New and continuing matters
1.1
This chapter provides assessments of the human rights compatibility of:
1.2
The committee has concluded its consideration of the Migration (IMMI
18/015: English Language Tests and Evidence Exemptions for Subclass 500
(Student) Visa) Instrument 2018 [F2018L00713], which was previously deferred.
Instruments not raising human rights concerns
1.3
The committee has examined the legislative instruments registered in the
period identified above, as listed on the Federal Register of Legislation. Instruments
raising human rights concerns are identified in this chapter.
1.4
The committee has concluded that the remaining instruments do not raise
human rights concerns, either because they do not engage human rights, they
contain only justifiable (or marginal) limitations on human rights or because
they promote human rights and do not require additional comment.
Response required
1.5
The committee seeks a response or further information from the relevant minister
or legislation proponent with respect to the following bills and instruments.
Defence Amendment (Call Out of the Australian Defence Force) Bill 2018
Purpose |
Seeks to make a range of
amendments to the Defence Act 1903 including to permit states and
territories to request that the Commonwealth call out the Australian Defence
Force (ADF) in a wider range of circumstances; enable call out orders to
authorise the ADF to operate in multiple jurisdictions, as well as the
offshore area; allow the ADF to be pre-authorised to respond to land and
maritime threats, in addition to aviation threats; increase the requirements for
the ADF to consult with state and territory police where it is operating in
their jurisdictions; expand the power of the ADF to search and seize, and to
control movement during an incident |
Portfolio |
Attorney-General |
Introduced |
House of Representatives,
28 June 2018 |
Rights |
Life; liberty; freedom of
movement; privacy; expression; assembly; association (see Appendix 2) |
Status |
Seeking additional
information |
Call outs of the Australian Defence Force domestically
1.6
The bill proposes to amend Part IIIAA of the Defence Act 1903 (Defence
Act) to expand the circumstances[3] in which the ADF may be called out in response to 'domestic violence'[4] in Australia
under two types of types of orders:
Call out orders
Commonwealth interests call out
order
1.7
Under the bill, the Governor-General may make a Commonwealth
interests call out order if the authorising ministers are satisfied that:
- 'domestic violence', that is likely to affect Commonwealth
interests, is occurring or is likely to occur; and/or
- there is a threat in the Australian offshore area[5] to Commonwealth interests; and
-
the powers of the ADF set out in one or more of divisions 3, 4
and/or 5 of the bill should apply (see below); and
-
the ADF should be called out to protect Commonwealth interests
against the domestic violence or threat or both.[6]
State or territory call out order
1.8
Under the bill the Governor-General may also make a state or
territory call out order if:
- a state or territory government applies to the Commonwealth
government to protect the state or territory against 'domestic violence' that
is occurring or is likely to occur in the state or territory;
- the powers of the ADF set out in one or more of divisions 3, 4
and/or 5 of the bill should apply (see below); and
- the authorising ministers are satisfied that the ADF should be
called out to protect the state or territory against domestic violence.[7]
1.9
In determining whether the ADF should be called out and whether either
type of order should be made, the authorising ministers must consider the nature
of the domestic violence, whether using the ADF would be likely to enhance the
ability of states and territories to protect Commonwealth interests or to
protect the state or territory and any other matter considered relevant.[8] Under both types of order the ADF can be called out immediately or under a
contingent call out order including for reasons of urgency.[9] Under a contingent call out order the ADF will be called out automatically if
specified circumstances arise.[10]
Powers of the ADF once called out
Divisions 3 and 4 - special powers
and powers for specified areas
1.10
Divisions 3 and 4[11] of the bill confer powers on members of the ADF if the ADF is being utilised
under a call out order that specifies the divisions apply. This includes powers
to:
-
capture or recapture a location, prevent or put an end to
violence;
-
take measures including the use of force against an aircraft or
vessel;
- control the movement of persons by means of transport;
- erect barriers, stop any person, direct any person not to enter
or leave or move within a 'specified area';
- search persons, locations, premises, transport or things for
items that may be seized;
- seize any item that the member believes on reasonable grounds is
a thing that may be seized in relation to the call out order;
- detain any person that the member believes on reasonable grounds
may be detained;[12]
- direct a person to answer a question or produce a document that
is readily accessible to the person (including requiring the person to provide
identification);
- direct a person to operate machinery or a facility;
- actions incidental to such powers.[13]
1.11
It is an offence for a person to fail to comply with a direction, with a
penalty of 60 penalty units.[14]
Division 5 – powers to protect
declared infrastructure
1.12
Division 5 of the bill confers powers on members of the ADF if the ADF
is being utilised under a call out order that specifies the division applies
and the powers are to protect 'declared infrastructure'.[15] The member may take a number of actions to prevent, or put an end to, damage or
disruption or exercise a range of powers including those outlined above at [1.10].[16]
Division 6 - Use of force
1.13
Division 6 provides that a member of the ADF being utilised under a call
out order may use reasonable and necessary force, whether the member is
exercising a power under Part IIIAA of the Defence Act or not.[17]
1.14
Subsection 51N(3) provides that in using force against a person, a
member of the ADF must not do anything that is likely to cause death or
grievous bodily harm unless:
- the member believes on reasonable grounds that the use of force
is:
- necessary to protect the life of, or to prevent serious injury
to, a person (including the member) (subsection 51N(3)(a)(i)); or
- necessary to protect the declared infrastructure (subsection
51N(3)(a)(ii); or
- in relation to powers exercised to take authorised action under
subsection 46(5)(d) or (e) (taking measures against an aircraft or vessel
including destroying it), reasonable and necessary to give effect to the order
under which, or under the authority of which, the member is acting
(51N(3)(a)(iii)); and
-
if a person against whom force is to be used is attempting to
escape being detained by fleeing—the person has, if practicable, been called on
to surrender and the member believes on reasonable grounds that the person
cannot be apprehended in any other manner.
Civil and criminal
liability for ADF members
1.15
Proposed section 51Z provides a defence of superior orders for criminal
acts done by ADF members operating under call out orders in certain
circumstances. Additionally proposed subsection 51S(2) provides that an ADF
member will not be criminally and civilly liable for a purported exercise of
powers if the order, declaration or authorisation was not validly made and, if
the member made the authorisation, the powers were exercised or purportedly
exercised in good faith.
Compatibility of the measures with
multiple rights
1.16
The call out orders engage and may limit a number of human rights
including:
- the right to life;
- the right to liberty;
- the right to freedom of movement;
-
the right to privacy;
- the rights to freedom of expression, association and assembly;
- the right to an effective remedy.
1.17
Each of these rights is discussed further below.
Compatibility of the measure with
the right to life
1.18
The right to life imposes an obligation on Australia to protect persons
from being killed by identified risks and prohibits a person being arbitrarily
killed by the state. The use of force by government authorities such as the
police or military resulting in a person's death can only be justified if the
use of force was necessary, reasonable and proportionate in the circumstances.
1.19
As the measures authorise the use of force including lethal force once
the ADF is called out, the measures engage and may limit the right to life. The
statement of compatibility acknowledges that the measures engage the right to
life but argues that deprivation of life in accordance with proposed section
51N(3) is not 'arbitrary'.
1.20
A measure that limits the right to life may be justifiable if it is demonstrated
that it addresses a legitimate objective, is rationally connected to that
objective and is a proportionate means of achieving that objective. In relation
to the legitimate objective of the measure, the statement of compatibility
states that the:
...measure is necessary to achieve the legitimate objective of
the protection of the Australian populace from acts of significant violence,
such as terrorism incidents. It ensures that members of the ADF have the
necessary powers to assist state and territory police responding to incidents
of domestic violence in a manner that minimises risk to members of the public.
Given the nature of incidents of domestic violence, such as a terrorist
incident or other mass casualty attack, it is necessary to empower ADF members
to use lethal force (or force that may cause grievous bodily harm) in
appropriate circumstances.[18]
1.21
In general terms, protecting the Australian populace from acts of
significant violence would be capable of constituting a legitimate objective
for the purposes of international human rights law. However, in order to
establish whether this is indeed a legitimate objective in relation to this
measure, further information is required as to whether there are currently pressing
and substantial concerns regarding the protection of the Australian populace
from acts of significant violence, which give rise to the need for the specific
measure. In particular, the statement of compatibility does not fully address
why current powers and state policing are insufficient to achieve the stated
objective. Further, it does not address why the threshold for the call out of
the ADF needs to be lowered, or the need for the powers to be so broad, in
particular in relation to the use of force, once the ADF is called out.
1.22
In relation to whether the measure is rationally connected to (that, is
effective to achieve) its stated objective, the statement of compatibility
argues:
Each of the circumstances in which ADF members may use lethal
force is connected with the protection of others' lives. For proposed
subparagraph 51N(3)(a)(i), this is explicit. For proposed subparagraph
51N(3)(a)(ii), this is implicit, as infrastructure may only be the subject of a
declaration under proposed section 51H if damage to it or disruption of its
operations would endanger life. For proposed subparagraph 51N(3)(a)(iii), this
is implicit, as the taking of measures against an aircraft or vessel (that may
involve the loss of life or grievous bodily harm) would only be reasonable and
necessary if that aircraft or vessel posed a significant threat (eg. by causing
mass casualties).[19]
1.23
While the use of lethal force may be rationally connected to achieving
the protection of other's lives in some circumstances, it is less clear that
the scope of the proposed power will address this objective in all
circumstances. For example, in relation to the power to use lethal force to
protect declared infrastructure, for infrastructure to be declared the
threshold is that 'damage or destruction would directly or indirectly endanger
the life of, or cause serious injury to any person'.[20] However, there is potentially a broad range of infrastructure[21] that may fall into this category from power generation facilities to traffic
lights (which may cause serious injury through their non-operation). This means
the risk to human life caused by any damage or disruption to declared
infrastructure may be either immediate or remote. In circumstances where the
risk is more remote, use of lethal force to protect declared infrastructure may
not be effective to achieve the stated objective. Accordingly, there are
questions as to whether the measure as drafted is rationally connected to its
stated objective.
1.24
As to proportionality, measures authorising the use of force must be no
more extensive than is strictly necessary to achieve their stated objective. The
test of proportionality that applies in relation to the deprivation of life is
a strict one and also requires the use of precautionary measures by government
forces to reduce risk to life when planning operations.[22] The use of force
(including lethal force) by the ADF against people domestically is a serious
and exceptional measure. While the statement of compatibility addresses the
specifics of the measure and relevant safeguards, it does not explain why
existing powers are insufficient to address the stated objective. As noted
above, it is unclear from the statement of compatibility why reducing the
threshold for the call out of the ADF and consequentially conferring coercive
powers on the ADF is necessary.
1.25
While the stated objective of the measure is the 'protection of the
Australian populace from acts of significant violence, such as terrorism
incidents,' the proposed call out powers are not limited in this way and may be
broader in scope. Specifically, while the ADF may be called out in response to
'domestic violence' which is occurring or is likely to occur, 'domestic
violence' is not specifically defined.[23]
The statement of compatibility states that 'domestic violence' refers to
'conduct that is marked by great physical force'.[24] However, it appears that by not specifically defining 'domestic violence' in
the legislation there is a risk that 'domestic violence' could apply to a
broader range of disturbances not necessarily involving great physical force
(including, potentially, forms of civil disturbances, such as political protest
and civil disobedience). As such, the measure as framed would appear to be
overly broad with respect to its stated objective. Ultimately, if the conferral
of powers on the ADF through the call out powers is not the least rights
restrictive approach then the measure may not be a proportionate limitation on
human rights.
1.26
In relation to the specific use of lethal force provisions, it is
acknowledged that these are accompanied by some safeguards including, as set
out in the statement of compatibility, that the force must be 'necessary and
reasonable in all the circumstances' for identified grounds. However, while
some grounds may accord with standards relating to when it might be permissible
to use lethal force (for example, where it is necessary to protect the life of
others or self-defence), it is less clear that the grounds relating to
protecting declared infrastructure or taking measures against an aircraft or
vessel under an authorisation accord with these standards.
1.27
In relation to the use of force, including lethal force where necessary,
to protect declared infrastructure, the statement of compatibility argues that
this is proportionate as damage to the declared infrastructure or disruption to
its operations would 'directly or indirectly endanger the lives of, or cause
significant injury to, other persons'.[25] However, it is unclear to what extent the threshold for declaring
infrastructure requires that there be a level of specific risk of direct or
indirect injury or to life through damage or disruption of the declared
infrastructure.[26] This is of concern as there is potentially a wide range of infrastructure,
damage or disruption of which may directly or indirectly lead to risk to life
or injury. Further, it is unclear whether there might be less rights
restrictive ways of mitigating such risk such as, for example, bringing
alternative infrastructure online. Accordingly, it is unclear from the
statement of compatibility that, in every case, the degree of risk associated
with damage or disruption to such infrastructure would necessarily be such as
to warrant the potential use of lethal force.
1.28
In relation to the use of force when taking measures against an aircraft
or vessel, the statement of compatibility explains that the ADF cannot use
force likely to cause death, or grievous bodily harm, unless they believe on
reasonable grounds it is necessary for the purposes of giving effect to an
order under which they are acting.[27] However, the statement of compatibility acknowledges that deprivation of life
under these powers may be considerable:
There will be some circumstances where the use of lethal
force would require a decision to destroy an aircraft or vessel, which may be
carrying large numbers of innocent people, in order to save the lives of other
people. There may be other circumstances where only the person causing or
threatening the domestic violence may be killed or injured.[28]
1.29
The statement of compatibility points to some safeguards in relation to
taking such lethal measures. For example, the authorising minister must not
authorise taking measures against a craft or vessel unless the minister is
satisfied that it is reasonable and necessary or that it would be reasonable
and necessary in relation to a contingent call out order if the circumstances
specified in the contingent order arose.[29] However, measures may also be taken where the ADF member believes on reasonable
grounds that there is insufficient time to obtain the authorisation from the
minister because a sudden and extraordinary emergency exists.[30] In such circumstances, the ADF member is still required to consider whether
using lethal force is reasonable and necessary to give effect to a superior's
order. However, it is unclear to what extent there is a requirement for the ADF
member to expressly consider whether a use of lethal force is absolutely
necessary to protect the lives of others (as opposed to necessary to give
effect to a superior's order.) This raises concerns that the measure may not be
a proportionate limitation on the right to life.
1.30
The situation described in [1.28], where an aircraft or vessel is
destroyed, resulting in the loss of life of large numbers of innocent people,
raises particular concerns regarding proportionality. Bearing in mind the
fundamental nature of the right to life, and the fact that it may be difficult
to assess the degree of risk to others which provides the justification for
such action, it is not clear, in the absence of further information, that this
is a proportionate limit on the right to life under international human rights
law.[31]
1.31
It is also noted that the powers would permit lethal force to be used
when a person is attempting to escape or flee if the ADF believes on reasonable
grounds that a person cannot be apprehended in any other way. The statement of
compatibility explains that this is accompanied by relevant safeguards,
including that one of the grounds for the use of lethal force has been met and
if practicable the person has been called upon to surrender. However, given
that some of the grounds for the use of lethal force appear to be overly broad,
use of lethal force in circumstances where a person is fleeing or attempting to
escape may also raise concerns.
Committee comment
1.32
The preceding analysis raises questions about the compatibility
of the measure with the right to life.
1.33
The committee therefore seeks the advice of the Attorney-General
as to:
- whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective
(including how current laws are insufficient to address this objective);
- how the measure is effective to achieve (that is, rationally
connected to) that objective (in each of the circumstances where use of lethal
force is permissible); and
- whether the limitation is a reasonable and proportionate
measure to achieve the stated objective (including whether the measure is
sufficiently circumscribed and is the least rights restrictive approach;
whether there are sufficient safeguards; whether what amounts to 'domestic
violence' could be explicitly defined; in relation to the situation described
in [1.28], where an aircraft or vessel is destroyed, resulting in the loss of
life of large numbers of innocent people, whether the measure is proportionate).
Compatibility of the measure with
the right to liberty
1.34
The right to liberty includes the right not to be subject to arbitrary
detention which requires
that detention must be lawful, reasonable, necessary and proportionate in all
the circumstances. As the measures allow for the detention of individuals in a
number of circumstances, they engage and limit the right to liberty.[32] This limitation is acknowledged in the statement of compatibility which argues
it is permissible on the basis that it is 'reasonable, necessary and
proportionate'.[33]
1.35
The statement of compatibility sets out the objective of the measure as
'responding to, and protecting the Australian populace from, acts of
significant violence, including terrorism'.[34] As noted above, while generally this may be capable of constituting a
legitimate objective, further information is required as to its importance in
the context of the specific measure and why current powers are insufficient to
achieve the objective.
1.36
The detention of a person in circumstances where they pose a threat to
any person's life, health or safety, or public health or safety, or where they
have committed an offence related to the domestic violence, is likely to be
rationally connected to the stated objective.[35]
1.37
In relation to the proportionality of the measure, as set out above at [1.25],
further information is required to determine whether providing the ADF access
to such powers is necessary. In relation to the specific detention power, the
statement of compatibility sets out a number of relevant safeguards including
the specific context of a call out order and the requirement that a member of
the ADF must believe on reasonable grounds that the person poses a relevant
threat or has committed a relevant offence in circumstances where it is
necessary to detain them as a matter of urgency. Further, the statement of
compatibility explains that detention under a call out order must be for the
purpose of placing the person in the custody of the police force at the
earliest practicable time.[36] These are relevant safeguards that assist with the proportionality of the
measure.
1.38
However, it is noted that a deprivation of liberty is a serious matter
and generally where a deprivation of liberty occurs in a regular policing
context it is accompanied by considerable safeguards. This may include
timeframes for a person to be charged, released or brought before a bail
authority or court. It is unclear from the information provided in the
statement of compatibility to what extent these usual safeguards apply
following the handover of a person to the police. Further, noting that there
would appear to be more extensive safeguards in these other contexts, it is
unclear from the information provided that the measure represents the least
rights restrictive approach.
Committee comment
1.39
The preceding analysis raises questions about the compatibility
of the measure with the right to liberty.
1.40
The committee therefore seeks the advice of the Attorney-General
as to:
- whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
- whether the limitation is a reasonable and proportionate
measure to achieve the stated objective (including what safeguards apply once a
person is handed over to police; prior to a handover to police whether there
are sufficient safeguards; and whether the measure is the least rights
restrictive approach).
Compatibility of the measure with
the right to freedom of movement
1.41
The right to freedom of movement includes the right of people to move
freely within Australia and to access public places. The right to freedom of
movement may be subject to permissible limitations in particular circumstances.
1.42
By providing the ADF powers to erect barriers, to stop individuals and
vehicles and to require people to move on from particular areas, the measures
engage and limit the right to freedom of movement. This right was not
addressed in the statement of compatibility and so no assessment is provided as
to whether the measures constitute a permissible limitation on this right.
Committee comment
1.43
The preceding analysis raises questions about the compatibility
of the measure with the right to freedom of movement. This right was not addressed
in the statement of compatibility.
1.44
The committee therefore seeks the advice of the Attorney-General
as to:
- whether the measure pursues a legitimate objective for the
purposes of international human rights law (including how current laws are insufficient
to address this objective);
- how the measure is effective to achieve (that is, rationally
connected to) that objective; and
- whether the limitation is a reasonable and proportionate
measure to achieve the stated objective.
Compatibility of the measure with
the right to privacy
1.45
The right to privacy prohibits arbitrary or unlawful interferences with
an individual's privacy, family, correspondence or home.[37] A number of measures in the bill engage and limit the right to privacy
including:
- powers to search locations, things, means of transport; and
- powers to direct a person to answer a question or produce a
document which is reasonably accessible to the person (including
identification).[38]
1.46
The statement of compatibility acknowledges that these measures engage
and limit the right to privacy but argues that the limitation is permissible.[39] The right to privacy may be subject to permissible limitations which are provided by law and are not
arbitrary. In order for limitations not to be arbitrary, the measure must
pursue a legitimate objective and be rationally connected and proportionate to achieving that
objective.
1.47
The statement of compatibility sets out the objective of the measure as
outlined above. While generally this may be capable of constituting a
legitimate objective, further information is required as to its importance in
the context of the specific measure and why current powers are insufficient to
achieve the objective.
1.48
As to whether the measures are rationally connected to that objective,
the statement of compatibility outlines some information as to how incidental
search powers may be effective to achieve the stated objective. However, there
are concerns in relation to the proportionality of the limitation. As set out
above at [1.25], there are a number of questions as to whether providing the
ADF access to such powers is necessary. Further, these powers are coercive and
highly invasive in nature. For example, in relation to a specified area,
everyone in that area may be subject to stop, search, questioning and seizure
powers. While there are some restrictions on what can be searched for, there is
no requirement that the ADF member have a reasonable suspicion in relation to
the search or the individual.
1.49
There are further questions about whether the powers are more extensive
than is strictly necessary to achieve their stated objective. These powers are
in addition to existing police powers under Commonwealth criminal law,
including a range of powers to assist in the collection of
evidence of a crime.[40] They are also in addition to stop, search and seize powers
contained in Part IAA Division 3A of the Crimes Act 1914.
Committee comment
1.50
The preceding analysis raises questions about the compatibility
of the measure with the right to privacy.
1.51
The committee therefore seeks the advice of the Attorney-General
as to:
- whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective
(including how current laws are insufficient to address this objective);
- how the measure is effective to achieve (that is, rationally
connected to) that objective; and
- whether the limitation is a reasonable and proportionate
measure to achieve the stated objective (including whether it is necessary,
whether it is the least rights restrictive approach and whether there are
adequate and effective safeguards in place in relation to its operation).
Compatibility of the measure with
the right to freedom of expression, association and assembly
1.52
The rights to freedom of expression, association and assembly, including
the right to strike, are protected by the International Covenant on Civil and
Political Rights (ICCPR) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR).[41]
1.53
These rights are potentially engaged in a number of ways by the measure.
First, given the breadth of the powers of the ADF operating under a call out
order, there are questions as to whether the powers could be used to, for
example, move on protesters from a particular area. Secondly, as noted above,
subject to some other conditions, a precondition for the call out powers being
invoked is that they are in response to 'domestic violence.' It is unclear the
breadth of this definition and whether it may capture a broader range of
conduct than is necessary to achieve the stated objective of the legislation.
As noted above, while the statement of compatibility explains that 'domestic
violence' is marked by great physical force, the term is not so defined in the
bill. In this respect, proposed subsections 33(4), 34(4), 35(4) and 36(4)
provide that 'the Reserves must not be called out or utilised in connection
with an industrial dispute'. While this is a relevant safeguard, by implication
it appears that the permanent ADF could be called out in relation to industrial
disputes. Further, proposed subsection 39(3) provides that the chief of the ADF
must not stop or restrict any protest, dissent or assembly or industrial
action, except if there is a reasonable likelihood of the death or serious
injury of persons or serious damage to property. While this also acts as a
potential safeguard, also by implication, it is unclear the extent to which
call out orders could be made in relation to strikes, protests or acts of civil
disobedience. As these rights were not addressed in the statement of
compatibility, no assessment is provided as to whether the measures are
compatible with the rights to freedom of assembly, expression and association
including the right to strike.
Committee comment
1.54
The preceding analysis raises questions as to whether the
measures are compatible with the right to freedom of assembly, expression and
association. These rights were not addressed in the statement of compatibility.
1.55
The committee therefore seeks the advice of the Attorney-General
as to:
- whether the measure pursues a legitimate objective for the
purposes of international human rights law (including how current laws are
insufficient to address this objective);
- how the measure is effective to achieve (that is, rationally
connected to) that objective; and
- whether the limitation is a reasonable and proportionate
measure to achieve the stated objective, including:
- the extent to which 'domestic violence' could capture
political protests or industrial action;
- whether 'domestic violence' could be defined in the bill and
appropriately circumscribed;
- whether there are adequate and effective safeguards in place.
Compatibility of the measure with
the right to an effective remedy
1.56
The right to an effective remedy requires states parties to ensure
access to an effective remedy for violations of human rights. This may take a
variety of forms, such as prosecutions of suspected perpetrators or
compensation to victims of abuse. Proposed section 51Z engages this right as it
provides a defence of superior orders for criminal acts done by ADF members in
certain circumstances.[42] If the conduct in question also constitutes a breach of human rights, this
could potentially raise concerns about the availability of an effective remedy
for victims in these circumstances. However, the right to an effective remedy
was not addressed in the statement of compatibility and accordingly no
assessment was provided as to the compatibility of the measure with this
right.
Committee comment
1.57
The preceding analysis raises questions as to the compatibility
of the measure with the right to an effective remedy. This right was not
addressed in the statement of compatibility.
1.58
The committee therefore seeks the advice of the Attorney-General
as to the compatibility of the measure with the right to an effective remedy.
Modern Slavery Bill 2018
Purpose |
Seeks to require certain
large businesses and government entities to make annual reports (Modern
Slavery Statements) on actions to address modern slavery risks in their
operations and supply chains. Also seeks to require the minister to publish
Modern Slavery Statements in an online register |
Portfolio |
Home Affairs |
Introduced |
House of Representatives,
28 June 2018 |
Rights |
Multiple rights (see Appendix
2) |
Status |
Seeking additional
information |
Modern slavery reporting requirements
1.59
The bill seeks to require certain government and non-government entities
(reporting entities)[43] to provide an annual report (Modern Slavery Statement) to the minister. The
Modern Slavery Statement would be required to identify the reporting entity,
and to describe:
- the reporting entity's structure, operations and supply chains;
- the risks of modern slavery practices[44] in the operations and supply chains of the reporting entity, and any entities
that the reporting entity owns or controls;
- the actions taken by the reporting entity and any entity that the
reporting entity owns, to assess and address those risks, including due
diligence and remediation processes;
- how the reporting entity assesses the effectiveness of such
actions;
- consultation undertaken with entities that the reporting entity
owns, and entities with which the reporting entity has prepared a joint
statement; and
- any other relevant information.[45]
1.60
The bill also seeks to require the minister to register all Modern
Slavery Statements given in accordance with the requirements in the bill in an
online register.[46] Where a Modern Slavery Statement does not comply with the requirements in the
bill, the minister would still be able to register the statement, although they
would not be required to do so.[47]
1.61
Additionally, the bill seeks to permit other entities (so long as they
are Australian entities or carry on business in Australia) to comply with the
reporting requirements in the bill on a voluntary basis. An entity would be
able to volunteer to comply with the reporting requirements by giving written
notice to the minister.[48]
Compatibility of the measure with
multiple rights
1.62
By requiring reporting entities to prepare Modern Slavery Statements,
and requiring the minister to make those statements publicly available, the
bill engages positively with (promotes) multiple rights. These include:
-
the right to freedom from slavery and forced labour;[49]
- the right to freedom from torture and other cruel, inhuman or
degrading treatment;[50]
- the right to work and the right to just and favourable conditions
of work;[51]
- the rights of women to protection from exploitation, violence and
abuse;[52]
- the rights of children to protection from exploitation, violence
and abuse;[53]
- the right to freedom of movement;[54] and
-
the right to health[55] (see Appendix 2).
1.63
The key right promoted by the bill is the right to freedom from slavery
and forced labour, protected under Article 8 of the International Covenant on
Civil and Political Rights (ICCPR).
1.64
Article 8 of the ICCPR provides that no one shall be held in slavery or
servitude and that no one shall be required to perform forced or compulsory
labour. The right to freedom from slavery and forced labour is an absolute
right, meaning that it cannot lawfully be limited in any circumstances. The
prohibition on slavery and servitude is a prohibition on 'owning' another
person or exploiting or dominating another and subjecting them to
'slavery-like' conditions.
1.65
The right to be free from forced or compulsory labour prohibits
requiring a person to undertake work which he or she has not voluntarily
consented to, but does so because of threats made, either physical or
psychological. This does not include lawful work required of prisoners or those
in the military; work required during an emergency threatening the community;
or other work or service that is a part of normal civic obligation (for
example, jury service).
1.66
In the context of the right to freedom from slavery and forced labour,
states' obligations include duties not to subject anyone to such treatment
itself, to prohibit slavery and related practices in domestic law, to ensure
there are adequate laws and measures in place to prevent private individuals or
companies from subjecting people to such treatment (such as laws and measures
in place to prevent trafficking), to ensure that allegations of forced labour
are investigated, and to ensure that victims of modern slavery have access to
adequate and effective redress.[56] Jurisprudence from the European Court of Human Rights (ECHR) indicates that
these obligations extend to ensuring adequate measures are in place to regulate
businesses that may be used as a cover for human trafficking.[57]
1.67
While Australia has a number of measures in place that prohibit slavery
and related practices,[58] as well as programs that provide support for victims of modern slavery,[59] there is currently no mechanism that requires Australian companies to report on
modern slavery in business operations and supply chains. The measures
introduced by the bill would therefore address a gap in Australia's capacity to
identify, investigate and respond to instances of modern slavery. Accordingly,
the bill promotes the right to be free from slavery and forced labour.
1.68
It should be noted that legislation designed to combat modern slavery in
some other jurisdictions includes measures that go further in fulfilling the absolute
obligation in relation to the right to freedom from slavery and forced labour.[60] In this
respect, there may be further mechanisms to fulfil Australia's obligations in
relation to the right to freedom from slavery and forced labour including, for
example, by strengthening the enforcement of requirements relating to Modern
Slavery Statements, or including express requirements for reporting entities to
conduct due diligence with respect to their supply chains. Nevertheless, the
bill clearly promotes the right to freedom from slavery and forced labour, and
is to be welcomed from a human rights perspective.
Committee comment
1.69
The committee draws the positive human rights implications of the
Modern Slavery Bill 2018 to the attention of the minister and parliament.
1.70
The committee welcomes the proposed reporting requirements, which
promote the right to freedom from slavery and forced labour.
Compatibility of the measure with the right to privacy
1.71
The right to privacy encompasses respect for informational privacy,
including the right to respect for private information and private life,
particularly the storing, use and disclosure of personal information (see
Appendix 2).
1.72
As outlined above at [1.59]–[1.61], the bill would require reporting
entities to give annual Modern Slavery Statements to the minister, and would
require the minister to publish these statements online. It appears that the
information in a Modern Slavery Statement would generally relate to businesses,
rather than to individuals. However, as noted in the statement of
compatibility:
- in certain circumstances, an individual's personal information
may be so closely connected with information about their business that
information about that business can constitute personal information; and
- there is a 'very small' risk that a Modern Slavery Statement
could identify victims or potential victims of modern slavery.[61]
1.73
In those circumstances, the measures engage and limit the right to
privacy, as they may result in the disclosure of personal information, and
could identify a victim or potential victim—thereby compromising their right to
privacy and reputation. The identification of a victim of modern slavery may
also expose that person to additional abuse or exploitation.
1.74
The statement of compatibility recognises that the right to privacy is
engaged and limited by the bill. However, the statement of compatibility
further states that the limitation is reasonable and necessary as the
disclosure of certain information is required to achieve the legitimate
objectives of the bill.[62]
1.75
The objective of the bill is described in the statement of compatibility
as 'strengthen[ing] Australia's approach to modern slavery by equipping and
enabling Australia's business community to respond effectively to modern
slavery and develop and maintain responsible and transparent supply chains'.[63] This is likely to be a legitimate objective for the purposes of international
human rights law. Requiring particular entities to identify and report on risks
of modern slavery within their supply chains, and requiring that this
information be published on an online register, also appears to be rationally
connected to that objective.
1.76
The statement of compatibility states that the collection and retention
of information relevant to the bill is carefully regulated, with only limited
information required to be disclosed.[64] The statement of compatibility also sets out a number of safeguards that are
intended to ensure Modern Slavery Statements do not disclose information that
would identify victims or potential victims of modern slavery. These include:
- the reporting criteria do not mandate the provision of any
information that would identify victims or potential victims of modern slavery;
- detailed guidance will be issued prior to the commencement of the
bill, which will underscore the importance of ensuring victims of modern
slavery are not identified;
- the legislation will be publicly accessible and accompanied by
detailed guidance so that affected persons have adequate information about how
the bill may limit their right to privacy;
- information may only be collected by the minister or by
delegates, and the information that may be collected is clearly prescribed and
limited to that which is most important to achieving the objectives of the
bill.[65]
1.77
These safeguards are important and relevant to the proportionality of the
measures. However, they appear to rely largely on the discretion and diligence
of reporting entities. In this respect, it is noted that the requirements for
the content of Modern Slavery Statements[66] are broadly worded. There also do not appear to be any statutory prohibitions
in the bill on including personal information, or other information that could
identify a victim or potential victim of modern slavery, in Modern Slavery
Statements. There would therefore appear to be other, less rights-restrictive
approaches available, such as an express requirement that a Modern Slavery
Statement not contain personal or other identifying information.
1.78
The bill also does not appear to prohibit the minister from publishing a
statement that contains information of this kind. It is also unclear the extent
to which the minister may be able to redact any information from a Modern
Slavery Statement, or request that the reporting entity cause the statement to
be redacted, in order to protect personal or sensitive information from being
publicly disclosed. Further information in this respect would assist in
determining whether there are adequate safeguards in place to protect the right
to privacy.
Committee comment
1.79
The preceding analysis indicates that the measures may engage and
limit the right to privacy.
1.80
The committee therefore seeks the advice of the minister as to
whether the measures are a reasonable and proportionate means of achieving the
stated objective (including any safeguards in place against the disclosure of
personal information, or information that could identify the victim or
potential victim of modern slavery).
Advice only
1.81
The committee draws the following bills and instruments to the attention
of the relevant minister or legislation proponent on an advice only basis. The
committee does not require a response to these comments.
Migration (IMMI 18/019: Fast Track Applicant Class) Instrument 2018
[F2018L00672]
Purpose |
Specifies a class of
persons who are fast track applicants |
Portfolio |
Home Affairs |
Authorising legislation |
Migration Act 1958 |
Last day to disallow |
15 sitting days after
tabling (tabled Senate 18 June 2018) |
Rights |
Non-refoulement;
fair hearing; effective remedy; best interests of the child (see Appendix 2) |
Status |
Advice only |
Background
1.82
The committee has previously reported on the human rights compatibility
of the 'fast track assessment process' for asylum seekers, which was introduced
by the Migration and Maritime Powers Legislation Amendment (Resolving the
Asylum Legacy Caseload) Bill 2014.[67] The bill passed both Houses
of Parliament on 5 December 2014 and received Royal Assent on 15 December 2014,
and became the Migration and Maritime Powers Legislation Amendment
(Resolving the Asylum Legacy Caseload) Act 2014 (the Migration and Maritime
Powers Act).
1.83
The Migration and Maritime Powers Act established a new fast track
assessment process for 'fast track applicants', defined as protection visa
applicants who entered Australia as unauthorised maritime arrivals on or after
13 August 2012. The minister also has the power to extend this process to other
groups of asylum seekers.
1.84
'Fast track applicants' who are refused a protection visa ('fast track
decision') do not have access to the Migration and Refugee Division of the
Administrative Appeals Tribunal (formerly the Refugee Review Tribunal), but
instead have access to a statutory body, the Immigration Assessment Authority
(IAA), to review protection claims.
1.85
Reviews of decisions by the IAA under the 'fast track' system are
conducted on the papers rather than at a hearing before the IAA, and the IAA
are unable to consider new information at the review stage unless there are
exceptional circumstances.[68] Fast track applicants also have access to judicial review of protection visa
decisions. The committee previously concluded that the fast-track process may
be incompatible with a number of human rights.[69]
Specifying a class of persons as fast track applicants
1.86
The instrument specifies a class of persons who are included in the
definition of 'fast track applicant'. The instrument provides that a person is
a 'fast track applicant' if the person is an unauthorised maritime arrival, the
person has made a protection claim, and:
- the
person had their protection claim considered, or reconsidered, through an
administrative process that occurred in relation to the [Migration] Act or
[Migration] Regulations, including (but not limited to) the following
processes:
- Refugee Status
Assessment;
- Protection Obligations
Evaluation;
- Independent Merits
Review;
- Independent Protection
Assessment;
- International Treaties
Obligation Assessment; and
- the
person has been assessed as not engaging Australia's protection obligations;
and
- the
person applied to the High Court or Federal Circuit Court to review the
assessment and one of the following occurred:
- the
Court made a declaration that the assessment was not made according to law;
- the
Minister withdrew from the court proceedings before the Court made a decision.[70]
1.87
The instrument also provides that children of a person described as
'fast track applicants' will also be fast track applicants.[71]
Compatibility of the measure with
the right to non-refoulement and the right to an effective remedy
1.88
The obligation of non-refoulement requires that Australia must not
return any person to a country where there is a real risk that they would face
persecution, torture or other serious forms of harm, such as the death penalty;
arbitrary deprivation of life; or cruel, inhuman or degrading treatment or
punishment.[72] Non-refoulement obligations are absolute and may not be subject to any
limitations.
1.89
Compliance with the obligation of non-refoulement requires that
sufficient procedural and substantive safeguards are in place to ensure a
person is not removed in contravention of this obligation, given the
irreversible nature of the harm that may result. Effective, independent and
impartial review by a court or tribunal of decisions to deport or remove a
person in accordance with the right to an effective remedy, is integral to
giving effect to non-refoulement obligations.[73]
1.90
The effect of the instrument is that persons falling within the amended
definition of 'fast track applicant' must pursue the re-assessment of their
protection claims through the fast track assessment process.[74] Determining certain persons to be 'fast track applicants' such that their
claims are assessed through the fast track process therefore engages
Australia's non-refoulement obligations and the right to an effective
remedy because of the limitations on independent and effective review of fast
track decisions.
1.91
The statement of compatibility also acknowledges that Australia's non-refoulement obligations are engaged.[75] However, it states that the instrument does not affect the substance of
Australia's adherence to its non-refoulement obligations for several
reasons. First, the statement of compatibility states that there is no express
requirement in the International Covenant on Civil and Political Rights (ICCPR)
or the Convention against Torture (CAT) for any particular process or procedure
for the assessment of non-refoulement obligations, and that it is for
each state to establish the most appropriate procedures for processing claims
and review mechanisms.[76] The statement of compatibility further states that:
All fast track applicants are afforded an opportunity to have
their claims determined in an open and transparent statutory process while
ensuring priority is given to identifying applications that present legitimate
claims and in turn, persons who require Australia's protection. While merits
review can be an important safeguard, there is no express requirement under the
ICCPR or the CAT for merits review in the assessment of non-refoulement obligations.
Fast track applicants are afforded a different form of merits review to persons
who are not fast track applicants. It is the Government's view that it is
reasonable and proportionate for this cohort of UMAs, who have already been
through a number of processes to assess their claims, to have their claims
re-assessed in a process which has a more limited form of merits review. This
limited form of merits review is intended to be efficient, quick,
cost-effective and to uphold the overall integrity of Australia's protection
status determination process, as well as being competent, independent and
impartial. Fast track applicants also have access to judicial review of their protection
visa decisions.[77]
1.92
As to the review of decisions by the IAA, as noted above and in previous
analysis the merits review conducted by the IAA is limited as it is conducted
on the information provided by the applicant to the department and will not involve
an interview. Further, the IAA is only able to reaffirm the decision or remit
it to the department for further consideration rather than substitute the
correct or preferable decision.[78] Previous human rights analysis has considered that this limited form of review
'is substantially apart from other forms of merits review in Australia', and
raises significant questions as to the effectiveness of the process in light of
Australia's non-refoulement obligations.[79]
1.93
As to the absence of any external merits review, previous human rights
analysis has noted that while there is no express requirement for merits review
in the articles of the relevant conventions or jurisprudence relating to
obligations of non-refoulement, analysis of how the obligation applies, and may
be fulfilled, in the Australian domestic legal context indicates that the
availability of merits review of such decisions would likely be required to
comply with Australia's obligations under international law.[80]
1.94
The jurisprudence of the UN Human Rights Committee and the UN Committee
against Torture establish the proposition that there is a strict requirement
for 'effective review' of non-refoulement decisions.[81] The purpose of an 'effective' review is to 'avoid irreparable harm to the
individual'.[82] In the current context, as noted, external merits review is unavailable but
judicial review is available. Judicial review in Australia is governed by the Administrative
Decisions (Judicial Review) Act 1977 and the common law,[83] and represents a limited form of review in that it allows a court to consider
only whether the decision was lawful (that is, within the power of the relevant
decision maker). The court cannot undertake a full review of the facts (that
is, the merits), as well as the law and policy aspects of the original decision
to determine whether the decision is the correct or preferable decision. There
are therefore serious concerns as to whether judicial review in the Australian
context would be sufficient to be 'effective review' for the purposes of
Australia's non-refoulement obligations.
1.95
Further, while the statement of compatibility states that it is
'reasonable and proportionate' for the persons affected by this instrument to
go through the fast track process because they have already been through a
number of processes, this is not a sufficient explanation in the context of the
obligation of non-refoulement. This is because the obligation is absolute, and
so considerations of reasonableness and proportionality do not apply. Further,
the fact that fast track applicants (as defined in the instrument) have
previously pursued their claims through the fast track process and judicial
review does not lessen the need for any re-assessment to comply with
Australia's non-refoulement obligations.
1.96
Accordingly, the committee has previously concluded that judicial review
in the Australian context is not likely to be sufficient to fulfil the
international standard required of 'effective review' because it is only
available on a number of restricted grounds of review. This is particularly in
light of the purpose of 'effective' review of non-refoulement decisions under
international law to avoid irreparable harm to the individual. Previous human
rights analysis has therefore concluded that the fast track assessment process
is likely to be incompatible with Australia's non-refoulement obligations.[84]
Committee comment
1.97
The obligation of non-refoulement is absolute and may not be
subject to any limitations.
1.98
The instrument, by applying the fast track assessment process to
particular applicants, provides for a very limited form of merits review of
non-refoulement decisions.
1.99
Accordingly, consistent with the committee's previous
conclusions, the preceding analysis indicates that the measure is likely to be
incompatible with Australia's obligations under the International Covenant on
Civil and Political Rights and the Convention Against Torture to ensure
independent, effective and impartial review, including merits review, of non‑refoulement
decisions.
Compatibility of the measure with
the right to a fair hearing and the obligation to consider the best interests
of the child
1.100
The right to a fair trial and fair hearing is protected by article 14 of
the ICCPR and applies to both criminal and civil proceedings, including where rights
and obligations are determined (suit at law). The measures may engage
and limit this right due to the restricted scope that is provided for review of
the refusal to grant a protection visa. As noted above, such decisions will be
reviewed by the IAA process and will not be subject to external merits review.
1.101
Further, articles 3 and 10 of the Convention on the Rights of the Child
requires that, in all actions concerning children, the best interests of the
child are a primary consideration. The statement of compatibility acknowledges
that this right is engaged by the measures, as section 6(2) of the instrument
prescribes that children of fast track applicants (as defined in the
instrument) are also fast track applicants.
1.102
The statement of compatibility acknowledges that article 14 is engaged
by the instrument.[85] However, it states that the measures are compatible with this right for the
following reason:
As previously outlined, the UNHCR recognises that it is for
each State to establish the most appropriate procedures for processing claims,
including review mechanisms, although it recommends that certain minimum
requirements should be met. There are sufficient safeguards in place to ensure
all fast track applicants are afforded an opportunity to have their claims
determined in an open and transparent statutory assessment process. Bringing
this class of persons into the fast track process will not affect their ability
to seek asylum, or their ability to access judicial review of a refusal
decision, nor will it prevent grant of a protection visa for applicants
satisfying the criteria for a visa.[86]
1.103
The previous human rights analysis noted that the review process
provided by the IAA is quite limited and may not ensure the right to a fair
hearing or that the best interests of the child are taken into account as a
primary consideration. This is because nothing expressly requires the IAA to
give a referred applicant any material that was before the primary decision
maker. There is also no right for an applicant to comment on the material
before the IAA. These provisions therefore diminish procedural fairness and the
applicant's prospects of correcting factual errors or wrong assumptions in the
primary decision at the review stage.
1.104
In addition, the previous analysis noted that reviewers are not
statutory appointments but employees under the Public Service Act 1999. This affects the independence of such a review and therefore the impartiality
of such a review. While judicial review is still available in the Australian
context, judicial review is limited to the lawfulness of a decision and does
not consider its merit (that is, whether the decision was the correct or
preferable decision). Accordingly, the committee previously concluded that the
fast track assessment process may be incompatible with the right to a fair
hearing.[87]
Committee comment
1.105
Consistent with the committee's previous conclusions, the preceding
analysis indicates that the measure may be incompatible with the right to a
fair hearing and the obligation to consider the best interests of the child.
Various Social Security Determinations[88]
Purpose |
Prescribes various measures
inserted into the Social Security Act 1991 and Social Security
(Administration) Act 1999 by the Welfare Reform Act 2018 to implement the
new targeted compliance framework |
Portfolio |
Social Services |
Authorising legislation |
Social Security Act 1991 |
Last day to disallow |
15 days after tabling ([F2018L00777]
and [F2018L00779] tabled in the House of Representatives 18 June, tabled in
the Senate 19 June 2018; [F2018L00783] tabled in the House of Representatives
19 June, tabled in the Senate on 20 June; [F2018L00795] tabled in the House
of Representatives 20 June, tabled in the Senate 21 June 2018) |
Rights |
Equality and
non-discrimination; social security; adequate standard of living (see Appendix
2) |
Status |
Advice only |
Background
1.106
The Social Security (Welfare Reform) Act 2018 (Welfare Reform
Act) inserted a number of new measures into the Social Security Act 1991 (Social
Security Act) and Social Security (Administration) Act 1999 (Social
Security (Administration) Act). The committee previously considered these
measures in its human rights assessment of the Welfare Reform Act in Report
8 of 2017 and Report 11 of 2017[89]
1.107
The determinations prescribe certain matters for the purposes of the
measures introduced by the Welfare Reform Act.
Reasonable excuse: drug and alcohol misuse and dependency
1.108
The Social Security (Administration Act), as amended by the Welfare
Reform Act, provides that where a recipient of certain social security payments
fails to meet a 'mutual obligation requirement',[90] the secretary must determine that the person's participation payment[91] is suspended for a period.[92] Additionally, if the secretary is satisfied that the person has persistently
committed mutual obligation failures,[93] and does not have a 'reasonable excuse'[94] for the relevant failure, the person's payment may be reduced or cancelled.[95] The secretary also has the power to make a legislative instrument setting out
matters that must and must not be taken into account when deciding whether a
person has a 'reasonable excuse' for committing a participation failure.[96]
1.109
The Social Security (Administration) (Reasonable Excuse – Participation
Payments) Determination 2018 [F2018L00779] (Reasonable Excuse
Determination) sets out the matters which the secretary must and must not take
into account when deciding whether a person has a 'reasonable excuse' for committing a mutual obligation failure.[97]
1.110
Section 5 prescribes the matters to which the Secretary must have
regard in deciding whether a person has a 'reasonable excuse', and includes
drug and alcohol dependency.[98] The secretary also retains discretion to consider other factors which may
directly prevent a person from complying with their obligations regarding a
participation payment.
1.111
Section 6 prescribes the matters which the secretary must not take
into account in deciding whether a person has a reasonable excuse for failing
to comply with their obligations. Relevantly, section 6(4) provides that
the secretary must not take into account drug or alcohol misuse or dependency,
if the person (other than a declared program participant) has previously relied
on this as a reasonable excuse,[99] and has refused to participate in treatment to which they have been referred.[100] The second component is subject to a number of exceptions, relating to:
- the availability of appropriate treatment;[101]
-
the availability of the prospective participant;[102] and
- whether the prospective participant has previously completed the
same or substantially similar treatment and, in the opinion of a suitably
qualified medical professional, would not benefit from further treatment of the
same kind.[103]
Compatibility of the measure with
the right to social security and the right to an adequate standard of living
1.112
The previous human rights analysis of the Welfare Reform Act considered
that narrowing the circumstances in which a person may rely upon their drug and
alcohol misuse or dependency as a reasonable excuse engaged a number of human
rights. While the previous human rights analysis considered that the measure
appeared to be compatible with some of these rights,[104] it concluded that it was
likely to be incompatible with the rights to social security and an adequate
standard of living.[105] This was because:
The inability of a person to cite their drug or alcohol dependency
as a 'reasonable excuse' may have significant negative financial consequences
on a person through the suspension or cancellation of their social security, or
through financial penalties. It is unlikely that this potentially significant
financial consequence, which may impair a person's ability to afford basic
necessities, will be considered proportionate to the legitimate objectives of
the measure as a matter of international human rights law.[106]
1.113
By prescribing the circumstances when drug and alcohol dependency must
and must not be taken into account and limiting the circumstances in which drug
and alcohol dependency may be a 'reasonable excuse', the Reasonable Excuse
Determination gives effect to this measure. The Determination does not include
any additional measures to address the concerns raised in the initial human
rights analysis.
Committee comment
1.114
The Reasonable Excuse Determination gives effect to a measure in
the Welfare Reform Act that narrows the circumstances in which a person's drug
and alcohol dependency may be taken into account as a 'reasonable excuse' for
committing a participation failure.
1.115
Consistent with the committee's previous conclusions in Report
11 of 2017, the measures in the determination are likely to be incompatible
with the right to social security and the right to an adequate standard of
living.
Penalties for persistent mutual obligation failures
1.116
As noted above, section 42AF of the Social Security
(Administration) Act (introduced by the Welfare Reform Act) provides that the
secretary must reduce or cancel a person's participation payment (other than a
declared program participant) if the secretary is satisfied that a person has
persistently committed a mutual obligation failure and does not have a
reasonable excuse for the failure.[107]
1.117
The Non-Compliance Determination sets out the circumstances in which the
Secretary must or must not be satisfied that a person has persistently
committed mutual obligation failures.[108] It also sets out the matters about which the secretary must be satisfied to
reduce or cancel a person's participation payment.[109] The Reasonable Excuse Determination, discussed above, sets out the matters
which the secretary must and must not take into account in deciding whether a
person has a reasonable excuse for committing mutual obligation failures.[110]
Compatibility of the measure with the rights to social security and an
adequate standard of living
1.118
The previous human rights analysis of the Welfare Reform Act raised concerns
about the compatibility of section 42AF with the rights to social security and
an adequate standard of living.[111] The previous analysis noted that the prescription of what does and does not
constitute a persistent mutual obligation failure by way of legislative
instrument could 'assist to ensure that a non-payment penalty is only applied
to objective criteria', which in turn could 'assist with the proportionality'
of the measure.[112] However, the previous analysis considered that, without a requirement in the
relevant instruments that the secretary must be satisfied of a person's
capacity to meet their basic necessities prior to imposing a penalty, the
measure would be likely to be incompatible with the right to social security
and an adequate standard of living.[113]
1.119
The committee concluded that the measure in section 42AF of the
Welfare Reform Bill was likely to be incompatible with the right to social
security, noting that there could be circumstances in which a person whose
participation payment has been reduced or cancelled due to persistent mutual
obligation failures without a reasonable excuse would be unable to meet their
basic necessities.[114]
1.120
Neither the Non-Compliance Determination nor the Reasonable Excuse
Determination requires the secretary to have regard to whether a person would
be able to meet basic necessities in determining whether a person's payment
must be reduced or cancelled. Further, there do not appear to be any additional
safeguards which would apply to allow a person to otherwise meet basic
necessities. Accordingly, the determinations do not alter the committee's
conclusions on the compatibility of the penalties for persistent mutual
obligation failures in Report 11 of 2017.[115]
Committee comment
1.121
The Non-Compliance Determination and the Reasonable Excuse
Determination do not require the secretary to be satisfied of a person's
capacity to meet their basic necessities in determining that they have
committed persistent mutual obligation failures without a reasonable excuse
under section 42AF of the Welfare Reform Act.
1.122
Consistent with the committee's previous conclusions in Report
11 of 2017, the measures in these determinations are therefore likely to be
incompatible with the right to social security and the right to an adequate
standard of living.
Bills not raising human rights concerns
1.123
Of the bills introduced into the Parliament between 13 and 16 August,
the following did not raise human rights concerns (this may be because the bill
does not engage or promotes human rights, and/or permissibly limits human
rights):
- Customs Amendment (Pacific Agreement on Closer Economic Relations
Plus Implementation) Bill 2018;
- Customs Tariff Amendment (Pacific Agreement on Closer Economic
Relations Plus Implementation) Bill 2018;
- Farm Household Support Amendment (Temporary Measures) Bill 2018;
- Intelligence Services Amendment (Enhanced Parliamentary Oversight
of Intelligence Agencies) Bill 2018;
-
Offshore Petroleum and Greenhouse Gas Storage Amendment
(Reporting of Gas Reserves) Bill 2018;
- Social Services Legislation Amendment (Student Reform) Bill 2018;
and
- Tobacco Plain Packaging Amendment Bill 2018.
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