Chapter 3
Work of the committee in 2013-14
3.1 This chapter provides information about the work of the committee during
2013-14, including the major themes and scrutiny issues arising from the
legislation examined by the committee.
Legislation considered
3.2
During the reporting period, the committee assessed a large number of
bills and legislative instruments in order to determine their compatibility
with Australia's international human rights obligations.
3.3
Table 3.1 shows the total number of bills, Acts and legislative
instruments considered, as well as how many in each category were found to
raise no human rights issues, or raised human rights issues in relation to
which the committee made advice-only comments to, or required a response from,
the legislation proponent.
Table 3.1: Legislation
considered during the reporting period
|
|
Total considered
|
No human rights issues
|
Advice-only comment
|
Response required
|
|
Bills and Acts
|
191
|
110
|
10
|
71
|
|
Legislative
instruments
|
1954
|
1887
|
30
|
37
|
Reports tabled during the period
3.4
The committee tabled eight reports during the reporting period, from the
First Report of the 44th Parliament to Eighth Report of
the 44th Parliament.[1]
Commonly engaged rights
3.5
The most commonly engaged human rights identified in legislation during
this period were spread across both civil and political rights and economic,
social and cultural rights. These were:
-
rights to and at work;[2]
-
right to a fair trial;[3]
-
right to privacy;[4]
-
right to a fair hearing;[5]
-
right to social security;[6]
-
right to an adequate standard of living;[7]
and
-
right to health.[8]
3.6
During the reporting period, the above seven rights accounted for 58 per
cent of rights engaged within both primary and delegated legislation.
3.7
Figure 3.1 shows the breakdown of human rights engaged by the legislation
examined by the committee in the reporting period.
Figure
3.1: Human rights engaged by legislation in 2013-14
Major themes
3.8
Three significant areas of legislative activity in the reporting period
were in the areas of industrial relations, migration, and social security. The
committee's examination of legislation relating to these policy areas
highlighted a number of significant intersections with Australia's
international human rights obligations.
Industrial relations legislation
3.9
The committee examined a series of bills seeking to implement the
government's industrial relations policy: the Fair Work (Registered
Organisations) Amendment Bill 2013; the Building and Construction Industry
(Improving Productivity) Bill 2013 and the Building and Construction Industry
(Consequential and Transitional Provisions) Bill 2013; and the Fair Work
Amendment Bill 2014.[9]
3.10
The measures in these bills included the establishment or
re-establishment of bodies with investigative and information-gathering powers
to regulate registered organisations (including unions) and persons engaged in
the building and construction industry, and measures relating to industrial
action and right of entry for unions.
3.11
Human rights commonly engaged by these bills included: the right to work
and rights at work; the right to freedom of association (including the right to
form and join trade unions); the right to a fair trial (including the right to
be presumed innocent); the right to privacy; the right against
self-incrimination; the right to freedom of assembly; the right to freedom of
expression; the right to equality and non-discrimination; and the right to a
fair hearing.
3.12
The committee generally agreed with the statements of compatibility for
the bills that the measures being implemented pursued legitimate objectives for
the purposes of international human rights law, and were rationally connected
to those objectives (that is, the measures appeared likely to achieve their
stated objectives).
3.13
However, the committee's assessments raised significant concerns as
to the proportionality of the measures, and particularly whether they
represented the least rights restrictive way of achieving their stated
objectives. In particular, the coercive information-gathering and enforcement
powers conferred on industrial oversight bodies gave rise to significant human
rights concerns because of theiÂr breadth, their application to civil
wrongdoing as well as serious criminal offences, the limited procedural
safeguards restricting and monitoring their use, the abrogation of the right of
persons not to incriminate themselves, and the significant maximum penalties
available for a failure to cooperate.
Migration legislation
3.14
The committee examined a significant number of bills and legislative
instruments seeking to implement the government's migration policies, including
changes to the handling of applications for protection and humanitarian visas,
the mandatory detention regime, and the re-introduction of temporary protection
visas.[10]
3.15
Human rights engaged by this legislation included the right to humane
treatment in detention; the right to equality and non-discrimination; the right
not to be arbitrarily detained; the obligation of non-refoulement; the
obligation to consider the best interests of the child; the right to protection
of the family; the right to freedom of movement; the right to a fair hearing;
the right to social security and an adequate standard of living; the right to
education; and the right to work.
3.16
While international law does not provide a general right of entry to a country
for persons who are non-citizens or permanent residents, Australia has
obligations under international human rights law to any person within its
jurisdiction, regardless of citizenship. In the migration law context,
non-refoulement obligations towards non-citizens are particularly important as
they are absolute and may not be subject to any limitations. In numerous instances, the
committee emphasised that effective and impartial review by a court or tribunal
of decisions to deport or remove a person, including merits review in the
Australian context, is integral to complying with non-refoulement obligations.[11]
3.17
The committee's assessments of legislation in this area also frequently
emphasised that limitations on rights must be prescribed by law and be sufficiently
clear to meet the quality of law test. Similarly, safeguards to ensure these
limitations are proportionate should be included in legislation, and not left
to administrative or ministerial discretion.[12]
3.18
The committee also examined whether legislative measures in this area disproportionately
affected vulnerable groups, such as women, children or refugees. Such impacts
may arise in the implementation of migration policy especially where distinct
legal arrangements are in place for different categories of persons, such as
classes of visa holders. An example of this was the Migration Amendment
(Bridging Visas—Code of Behaviour) Regulation 2013 [F2013L02102] and Code of
Behaviour for Public Interest Criterion 4022—IMMI 13/155 [F2013L02105], which
implemented a code of conduct applying to certain visa holders.[13]
Social security legislation
3.19
The committee examined a significant number of bills seeking to
implement the government's social security polices, including: the Social
Services and Other Legislation Amendment Bill 2013; Social Security Legislation
Amendment (Green Army Programme) Bill 2014; Social Security Legislation
Amendment (Increased Employment Participation) Bill 2014; Paid Parental Leave
Amendment Bill 2014 and Family Assistance Legislation Amendment (Child Care
Measures) Bill 2014.[14]
3.20
These bills sought to give effect to a range of measures affecting
social security benefits, in many cases introducing targeted measures with the
intention of reducing public expenditure on social security payments. Along
with the right to social security, this legislation engaged the right to an
adequate standard of living, the right to work and to just and favourable
conditions of work, and the right to equality and non-discrimination.
3.21
In seeking to reduce levels of social security entitlements and
payments—for example, by pausing indexation on certain social security
payments—many of the measures in the bills were properly characterised as
retrogressive measures for the purposes of international human rights law.[15]
While permissible, retrogressive measures are required by international human
rights law to be justified as being in pursuit of a legitimate objective, and
being rationally connected and proportionate to, achieving that objective.
3.22
In this respect the committee has consistently recognised that under
international human rights law budgetary constraints are capable of providing a
legitimate objective for the purpose of justifying reductions in government
support that impact on economic, social and cultural rights. However, the
committee has routinely requested further information where it is not clear that
such measures are proportionate to their stated objective, and particularly where
vulnerable groups, such as women, children or indigenous people, would appear
to be affected.
3.23
The committee's requests for information from ministers in relation to
measures implementing social security policy also routinely seek information as
to whether less rights restrictive measures to achieve particular objectives
were available and, if so, why they were not adopted.
Scrutiny issues
3.24
During the reporting period, the committee identified a number of issues
that posed particular challenges for the committee, as well as for legislation
proponents and departments. These included timeliness; the quality of
statements of compatibility; human rights scrutiny of appropriation bills;
instruments relating to the autonomous sanctions regime; and instruments
relating to the Stronger Futures package of legislation.
Timeliness
3.25
The committee seeks to conclude its consideration of bills while they
are still before the Parliament, and its consideration of legislative instruments
within the timeframe for disallowance (usually 15 sitting days). In both cases,
the committee's approach seeks to ensure that its reports on the human rights
compatibility of legislation are available to inform the debates of both Houses
of the Parliament.
3.26
Accordingly, the responsiveness of legislation proponents to the
committee's requests for responses regarding human rights concerns is critical to
the effectiveness of the scrutiny process. However, while the committee stipulates
a deadline by which it expects a response be provided, there is no legal or
procedural requirement to ensure that a legislation proponent provides their response
in this time period.
3.27
Timeliness was a significant issue during the reporting period, with responses
from legislation proponents often not being received until well after the committee's
deadline and, on occasion, not until after the bill or timeframe for
disallowance had passed.
3.28
Responses were requested in relation to 58 bills in the reporting period
(before 30 June 2014). Only eight of these (14%) were provided to the
committee by the requested date. Responses in relation to 40 bills (69%) were
provided to the committee after the requested date. The remaining 10 bills
(17%) still had responses outstanding at 30 June 2014 (see figure 3.2).
3.29
Responses were requested in relation to 44 legislative instruments in
the reporting period. No responses relating to these instruments were provided
to the committee by the requested date. All responses were provided to the
committee after the requested date; there were no responses outstanding at
30 June 2014 (see figure 3.2).
Figure
3.2 Percentage of responses received by due date
Statements of compatibility
3.30
The quality of statements of compatibility continued to improve over the
reporting period.
3.31
In many cases, statements of compatibility provided sufficient
information on proposed measures limiting human rights for the committee to
conclude its examination without requesting further information from the
legislation proponent. For example, the executive summary to the First
Report of the 44th Parliament noted that the discussion of civil
penalties and criminal process rights in the statement of compatibility
accompanying the Clean Energy Legislation (Carbon Tax Repeal) Bill 2013 was particularly
useful in assisting the committee with its task.[16]
3.32
However, a significant number of bills and legislative instruments
during the reporting period failed to provide sufficient information or
supporting evidence to justify potential limitations of human rights. In both
its First Report of the 44th Parliament and Second Report
of the 44th Parliament, the committee observed that the quality
of a number of statements of compatibility fell short of the committee's
minimum expectations.[17]
In particular, the committee noted that proponents of legislation often claimed
that measures engaging human rights were 'reasonable, necessary and
proportionate' without providing any supporting analysis or empirical evidence.
3.33
Further, statements of compatibility often stated that measures did not
engage human rights where rights were clearly engaged.[18]
3.34
In a number of cases, the committee noted that additional information
provided by the legislation proponent addressed the committee's concerns, but
should have been included in the statement of compatibility for the bill or
instrument in the first instance.[19]
3.35
Where inadequacies in statements of compatibility were identified, the
committee continued its practice of sending advisory letters to legislation
proponents to provide guidance on the preparation of, and requirements for,
statements of compatibility.
Human rights scrutiny of
appropriation bills
3.36
In the 43rd Parliament the committee set out its initial
views on the human rights implications of appropriation bills, and recommended
that human rights impact assessments be expressly incorporated in portfolio
budget statements to ensure that human rights are properly reflected in the
budgetary process.[20]
3.37
The committee's dialogue with the Minister for Finance on appropriation
bills continued in the reporting period. In its Third Report of the 44th
Parliament the committee wrote to the new Minister for Finance on the
question of whether the budgetary processes should expressly take account of
human rights considerations.[21]
3.38
The minister's response was considered alongside the committee's analysis
of new appropriations bills in its Eighth Report of the 44th
Parliament. The minister considered that requiring human rights impact
statements to be included in portfolio budget statements was 'neither
practicable nor appropriate',[22]
but offered the committee a departmental briefing on aspects of appropriation
bills and their explanatory memoranda. In its concluding comments in this
report, the committee noted that further consultation was required to assess
how portfolio budget impact statements and explanatory memoranda could assist
the committee in its examination of appropriation bills for compatibility with
human rights.
Autonomous sanctions regimes
3.39
In the previous reporting period the committee considered a number of instruments
made under the Autonomous Sanctions Act 2011 and the Charter of the
United Nations Act 1945.[23]
The committee sought further information from the Minister for Foreign Affairs
as to the compatibility of the instruments with multiple human rights.
3.40
More broadly, however, the committee considered that it is necessary to
assess whether the sanctions regimes as a whole are compatible with human
rights, before it is able to assess the compatibility of individual
instruments. The committee therefore also requested that the minister comprehensively
review the autonomous sanctions regimes with respect to Australia's international
human rights obligations. The former minister responded stating that he had
instructed the Department of Foreign Affairs and Trade to carefully consider this
recommendation.
3.41
During the reporting period, the committee wrote to the new Minister for
Foreign Affairs to draw her attention to the committee's consideration of these
matters and to reiterate its request for a review in relation to the sanctions
regimes.[24]
As at the end of the reporting period, the committee had not received a
response from the minister.
3.42
Pending the minister's response, the committee continued to defer
its consideration of instruments relating to the sanctions regimes.[25]
These new instruments expanded or applied the operation of the sanctions regimes
by designating or declaring that a person or entity is subject to the sanctions
regime, or by amending the regime itself. Designating a person or entity has
the effect that the assets of
the designated person or entity are frozen. Declaring a person has the effect
of preventing that person from travelling to, entering or remaining in
Australia. Additionally, sanctions can restrict
or prevent the supply, sale or transfer or procurement of goods or services.
3.43
The broad effects of the sanctions regimes as implemented in both
primary and delegated legislation therefore engage and limit multiple human
rights. These include the right to privacy; right to a fair hearing; right to
protection of the family; right to equality and non-discrimination; right to an
adequate standard of living; right to freedom of movement; and the prohibition
against non-refoulement.
Review of Stronger Futures
legislation
3.44
During the 43rd Parliament the committee conducted an inquiry
into the Stronger Futures in the Northern Territory Act 2012 and related
legislation.[26]
The Stronger Futures measures apply to the Northern Territory and relate to
areas such as tackling alcohol abuse in Aboriginal communities; income
management; school attendance; certain land reform measures; food security
measures relating to the licensing regimes for food stores in certain areas; and
amendments relating to the extent to which customary law may be taken into
account in bail and sentencing decisions. The committee received a number of
submissions to this inquiry from various groups concerned about the human
rights compatibility of the measures.
3.45
The committee determined that a number of rights were engaged by the
measures, including the right to self-determination; right to equality and non‑discrimination;
right to equal protection before the law; right to social security; right to an
adequate standard of living; and right to privacy. The committee made a number
of findings and recommendations as to the human rights compatibility of the
legislation, and determined that it would subsequently review the measures to consider
the latest evidence as to the effectiveness and ongoing necessity of the
measures.
3.46
The new committee established at the beginning of the 44th
Parliament commenced this review in July 2014. Accordingly, during the
reporting period, the committee deferred a number of pieces of legislation on
the basis that they would be considered as part of the review.[27]
Additional work of the committee
3.47
During the reporting period the committee endeavoured to broaden public
awareness of, and engagement with, the committee, by creating a number of
resources to assist members of the public in understanding the committee's work.
3.48
The committee established an Index of bills, which lists all
bills introduced during the 44th Parliament and the action taken by
the committee. It identifies the human rights that have been engaged and the
relevant reports where the committee's full analysis may be found. The Index
of bills is useful for those who are interested in finding the committee's
analysis on a particular bill.[28]
3.49
In March 2014 the committee published a Guide to human rights,
which provides an introduction to the key human rights considered by the
committee. The Guide to human rights is discussed in more detail at
Chapter 2 of this report, and the latest version is available on the
committee's website.[29]
3.50
The committee also established a mailing list, which notifies
subscribers of the committee's work. Subscribers are notified when the
committee tables its regular scrutiny reports, as well as other reports, and
when the committee publishes new resources (such as the Guide to human
rights mentioned above).
3.51
Further, the committee began to have its work posted on social media
during this period. For example, the official parliamentary Twitter accounts
began to announce when the committee's reports had been tabled.
The Hon Philip Ruddock MP
Chair
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