT's disclosure of photographs
and biographical information will be subject to the Privacy Act. The application
of the Privacy Act is relevant to the proportionality of the limitation on the
right to privacy. This is because the Privacy Act may or may not provide a
relevant safeguard in the context of the measure.
2.230
Consistently with the Minister for Home Affair's response discussed
above, the response from the Minister for Foreign Affairs and trade argues the
'adequacy and effectiveness of the privacy safeguards contained in the Privacy
Act, including the appropriateness of the exemptions to restrictions on
collection, use and disclosure of information under the Privacy Act, have been
considered by the Parliament in the development of the Act and subsequent
amendments to it'. In this respect, as noted above, the fact that the Privacy
Act has previously been considered by parliament or that it applies across
government agencies does not fully address whether the provisions of the
Privacy Act provide an adequate safeguard for the purposes of international
human rights law. As noted above and in the initial analysis, the APPs contain
a number of exceptions to the prohibition on use or disclosure of personal
information for a secondary purpose. The particular concern is that the breadth
of some of these exceptions in the context of the measure may facilitate the
disclosure of personal information in circumstances that are not compatible
with the right to privacy. Of relevance to the scope of such exemptions, the
minister's response states that:
The Privacy Act is not the only legislation relevant to the
collection, use and disclosure of photographs and biographical information by
DFAT in the passports context. Australian Privacy Principle 6.2(b) provides,
relevantly, that personal information (including sensitive information) may be
used and disclosed for a secondary purpose (to the purpose for which the
information was collected, in this case being the processing of an application
for an Australian travel document) where it is required or authorised by or
under an Australian law.
2.231
This means that, for example, an agency could request and receive
passport information such as biographic details and photographs providing there
was an Australian law (that is, a Commonwealth, state or territory law) which
authorised it. This would be regardless of whether this other Australian law is
a proportionate limit on the right to privacy. Accordingly, sharing information
in such circumstances may not be a proportionate limit on the right to privacy.
2.232
Further, the response does not directly address whether the
authorisation provided to DFAT under the bill to participate in the identity
matching services could itself constitute such an exemption for the purposes of
the prohibition on disclosure for a secondary purpose under the APPs and
Privacy Act. That is, there is a question as to whether an agency, to which the
APPs apply, would be permitted to share photographs and biographical
information with DFAT because it is 'authorised by or under' the bill. In this
respect, the minister's response explains states that:
The Bill is not seeking to authorise participating agencies
to "access" DFAT's identification information through the services.
No broad "access" will be possible under the services that is not
consistent with the hub and spoke model under which participating data holding agencies
maintain control over their data holdings. Rather, a request for disclosure of
certain information will be made to DFAT by a requesting agency and DFAT will
either disclose that information or not pursuant to pre-agreed conditions.
Those agencies requesting information from DFAT will need to have their own
legal basis to collect information that DFAT discloses to it. Most (if not all)
participating agencies already have a legal basis to collect this information
from DFAT, in most cases without prior review by a court or independent
administrative authority...
2.233
This suggests that the bill is not intended to authorise disclosure for
the purposes of the Privacy Act. It would have been useful to the committee's
analysis if questions regarding the interaction between the bill and the
Privacy Act had been more fully explored in the minister's response.
2.234
As to whether the Passport Amendment Bill otherwise contains adequate
and effective safeguards and is sufficiently circumscribed for the purposes of
international human rights law, the minister's response provides the following
information:
The Australian Passports Act 2005 (Cth) and Australian
Passports Determination 2015 (Cth) relevantly provide the primary
legislative framework for the collection, use and disclosure of
passport-related personal information and sensitive information. The Australian
Passports Act 2005 (Cth) and its related Australian Passports Determination
2015 (Cth) set out various permitted collections, uses and disclosures of
personal information and sensitive information in the passports context and
already provide a legal basis, although not sufficiently workable, for most of
the types of disclosures envisaged by DFAT's participation in the biometric
face matching services. The primary intention of the Bill is to augment into
one, workable, comprehensive legal basis the various existing, but fragmented,
legal bases that currently exist to permit disclosures of passport-related
information (addressed below).
The Bill provides for DFAT's participation in
identity-matching services that will be subject to other privacy safeguards
under the Intergovernmental Agreement on Identity Matching Services (IGA). In
addition, the policy and administrative privacy safeguards, including
requirements for privacy impact assessments before agencies access the services
and compliance audits, will help to ensure the use of the services remains
proportionate to the need, and prevent any misuse of identification
information.
The principle governing these arrangements is that the
minimum necessary information is disclosed to meet the legitimate purpose of
the services. The IGA provides that strict privacy controls, accountability and
transparency must apply to all the services. Within this framework,
data-holding agencies retain discretion to determine specific purposes for
which, entities to which, and other circumstances under which, they make their
data available through the services.
These and other privacy, accountability and transparency
measures provide appropriate safeguards against unnecessary impositions on the
right to privacy as a result of the Minister making Australian travel document
data available for all the purposes of, and by the automated means intrinsic
to, the services.
The Privacy Act, the Australian Passports Act 2005 (Cth) and the Australian Passports Determination 2015 (Cth) already
provide various legal bases to cover DFAT's disclosures of passport-related
personal information and sensitive information to agencies and organisations
participating in the biometric face matching services. However, legal
complexities inherent to applying various existing legal bases in the context
of the biometric face matching services (including the diverse nature of
participating organisations and the multiple purposes for disclosure) means the
only practical way for DFAT to participate in the biometric face matching
services as a data holding agency is to augment the various existing legal
bases for disclosure into a single, comprehensive legal basis for disclosure
for the purposes of participating in the biometric face matching services, as
is proposed by the Bill.
The Bill's provision for certain automated decision-making in
relation to passport-related information disclosures is intended to supplement
DFAT's current ability to make manual decisions to disclose personal or
sensitive information so as to allow DFAT's participation in the proposed
automated 'hub and spoke' model inherent to the biometric face matching
services. The Department of Home Affairs has outlined separately the automated
nature of the biometric face matching service's operation, and the reasons for
this.
The safeguards inherent to the use, collection and disclosure
of passport-related personal and sensitive information have already been
assessed as adequate and effective by parliament in the context of the Australian
Passports Act 2005 (Cth) and its related Australian Passports Determination
2015 (Cth). The Bill augments the existing legal framework. As such, those
privacy safeguards already assessed as adequate and effective in the context of
disclosures of passport information will continue to be adequate and effective.
2.235
The minister's response outlines some relevant safeguards. However, it
is noted that the response does not specifically assess whether the use,
collection and disclosure of information under existing laws imposes a
proportionate limitation on human rights. An assessment of the proportionality of
DFAT's participation requires consideration of what information will be shared
through the Hub and to what extent. For example, if the initial collection of
personal information was not proportionate then the sharing of such information
may not be proportionate either. In this respect, the Australian Passports
Act 2005 was legislated prior to the establishment of the committee, and
for that reason, the scheme has never been required to be subject to a
foundational human rights compatibility assessment in accordance with the terms
of the Human Rights (Parliamentary Scrutiny) Act 2011. Accordingly, it
is unclear on what basis the minister is making the claim that 'those privacy
safeguards already assessed as adequate and effective in the context of
disclosures of passport information will continue to be adequate and
effective.' It is noted that merely because parliament considered and passed
particular legislation does not mean that it necessarily complies with
Australia's obligations under international human rights law.
2.236
Consistent with the response from the Minister for Home Affairs
discussed above, the foreign minister's response provides information as to the
scope of concerns regarding identity fraud and the operation of the current
system of identity verification. As noted above, this information indicates
that less rights restrictive approaches have been tried but are subject to some
constraints as to their effectiveness. This includes constraints in relation to
the management and auditing of requests for sharing identification information.
However, while acknowledging the constraints in the current system, there are
still some concerns as to whether the approach proposed is the least rights
restrictive approach as required to be a proportionate limitation on the right
to privacy. This is because the scope of the identity matching services
envisaged by the bill is very broad. Specifically, DFAT's participation in the
services, by including passport information, would allow for the matching of the
facial images of a significant number of Australians.[146]
2.237
In relation to whether the measure is a proportionate limitation on the
right to privacy with reference to the potential relevance of international
jurisprudence outlined at [2.190]-[2.191], the minister's response states:
...Respectfully, the case law cited by the Committee at [1.148]
- [1.149] of its Report does not alter that fact.
A number of the cases referenced deal with the matter of
collection of biometric information directly from members of the public and the
retention of that information for law enforcement purposes. The
identity-matching services that the Bill allows DFAT to participate in are
simply tools to enable agencies to more securely disclose (and collect)
information to each other.
As part of the existing legal framework that already applies
to the collection, use and disclosure of identification information in the
passport context, DFAT will still have to comply with data retention regimes
that apply to it with respect to the storage and destruction of that
information.
Furthermore, the services will be subject to a range of
stringent user access arrangements under a common Face Matching Services
Participation Agreement between all participating Commonwealth, state and
territory agencies, which will provide a legally binding framework for
participation. This will include, inter alia, requiring agencies to only
retain information for as long as they require it for the purpose for which it
was collected, or for the minimum period required by law.
The Committee also refers to European cases dealing with
retention of communications data, and its own comments on the Telecommunications
(Interception and Access) Amendment (Data Retention) Bill 2014. The issues
raised in relation to metadata largely relate to concerns about the retention
of significant amounts of data not previously retained, and the purposes for
which it can be accessed.
As set out above, the Bill is not intended to deal with the
collection and retention of data from individuals - it provides for
information-sharing between DFAT and other participating agencies. The data to
be transmitted through the services is information that DFAT will have already collected
from individuals with their consent and retained. In this way, the services are
not analogous with the establishment of large databases of new metadata not
already retained.
As each data holding agency, including DFAT, will retain
control over the data it holds (including ensuring adequately [sic] information
security measures are in place pursuant to Australian Privacy Principle 11), no
new data mining or metadata issues should arise other than those which already
exist in relation to DFAT's collection, use and disclosure of passport-related
information under existing legal authority.
The Committee also notes that the European cases relating to
communications data raise the issue of access to information without a
requirement for prior review by a court of independent administrative
authority. The Bill is not seeking to authorise participating agencies to
"access" DFAT's identification information through the services. No
broad "access" will be possible under the services that is not
consistent with the hub and spoke model under which participating data holding
agencies maintain control over their data holdings. Rather, a request for
disclosure of certain information will be made to DFAT by a requesting agency
and DFAT will either disclose that information or not pursuant to pre-agreed
conditions. Those agencies requesting information from DFAT will need to have their
own legal basis to collect information that DFAT discloses to it. Most (if not
all) participating agencies already have a legal basis to collect this
information from DFAT, in most cases without prior review by a court or
independent administrative authority. It is not appropriate for the Bill to
impose this additional requirement on participating agencies - this would be a
matter for other legislative processes relevant to those agencies, or their
particular jurisdictions.
2.238
While noting that the response outlines some safeguards, the
jurisprudence referred to points to concerns in relation to the right to
privacy in circumstances where government retention of, or access to, personal
information is insufficiently circumscribed. As noted above, the fact that
collection and retention of personal information already occurs does not
address whether these regimes are a proportionate limitation on the right to
privacy. Indeed, the measure in this bill would facilitate easier access to
DFAT's databases of passport information. Unless the databases themselves and
access to them are sufficiently circumscribed there is a risk that DFAT could share
passport information in circumstances where it is not proportionate.
2.239
In relation to the extent to which DFAT's historical facial images will
be subject to the identity matching services, the minister's response states
that 'acknowledging the importance of providing adequate and effective
protection against misuse and in respect of vulnerable groups, DFAT will only
provide access to individuals' most recent facial images through the services'.
This will assist with the proportionality of the limitation. The minister's
response further outlines a range of legislative and operational safeguards to
assist to protect the identity of vulnerable groups including the content of Face
Matching Services Participation Agreement.
2.240
In relation to the FIS and whether allowing images of unknown
individuals to be searched and matched against DFAT facial images through the
Hub is the least rights restrictive approach to achieve the stated objective,
the minister provides the following information:
The FIS is designed to assist Australia's law enforcement,
national security and anticorruption agencies to identify unknown persons of
interest in the course of their identity fraud prevention and detection
activities, and their national security, law enforcement, protective security and
community safety activities. This could include, for example, identifying a
suspect from a still image taken from CCTV footage of an armed robbery,
identifying an individual suspected to be involved in terrorist activities or
in siege situation, or determining if a person of interest is using multiple
fraudulent identities.
In recognition of the greater privacy implications of the
FIS, it will only be able to be used by a restricted and specific list of
agencies set out in the Department of Home Affairs' ldentity-Matching
Services Bill 2018. Any substantive change to the breadth or nature of the
agencies that have access to the FIS will need to be made by an amendment to
the Act, rather than through the making of a rule. This will help to prevent
'scope creep' and will ensure appropriate Parliamentary oversight of any substantive
changes to FIS access.
Many of these agencies already share this information, and
can request matching against various databases. However, this currently occurs
on an ad-hoc basis which can be slow and difficult to audit. DFAT's
participation in the identity-matching services will provide it with a faster,
secure tool for transmitting these requests to multiple data sources at once
and receiving the results as quickly as possible, with a clear audit trail for
accountability purposes.
ln many law enforcement and national security scenarios, it
is imperative that a person of interest is identified quickly to prevent a new
or ongoing threat to the public. ln the current environment, this is often not
possible, and the various different methods agencies use to share information
with each other are inefficient and make auditing and oversight difficult. By
providing agencies with a tool to help them resolve the identity of a person of
interest quickly, and in an auditable way, the services will help to ensure that
these agencies can operate effectively and continue to keep Australians safe,
whilst being accountable to the Australian public.
2.241
Restricting the agencies that may access more privacy intrusive services
such as the FIS is a relevant safeguard in relation to the proportionality of
the measure. However, it is noted that a measure which allows for the
electronic matching of unknown individuals against DFAT passport databases is
restrictive of human rights. While reference is made to situations of need in
the context of national security or law enforcement, there is no express
threshold of seriousness before an agency can use the FIS in circumstances
where they are otherwise legally authorised to do so. It means that, in the
absence of specific safeguards, sharing passport information may not be the
least rights restrictive approach.
2.242
In summary, the bill would authorise DFAT to participate in the identity
matching services which allow for the matching and sharing of DFAT's databases through
the Hub. These databases will contain the facial images and biographical
details of many Australians, including children. The minister's response
outlines some mechanisms to assist with the proportionality of the limitation
imposed on the right to privacy. This includes restricting access to more
privacy intrusive services such as the FIS to particular agencies, the design
of the Hub, the operation of the Face Matching Services Participation Agreement
and offences for unauthorised disclosure of information. These are important
safeguards in relation to the operation of the measure. However, as outlined
above, there are concerns about whether these are sufficient to ensure that
DFAT's participation in the services is a proportionate limitation on the right
to privacy. This is because there is reliance placed by the minister on the
fact that an agency will need to be otherwise authorised to collect, use and
disclose personal information. However, if this authorisation is not sufficiently
circumscribed there is a risk that the Hub will facilitate information sharing
in circumstances where it is not proportionate.
Committee response
2.243
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.244
The minister's response has outlined a number of safeguards in
relation to the operation of the measure. However, the preceding analysis
indicates that there may be a risk of incompatibility with the right to privacy
to the extent that DFAT's participation in the services facilitates the sharing
of its information in circumstances where the authorisation for an agency to
collect, use, share, or retain facial images or biographic information is not
sufficiently circumscribed.
2.245
The Australian Passports Act 2005 was legislated prior to
the establishment of the committee and has never been subject to a foundational
human rights compatibility assessment in accordance with the Human Rights
(Parliamentary Scrutiny) Act 2011. It may benefit from a foundational
review.
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 reports |
3 & 4 of 2018 |
Status |
Concluded examination |
Background
2.246
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.[147] The minister's response was received on 30 April 2018 and discussed in Report
4 of 2018.[148]
2.247
The committee requested a further response from the minister by 23
May 2018. A response from the Assistant Minister for Home Affairs was received
on
30 May 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
2.248
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.
2.249
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
2.250
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.
2.251
'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).[149] 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).[150]
2.252
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.
2.253
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.[151]
2.254
The statement of compatibility states that the instrument does not
engage any of the applicable rights or freedoms,[152] and so does not provide an assessment of whether the right to equality and
non-discrimination is engaged by the measure.
2.255
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.[153]
2.256
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'.[154] 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.[155]
2.257
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.
2.258
However, the initial analysis noted that the IELTS and the TOEFL iBT may
exceed those requirements necessary to enter tertiary study.[156] 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.
2.259
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.
2.260
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.[157]
2.261
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.[158] 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.
2.262
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
2.263
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.
2.264
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 [2.250]-[2.261]
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 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.
2.265
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,[159] 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.
2.266
The committee therefore restated 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).
Assistant minister's response
2.267
The assistant minister explains the importance of migration agents
having sufficient English language skills:
The Department seeks to ensure that the migration agent
industry is able to service a clientele that may have little or no English
language capability. The capacity of a migration agent to convey instructions
and information to and from the Department on behalf of a vulnerable client is
often critical to the outcome of the visa application.
The duties of migration agents include, not just the
completing of forms and the handling of funds on behalf of visa applicants, but
also interpretation of complex legislation and its application to the
circumstances of a particular applicant. Migration agents are also required to
provide clear advice and information, prepare detailed submissions and review
of visa applications provided for in the Migration Act 1958 (Cth).
2.268
Noting the potential vulnerabilities of clients and the type of work
performed, this information indicates that migration agents are likely to require
well-developed English language skills. As set out in the previous human rights
analysis, on this basis, the measure addresses the legitimate objective of
ensuring the clients of migration agents receive high standards of service as
well as conveying instructions to clients.
2.269
The assistant minister's response argues that requiring a person to
either complete the English-language proficiency test or have met residency and
education requirements in specified countries is rationally connected to its
stated objective:
The current legislative instrument states that if a person is
not in a class of persons specified, an English language proficiency exam is
required to be completed. In order for an individual to be exempt from sitting
the English language exam, the individual must have been resident in one of the
specified countries (Australia, New Zealand, United Kingdom, Republic of
Ireland, United States of America, Republic of South Africa or Canada) for the
duration of the specified schooling. This is similar to previous legislative
instruments introduced in 2012 (FR2012L01932 IMMI 12/097 and prior to that
F2012L01343 IMMI 12/035) which also included the specified class of persons.
The Department does not consider the specified class of
persons being exempt from undergoing the English language exam as unreasonable
or disproportionate. Requiring migration agent applicants who have not
completed educational requirements whilst being resident in the five specified
countries [Australia, New Zealand, United Kingdom, Republic of Ireland, United
States of America, Republic of South Africa or Canada] to complete the English
language exam, is rationally connected to the legitimate aim of ensuring
migration agents are able to convey instructions and information to, and from,
the Department on behalf of their clients.
The New Zealand Immigration Advisers Authority also requires
educational requirements to be delivered in the English language and completed
while applicants are living in the specified countries (New Zealand, Australia,
Canada, Ireland, UK and the US), in their Competency Standard 5.
Similarly, to Australia, English is the common language (ie
the majority of the population are native English speakers) in the USA, UK,
Canada, Ireland and New Zealand. According to publically available information
in 2015, 54 sovereign states and 27 non-sovereign entities had English as an official
language, however only six had English as the common language (Australia, USA,
UK, Canada, Ireland and New Zealand). A common language in any given country
gives prominence over other languages spoken inside the country by the people.
Often it is one that is spoken by the majority of the population of the country
(e.g. Australia, USA). Therefore it is considered by the Department that people
from the specified countries are more likely to meet the English language
requirement.
2.270
The information provided in the assistant minister's response indicates
there is a strong correlation between having been resident in, and completing
schooling in, a number of the specified countries and possessing requisite
English language skills. Put another way, individuals who have been resident in
and completed schooling in English in countries where English is the 'common
language' or is widely spoken will be likely to have significant English
language skills. However, the assistant minister's response does not specifically
address the circumstances of the Republic of South Africa, which is specified
under the instrument, and whether he also considers that English is the common
language in South Africa. Yet, on balance, in most circumstances, the
requirement of either having completed an English language test or satisfying
schooling in English and residency requirements in the specified
countries is likely to be rationally connected to the stated objective of the
measure.
2.271
In relation to the proportionality of the measure, the assistant
minister's response further explains, in his view, why residency and schooling
in specified countries are a reasonable substitute for having completed an
English language proficiency test:
The intended purpose of this requirement is to reduce the
unnecessary regulatory burden on migration agent applicants who were educated
in English in one of the specified countries whereby the need for them to
undertake English testing is unnecessary duplication. The Department's
recognition of English as a 'common language' in these countries and
acknowledgment that a level of education in English contributes to higher
English language proficiency, achieves a balance between the necessity of
migration advice standards assurance and reduction of regulatory burden.
The 2007-08 Review of Statutory Self-Regulation of the
Migration Advice Profession (the Review) recommended that English language
proficiency equivalent to an IELTS score of 7 should be the required level of
English proficiency for both new and repeat applicants for registration as a
migration agent (recommendation 16).
2.272
The assistant minister's response further explains that residency and
schooling in English in the specified countries shows that the individual
possesses a level of English equivalent to IELTS 7 and 'therefore does not need
to be subject to over regulation through English testing'. As such, the
assistant minister's response indicates that persons who are not educated in
Australia, or in another prescribed country, are not required to meet a 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 information addresses some of the concerns about the
proportionality of the measure and differential treatment.
2.273
In this respect, the assistant minister's response further states that
the Department 'relies on both the specified countries and the fact that
individual's education was conducted in English as a reliable assurance that
the potential migration agent will have English language proficiency'. It is
acknowledged that a criteria, which requires both residence in particular
countries where English is widely spoken and education in English, may
be capable of being reasonable and objective. However, in this respect, the
assistant minister's response has not provided sufficient information as to why
some English speaking countries have been specified and others have not. For
example, it is unclear why South Africa has been specified noting it is also
unclear whether it meets the minister's own criteria of being a country where
English is a 'common language'. It may be that there are other factors that
mean that the specification of the seven countries (as opposed to other
countries where English is widely spoken) is based on reasonable and objective
criteria. For example, an assessment may have been made about meeting certain
educational standards, literacy levels or the prominence of English in those
countries. As this kind of information has not been provided, it remains
unclear whether the requirements are based on reasonable and objective criteria.
Committee response
2.274
The committee thanks the assistant minister for his response and
has concluded its examination of this issue.
2.275
The measure may be capable of being based on reasonable and
objective criteria, noting that to qualify for an exemption from having to
complete an English proficiency test a person must have resided in a specified
country and have been educated in English in that country. However, it
is unclear from the information provided whether the specification of these
particular countries is based on reasonable and objective criteria. On this
basis, it is not possible to conclude that the measure is compatible with the
right to equality and non-discrimination.
Offshore Petroleum and Greenhouse Gas Storage Amendment (Miscellaneous
Amendments) Bill 2018
Purpose |
To transfer oversight for
offshore greenhouse gas storage environmental management from the minister to
the National Offshore Petroleum Safety and Environmental Management Authority
(NOPSEMA) |
Portfolio |
Industry, Innovation and
Science |
Introduced |
House of Representatives,
28 March 2018 |
Rights |
Presumption of innocence
(see Appendix 2) |
Previous report |
4 of 2017 |
Status |
Concluded examination |
Background
2.276
The committee first reported on the bill in its Report 4 of 2018,
and requested a response from the Minister for Resources and Northern Australia
by
23 May 2018.[160]
2.277
The minister's response to the committee's inquiries, received on 23
May, is discussed below and is reproduced in full at Appendix 3.
Reverse legal burden offences
2.278
The bill contains a number of offence provisions which contain
offence-specific defences:
- it is a defence to the offence of breaching a direction given by
NOPSEMA, if the defendant proves that they took all reasonable steps to comply
with the direction;[161] and
- it is a defence to the offence of refusing or failing to do
anything required by a 'well integrity law' if the defendant proves that it was
not practicable to do that thing because of an emergency prevailing at the
relevant time.[162]
2.279
In respect of each of these defences, the defendant bears a legal burden
of proof.[163] This means that the defendant rather than the prosecution must prove the
existence of the matters relevant to the defence on the balance of
probabilities.[164]
Compatibility of the measures with
the right to be presumed innocent
2.280
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).[165]
2.281
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.
2.282
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.
2.283
As noted in the initial human rights analysis, 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'.[166] However, it was unclear from the information provided why the offence provision
reverses the legal rather than merely the evidential burden of proof. This
raised 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.
2.284
The committee therefore requested 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.
Minister's response
2.285
The minister's response provides the following information on the
regulatory context of the measures:
The task of regulators of the offshore resources industry is
difficult given the remote location and high hazard nature of the industry's
key operations. For this reason, providing effective and comprehensive
compliance and enforcement tools to the regulator is vital in order to deliver
human health and safety and environmental protection outcomes. Furthermore and
of relevance in consideration of a human rights protection context, it is
regulation pertaining, by and large, to large multinational companies as
opposed to individuals. The companies who participate in this industry are well
resourced, sophisticated and voluntarily engaging in activities for profit.
2.286
Accordingly, the information provided in the minister's response
usefully clarifies that the offences will largely apply to corporations rather
than individuals. As international human rights law is concerned with the
impact of measures on individuals rather than corporations, this regulatory
context is relevant to the human rights compatibility of the reverse burden
offences.
2.287
The minister's response explains the proposed reverse burden offences in
the context of existing offences:
[The bill] contains a number of offence provisions which have
corresponding offence specific defences:
- it is a defence to the offence of
breaching a direction given by NOPSEMA, if the defendant proves that they took
all reasonable steps to comply with the direction (the breach of directions
defence); and
- it is a defence to the offence of
refusing or failing to do anything required by a 'well integrity law' if the
defendant proves that it was not practicable to do that thing because of an
emergency prevailing at the relevant time (the well integrity defence).
These defences operate as optional exceptions to the criminal
responsibility regime established under the Offshore Petroleum and
Greenhouse Gas Storage 2006 (the Act). Both of these defences are already
substantively contained in the Act:
- Breach of Directions Defence: The inclusion of the breach of directions defence in
the current Bill represents an expansion of an existing defence (section 584 of
the Act) to reflect new measures in the Bill relating to the transfer of
regulatory responsibility for greenhouse gas operations from the Minister to
NOPSEMA.
- Well Integrity Defence: The inclusion of the well integrity defence is a
mirrored application to a well integrity law of an existing defence for a
failure to comply with OHS (clause 92 of Schedule 3) and environmental
management laws (clause 18 of Schedule 2A). This is in connection with the
measure in the Bill to create a new Schedule 2B to provide a complete and
comprehensive suite of compliance powers relating to the well integrity
function, which was transferred to NOPSEMA in 2011.
2.288
In relation to the objectives of the measure, the minister's response
states:
The Act, in part, establishes a regulatory framework for the
management of remote and high hazard industry activities associated with
offshore resources exploration and production. These activities, if not
conducted properly, have the potential to result in serious injury or death
and/or extraordinary environmental harm. The robustness of the regulatory
regime, including an effective compliance and enforcement framework, is
critical to achieving this objective. The objective of both the breach of
directions defence and the well integrity defence assist in achieving the
objective of ensuring the safety of persons in the industry as well as the
protection of the environment. As such, the regulatory regime positively
engages with the right to life, and helps to protect other human rights which
would be negatively affected by significant environmental damage.
2.289
The objectives of ensuring the safety of persons in the industry and the
protection of the environment are likely to constitute legitimate objectives
for the purposes of international human rights law. As to how the measure is
effective to achieve the legitimate objectives, the minister's response states:
A direction issued by NOPSEMA is an enforcement tool designed
to achieve a very particular outcome, to direct the industry participant to
either do or refrain from doing something in order to deliver OHS,
environmental management or well integrity outcomes. Directions are not used
frequently — they are used in extraordinary circumstances, usually to deal with
a specific emergent risk that the regulations do not adequately cover, and
their application and use is taken very seriously. The defence in connection
with the offence of non-compliance with a direction allows an optional
exception; it is an opportunity for the defendant to prove that they took all
reasonable steps to comply with the direction. As a result, the measure is
effective in achieving the objectives of the Act.
Well integrity laws relate specifically to the regulatory
oversight of the structural integrity of wells, the management of which is seen
as posing the greatest risk to both OHS and the environment. A failure in well
integrity can result in the death of workers and widespread damage to the
environment, such as that recently seen in the Gulf of Mexico with the
explosion of the Macondo rig. Strict compliance with these laws is deemed
critical and a central tenet of the offshore regime. However, this defence
acknowledges and provides for an exception to strict compliance in emergency
circumstances. As a result, the measure is effective in achieving the
objectives of the Act.
2.290
This information indicates that the offence provisions as drafted are
likely to be effective to achieve (that is, rationally connected to) their
stated objectives.
2.291
In relation to whether the limitation is a reasonable and proportionate
measure to achieve the stated objective, the minister's response states:
Both of these defences are not related to issues essential to
culpability, but instead provide exceptions or an excuse for the conduct. In
addition, both defences relate to the serious potential consequences of
non-compliance (as outlined above — risks of serious injury or death and/or
major environmental consequences). Conduct resulting in the offence would, in
most circumstances, take place at a remote location and without the ability for
the regulator to immediately or even quickly gain access in order to ascertain
the facts directly relating to these defences. As a result, the facts and
information directly relevant to the defence is entirely within the defendant's
knowledge; only the defendant, with their particular knowledge of, and
involvement in, the circumstances happening in the event of the failure to
comply with the direction, or during a well integrity emergency, is able to
prove the requisite and exception-based matters of reasonable steps or
practicable actions.
Both defences are likely to be used by companies with
significant resources, who are more than capable of shouldering the legal
burden if they wish to claim a defence. The industry is highly regulated and
companies involved have chosen to voluntarily participate in this regulated
environment on a for profit basis. In addition, in relation to the breach of
directions defence, the penalties are generally 100 penalty units and do not
involve imprisonment.
As a result, both measures contain a limitation that is both
reasonable and proportionate to the achievement of the relevant objective. It
is also the least rights restrictive approach while still balancing the ability
of the measures to effectively achieve their objective.
2.292
As to whether consideration could be given to amending the measures to
provide for a reverse evidential burden rather than a reverse legal burden, the
minister's response states:
Allowing for a reversal of the evidential burden of proof
only would create internal inconsistencies in the Act and its established
treatment of offences and defences. It is essential to avoid any perception by
the offshore petroleum and greenhouse gas storage industries that the
Commonwealth is 'soft' on compliance. Defences should be available only to
those who have genuinely done everything in their power to avert the occurrence
of an adverse event and can demonstrate that they have done so.
To provide the ability of a defendant to simply point to
evidence that suggests a reasonable possibility that reasonable steps were
taken to comply with a direction or that compliance with well integrity laws
was not practicable in the face of an emergency would result in the regulator
being unable to successfully and meaningfully take enforcement action in the
case of an offence being committed, and this would undermine the legitimate
objective in question.
In the aftermath of an event where one or more workers may
have suffered serious injury or may have died, or where significant
environmental damage may have occurred, it is appropriate that a titleholder
should have to demonstrate, on the balance of probabilities, that the
titleholder took all available action to prevent the occurrence, rather than
merely to meet the evidential burden relating to the possibility of having done
so.
Due to the remote occurrence of the regulated activities, the
regulator is not able to, at the relevant time, independently assess and verify
what is reasonable or practicable in the event of non-compliance. Accordingly,
the defence would almost always succeed without the real ability of the
prosecution to contest its veracity. The relevant facts are entirely within the
defendant's knowledge and not at all within the regulator's knowledge. This
puts the regulator at a significant disadvantage when attempting to establish
the chain of causation of an adverse event and to meet a legal burden of proof
that a defence cannot be relied upon. This would ultimately lead to suboptimal
outcomes for OHS of offshore workers and protection of the marine environment.
2.293
Accordingly, the information provided indicates that the measure is
likely to be a proportionate means of achieving its legitimate objectives.
Specifically, noting the regulatory context, it appears that the reverse burden
offences are the least rights restrictive approach.
Committee response
2.294
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.295
The committee notes that the measures are likely to be compatible
with the right to be presumed innocent.
Mr Ian Goodenough MP
Chair
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