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Migration Legislation Amendment (2014 Measures No. 1)
Regulation 2014 [F2014L00726]
Portfolio:
Immigration and Border Protection
Authorising
legislation: Migration Act 1958
Last day to
disallow: 26 June 2014 (Senate)
Purpose
1.1
The Migration Legislation Amendment
(2014 Measures No. 1) Regulation 2014 [F2014L00286] (the regulation) amends the
Migration Regulations 1994 and the Australian Citizenship Regulations 2007 in
relation to visa evidence charges, members of the family unit for student
visas, skills assessment validity, foreign currencies and places, substitution
of AusAID references, Australian citizenship fees and other measures, and
infringement notices.
Committee view on
compatibility
Right to privacy
1.2
Article 17 of the International
Covenant on Civil and Political Rights (ICCPR) prohibits arbitrary or unlawful
interferences with an individual's privacy, family, correspondence or home.
1.3
However, this right may be subject
to permissible limitations which are provided by law and are not arbitrary. In
order for limitations not to be arbitrary, they must seek to achieve a
legitimate objective and be reasonable, necessary and proportionate to
achieving that disclosure of information.
Releasing information concerning a person's change of
name
1.4
Schedule 6 of the regulation
amends the Citizenship Regulations 2007 in relation to information that may be
included in a notice of evidence of Australian citizenship (notice), which is a
document that may be provided by the minister as evidence of a person's Australian
citizenship. The amendment provides that the minister may list on the back of a
citizenship notice additional information about the applicant, including their
legal name at the time they acquired Australian citizenship and any other name
or date of birth in relation to which a notice has previously been given.
1.5
The committee notes that this
measure appears to limit the right to privacy, particularly in relation to
respect for personal information through the storing, use and sharing of such
information. In particular, the measure appears to reduce a person's control
over the dissemination of information about his or her personal life and, as
recognised in the statement of compatibility, potentially expose people to
risk. In this respect the statement of compatibility notes that the amendment
will enable, but not require, the specified information to be listed, because
there 'will be instances where it is not appropriate to include the details of
a notice previously given to the person, such as when doing so may endanger the
person or a person connected with them'.[1]
1.6
The committee notes that the
statement of compatibility does not provide an assessment of the human rights
compatibility of these potential limitations on the right to privacy.
1.7
The committee's usual expectation
where a right may be limited is that the statement of compatibility set out the
legitimate objective being pursued, the rational connection between the measure
and that objective, and the proportionality of the measure.
1.8
The committee notes that
information regarding the safeguards in place for the storing, use and sharing
of such information in relation to this measure is particularly relevant to the
assessment of its compatibility with human rights.
1.9
The committee therefore seeks
the advice of the Minister for Immigration and Border Protection as to whether
the ability to release information concerning a person's previous changes of
name is compatible with the right to privacy.
Rights to equality and non-discrimination
1.10
The rights to equality and
non-discrimination are guaranteed by articles 2, 16 and 26 of the International
Covenant on Civil and Political Rights (ICCPR).[2]
1.11
These are fundamental human rights
that essential to the protection and respect of all human rights. They provide
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.
1.12
For human rights purposes
'discrimination' is impermissible differential treatment among persons or
groups that result in a person or a group being treated less favourably than
others, based on one of the prohibited grounds for discrimination.[3]
1.13
Discrimination may be either direct
or indirect. Indirect discrimination may occur when a requirement or condition
is neutral on its face but has a disproportionate or unintended negative impact
on particular groups.
Impact of release for persons who have undergone sex
or gender reassignment procedures
1.14
The committee notes that the power
to disclose a person's previous name may operate to have a disproportionate
effect on, and therefore indirectly discriminate, against persons who have
undergone sex or gender reassignment procedures, to the extent that that
disclosure could potentially reveal or indicate that history. Indirect
discrimination arising in this way would amount to discrimination against
individuals on the prohibited grounds of 'other status'.
1.15
In particular, the committee notes
that the Australian Government Guidelines on the Recognition of Sex and Gender
instruct departments and agencies to 'ensure an individual's history of changes
of sex, gender or name...is recorded and accessed only when the person's history
is relevant to a decision being made'.[4]
1.16
However, the statement of
compatibility does not provide an assessment of this potential limitation on
human rights and, with reference to the guidelines cited above, does not beyond
a reference to avoiding fraud explain in what circumstances that information
may be relevant for disclosure.
1.17
The committee's usual expectation
where a right may be limited is that the statement of compatibility set out the
legitimate objective being pursued, the rational connection between the measure
and that objective, and the proportionality of the measure.
1.18
The committee therefore seeks
the advice of the Minister for Immigration and Border Protection as to whether
the ability to release information concerning a person's change of name is
compatible with the right to equality and non-discrimination.
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