New and continuing matters
1.1
This chapter provides assessments of the human rights compatibility of:
-
bills introduced into the Parliament between 9 May and 1 June 2017 (consideration of 2 bills from this period has been
deferred);[1]
-
legislative instruments received between 7 April and 11 May 2017
(consideration of 3 legislative instruments from this period has been
deferred);[2]
and
-
bills and legislative instruments previously deferred.
1.2
The chapter also includes reports on matters previously raised, in
relation to which the committee seeks further information following
consideration of a response from the legislation proponent.
Instruments not raising human rights concerns
1.3
The committee has examined the legislative instruments received in the
relevant period, as listed in the Journals of the Senate.[3]
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.
Code for the Tendering and Performance of Building Work 2016 [F2016L01859]
and Code for the Tendering and Performance of Building Work Amendment
Instrument 2017 [F2017L00132]
| Purpose |
Sets up a code of practice
that is to be complied with by persons in respect of building work as
permitted under section 34 of the Building and Construction (Improving
Productivity) Act 2016 (ABCC Act) |
| Portfolio |
Employment |
| Authorising legislation |
Building and
Construction (Improving Productivity) Act 2016 |
| Last day to disallow |
15 sitting days after
tabling (F2016L01859 tabled in the Senate 7 February 2017; F2017L00132 tabled
in the Senate 20 March 2017) |
| Rights |
Freedom of expression;
freedom of association; collectively bargain; form and join trade unions;
just and favourable conditions of work (see Appendix 2) |
| Status |
Seeking additional
information |
Background
1.6
The committee previously examined the Building and Construction
(Improving Productivity) Act 2016 (ABCC Act) which is the authorising
legislation for this instrument in its Second Report of the 44th
Parliament, Tenth Report of the 44th Parliament, Fourteenth
Report of the 44th Parliament and Thirty-fourth Report of the
44th Parliament and Report 7 of 2016.[4]
Code for tendering and performance of building work
1.7
Under section 34 of the ABCC Act the Minister for Employment is
empowered to issue a code of practice that is required to be followed by persons
in respect of building work. The instrument sets up a code of practice for all
building industry participants that seek to be, or are, involved in
Commonwealth funded building work (a code covered entity). The code of practice
contains a number of requirements which engage and limit human rights and are
discussed further below.
Content of agreements and prohibited conduct
1.8
Section 11(1) of the code of conduct provides that a code covered entity
must not be covered by an enterprise agreement in respect of building work
which includes clauses that:
-
impose or purport to impose limits on the right of the code
covered entity to manage its business or to improve productivity;
-
discriminate, or have the effect of discriminating against
certain persons, classes of employees, or subcontractors; or
-
are inconsistent with freedom of association requirements set out
in section 13 of the code of practice;
1.9
Section 11 (3) further provides that clauses are not permitted to be
included in the enterprise agreement in relation to a range of matters
including the number of employees, consultation on particular matters, the
engagement of particular classes of staff, contractors and subcontractors,
casualisation and the type of contracts to be offered, redundancy,
demobilisation and redeployment, loaded pay, allocation of work to particular
employees, external monitoring of the agreement, encouraging, discouraging or
supporting people being union members, when and where work can be performed,
union access to the workplace beyond what is provided for in legislation,
granting of facilities to be used by union members, officers or delegates.
1.10
Section 11A additionally provides that code covered entities must not be
covered by enterprise agreements that purport to remedy or render ineffective
other clauses that are inconsistent with section 11.
1.11
The effect of a failure to meet the requirements of section 11 by a code
covered entity is to render the entity ineligible to tender for, or be awarded,
Commonwealth funded work.
Compatibility of the measure with
the right to collectively bargain and the right to just and favourable
conditions of work
1.12
The right to freedom of association includes the right to collectively
bargain without unreasonable and disproportionate interference from the state.
The right to just and favourable conditions of work includes the right to safe
working conditions. These rights are protected by the International Covenant on
Civil and Political Rights (ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR).[5]
1.13
The interpretation of these rights is informed by International Labour
Organization (ILO) treaties, including the ILO Convention of 1948 concerning
Freedom of Association and Protection of the Right to Organize (ILO Convention
No. 87) and the ILO Convention of 1949 concerning the Right to Organise
and Collective Bargaining (ILO Convention No. 98), which protects the right of
employees to collectively bargain for terms and conditions of employment.[6] The principle of
'autonomy of bargaining' in the negotiation of collective agreements is an
'essential element' of Article 4 of ILO Convention No. 98 which envisages
that parties will be free to reach their own settlement of a collective
agreement without interference.[7]
1.14
Providing that certain code covered entity employers cannot be awarded
Commonwealth funded work if they are subject to an enterprise agreement
containing a range of terms is likely to act as a disincentive for the
inclusion of such terms in enterprise agreements. The measure is likely to have
a corresponding restrictive effect on the scope of negotiations on a broad
range of matters including those that relate to terms and conditions of
employment and how work is performed. As such, the measure interferes with the
outcome of the bargaining process and the inclusion of particular terms in
enterprise agreements. Accordingly, the measure engages and limits the right to
just and favourable conditions of work and the right to collectively bargain.
1.15
Measures limiting the right to freedom of association including the
right to collectively bargain may be permissible providing certain criteria are
satisfied. The right to collectively bargain may only be subject to limitations
that are necessary to protect the rights or reputations of others, national
security, public order (ordre public),[8]
or public health or morals. Generally, to be capable of justifying a limit on
human rights, the measure must address a legitimate objective, be rationally
connected to that objective and be a proportionate way to achieve that
objective.[9]
Further, Article 22(3) of the ICCPR and article 8 of ICESCR expressly provide
that no limitations are permissible on this right if they are inconsistent with
the guarantees of freedom of association and the right to collectively organise
contained in the ILO Convention No. 87.
1.16
The ILO's Committee on Freedom of Association (CFA Committee), which is
a supervisory mechanism that examines complaints about violations of the right
to freedom of association and the right to collectively bargain, has stated
that 'measures taken unilaterally by the authorities to restrict the scope of
negotiable issues are often incompatible with Convention No. 98'.[10] The CFA
Committee has noted that there are some circumstances in which it might be
legitimate for a government to limit the outcomes of a bargaining process,
stating that 'any limitation on collective bargaining on the part of the
authorities should be preceded by consultations with the workers' and
employers' organizations in an effort to obtain their agreement.'[11]
1.17
In relation to the limitation that section 11 imposes on the right to
collectively bargain, the statement of compatibility argues:
...the limitation is reasonable, necessary and proportionate in
pursuit of the legitimate objective of seeking to ensure that enterprise
agreements are not used to limit the ability of code covered entities to manage
their businesses efficiently or restrict productivity improvements in the
building and construction industry more generally.[12]
1.18
Limited information is provided in the statement of compatibility as to
whether the stated objective addresses a pressing and substantial concern such
that it may be considered a legitimate objective for the purpose of
international human rights law or whether the measure is rationally connected
to (that is, effective to achieve) that stated objective.
1.19
Further, no information is provided about the proportionality of the
measure. In this respect it is noted that section 11 imposes practical
restrictions on the inclusion of a very broad range of matters relating to terms
and conditions of employment in enterprise agreements. It is noted that section
11(1)(a) is particularly broad and provides a practical restriction on the
inclusion of a clause in an enterprise agreement which imposes or purports to
impose limits on the right of the code covered entity to manage its business or
to improve productivity. This clause raises concerns for it may be understood
to cover many matters that are usually the subject of enterprise agreements
such as ordinary working hours, overtime, rates of pay and any types of work
performed.
1.20
Additionally, the ILO Committee of Experts on the Application of
Conventions and Recommendations (CEACR), which is another supervisory
mechanism, has recently reported on Australia's compliance with the right to
collectively bargain in respect of matters which will also be covered by
section 11. In relation to restrictions on the scope of collective bargaining
and bargaining outcomes, the committee noted that 'parties should not be
penalized for deciding to include these issues in their negotiations' and
requested that Australia review such matters 'with a view to removing these
restrictions on collective bargaining matters'.[13]
1.21
The CFA Committee has also raised concerns in relation to similar
measures previously enacted by Australia under the Building and Construction
Industry Improvement Act 2005 and stated that:
The Committee recalls that the right to bargain
freely with employers with respect to conditions of work constitutes an
essential element in freedom of association, and trade unions should have the
right, through collective bargaining or other lawful means, to seek to improve
the living and working conditions of those whom the trade unions represent. The
public authorities should refrain from any interference, which would restrict
this right or impede the lawful exercise thereof. Any such interference would
appear to infringe the principle that workers’ and employers’ organizations
should have the right to organize their activities and to formulate their
programmes... The Committee considers that the matters which might be subject to
collective bargaining include the type of agreement to be offered to employees
or the type of industrial instrument to be negotiated in the future, as well as
wages, benefits and allowances, working time, annual leave, selection criteria
in case of redundancy, the coverage of the collective agreement, the granting
of trade union facilities, including access to the workplace beyond what is
provided for in legislation etc.; these matters should not be excluded from the
scope of collective bargaining by law, or as in this case, by financial
disincentives and considerable penalties applicable in case of
non-implementation of the Code and Guidelines.[14]
1.22
Concerns about restrictions Australia has imposed on the right to
freedom of association and the right to collectively bargain have also been
raised by the United Nations Committee on Economic, Social and Cultural Rights
in its Concluding Observations on Australia.[15]
Such comments from supervisory mechanisms were not addressed in the statement
of compatibility. Addressing such matters in the statement of compatibility
would generally be of assistance to the committee's task of assessing the human
rights compatibility of legislation.
1.23
The committee has also previously commented on other measures which
engage and limit these rights and raised concerns.[16]
Committee comment
1.24
The preceding analysis identifies that the measure engages and
limits the right to freedom of association, the right to collectively bargain,
and the right to just and favourable conditions of work; and raises questions
as to its compatibility with these rights. The statement of compatibility has
not sufficiently justified these limitations. Accordingly, the committee seeks
the advice of the Minister for Employment as to:
-
whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective;
-
whether the limitation is a reasonable and proportionate
measure to achieve that objective (including findings by relevant international
supervisory mechanisms about whether the limitation is permissible);
-
whether consultation has occurred with the relevant workers'
and employers' organisations in relation to the measure; and
-
the government's response to the previous comments and
recommendations made by international supervisory mechanisms including whether
the government agrees with these views.
Prohibiting the display of particular signs and union logos, mottos or
indicia
1.25
Section 13(2)(b)-(c) provides that the code covered entity must ensure
that 'no ticket, no start' signs, or similar are not displayed and signs that
seek to 'vilify or harass employees who participate, or do not participate, in
industrial activities are not displayed'.
1.26
Section 13(2)(j) provides that union logos, mottos or indicia are not
applied to clothing, property or equipment supplied by, or which provision is
made by, the employer or any other conduct which implies that membership of a
building association is anything other than an individual choice for each
employee.
Compatibility of the measure with
the right to freedom of expression
1.27
The right to freedom of opinion and expression is protected by article
19 of the ICCPR. The right to freedom of expression extends to the
communication of information or ideas through any medium, including written and
oral communications, the media, public protest, broadcasting, artistic works
and commercial advertising.[17]
1.28
The right to freedom of expression may be subject to limitations that
are necessary to protect the rights or reputations of others, national
security, public order (ordre public), or public health or morals. In
order for a limitation to be permissible under international human rights law,
limitations must be prescribed by law, pursue a legitimate objective, be
rationally connected to the achievement of that objective and be a
proportionate means of achieving that objective.[18]
1.29
By providing certain signs cannot be displayed and providing that union
logos, insignias and mottos are not to be applied to certain clothing or
equipment, the measures engage and limit the right to freedom of expression.[19]
The statement of compatibility acknowledges that the right to freedom of
expression is engaged and identifies the following as the objective of the
measures:
The intimidation of employees to join or not join a building
association is clearly an unacceptable infringement on their right to freedom
of association...
The right to freedom of association can also be infringed by
the presence of building association logos, mottos or indicia on clothing,
property or equipment that is supplied by, or which provision is made for by,
the code covered entity...
...pursuing the legitimate policy objective of protecting the
rights and freedoms of employees in the building and construction industry to
choose to become, or not become, a member of a building association and
ensuring that this choice does not impact on an employee's ability to work on a
particular site.[20]
1.30
The statement of compatibility provides limited information about the
importance of these objectives. However, to be capable of justifying a proposed
limitation on human rights, a legitimate objective must address a pressing or
substantial concern and not simply seek an outcome regarded as desirable or
convenient.[21]
1.31
Furthermore, the reasoning articulated in the statement of
compatibility does not accurately reflect the scope of freedom of association
under international law. The scope of the right to freedom of association in a workplace
under international law focuses on a positive right to associate rather than a
right not to associate.[22]
ILO supervisory mechanisms have found that under Convention 87 it is a matter
for each nation state to decide whether it is appropriate to guarantee the ability
of workers not to join a union.[23]
As a matter of international human rights law, the display of particular union
signs, union logos, mottos or indicia on clothing does not appear to 'infringe'
the right to freedom of association but rather constitutes an element of this
right.[24]
1.32
Further, it is unclear whether the measure is rationally connected to
(that is, effective to achieve) the stated objective of 'protecting...employees
in the building and construction industry to choose to become, or not become, a
member of a building association [union] and ensuring that this choice does not
impact on an employee's ability to work on a particular site'.
1.33
The statement of compatibility provides the following information on
whether the measure prohibiting certain signs (contained in section
13(2)(b)-(c)) is rationally connected to the stated objective:
...intimidation can take the form of signs implying that
employees who are not members of a building association cannot work on the
building site or, where such employees are present, seek to intimidate, harass
or vilify such employees...
1.34
However, the statement of compatibility does not address how the display
of specific signs rises to the level of intimidation, harassment or
vilification. Without further information it is unclear that the removal of
such signs would be effective in achieving the stated objective of protecting
the choice to become, or not become, a member of a union.
1.35
The statement of compatibility further provides the following
information on whether the measure prohibiting union logos, mottos or indicia on
certain clothing, property or equipment (contained in section 13(2)(j)) is
rationally connected to the stated objective:
... [union] signage on clothing or equipment that is supplied
by a code covered entity carries a strong implication that membership of the
building association in question is being actively encouraged or endorsed by
the relevant employer and is against the principle that employees should be
free to choose whether to become or not become a member of a building
association.[25]
1.36
It is acknowledged that the explanatory statement outlines the findings
of the final report of the Royal Commission into Trade Union Governance and
Corruption (the Heydon Royal Commission) including general issues of
intimidation in the building and construction industry.[26]
However, without further information, it is unclear how merely viewing, for
example, a union logo on clothing or equipment would prevent an employee who
did not wish to join the relevant union from their choice to do so or from
working on a particular site. Further, it is unclear that such signs and logos
would necessarily be seen as an employer endorsement of joining the union, and
even if so, that this would affect an employee's freedom of choice or ability
to decide not to join the union.
1.37
In relation to the proportionality of the measure prohibiting union
logos, mottos or indicia on certain clothing, property or equipment (contained
in section 13(2)(j)), the statement of compatibility provides that:
This prohibition only applies to clothing, property or
equipment that is supplied by, or which provision is made for by, the code
covered entity. Section 13 would not prevent these items from being applied to
clothing, property or equipment that was supplied by other individuals at the
site or by the relevant building association. [27]
1.38
No further information is provided in the statement of compatibility
about proportionality of the measures including any relevant safeguards in
relation to the right to freedom of expression.
Committee comment
1.39
The preceding analysis raises questions as to the compatibility of
the measures with the right to freedom of expression. Accordingly, the
committee seeks the advice of the Minister for Employment as to:
-
whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective;
-
whether the limitation is a reasonable and proportionate
measure to achieve that objective (including findings by relevant international
supervisory mechanisms about whether the limitation is permissible); and
-
whether consultation has occurred with the relevant workers'
and employers' organisations in relation to the measure.
Compatibility of the measure with
the right to freedom of association and the right to form and join trade unions
1.40
Article 22 of the ICCPR guarantees the right to freedom of association
generally, and also explicitly guarantees everyone 'the right to form trade
unions for the protection of [their] interests.' Article 8 of the ICESCR also
guarantees the right of everyone to form trade unions. As set out above, the
right to freedom of association may only be subject to limitations that are
necessary to protect the rights or reputations of others, national security,
public order (ordre public), or public health or morals. Generally, to
be capable of justifying a limit on human rights, the measure must address a
legitimate objective, be rationally connected to that objective and be a
proportionate way to achieve that objective.[28]
Further, no limitations on this right are permissible if they are inconsistent
with the rights contained in ILO Convention No. 87.[29]
1.41
As noted above, the understanding of the right to freedom of association
expressed in the statement of compatibility and the code of conduct does not
fully reflect the conception of this right as a matter of international human
rights law. The ILO supervisory mechanisms have noted, for example, that 'the
prohibition of the placing of posters stating the point of view of a central
trade union organization is an unacceptable restriction on trade union
activities.'[30]
As the measures restrict communication about union membership, including
joining a union, the measures engage and may limit the right to freedom of
association. This potential limitation was not addressed in the statement of
compatibility.
Committee comment
1.42
The committee notes that the preceding analysis identifies that
the measure engages and may limit the right to freedom of association. The
committee therefore seeks the advice of the minister as to:
-
whether the measure is aimed at achieving a legitimate
objective for the purposes of human rights law;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective; and
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective.
Electoral and Other Legislation Amendment Bill 2017
| Purpose |
Seeks to amend various Acts
in relation to electoral, broadcasting and criminal matters to: amend
authorisation requirements in relation to political, electoral and referendum
communications; replace the current criminal non-compliance regime with a
civil penalty regime to be administered by the Australian Electoral
Commission; amend the Criminal Code Act 1995 to criminalise conduct
amounting to persons falsely representing themselves to be, or to be acting
on behalf of, or with the authority of, a Commonwealth body; and create a new
aggravated offence where a person engages in false representation |
| Portfolio |
Special Minister of State |
| Introduced |
House of Representatives,
30 March 2017 |
| Rights |
Freedom of expression; fair
trial; criminal process; presumption of innocence (see Appendix 2) |
| Status |
Seeking additional
information |
Requirement to authorise and notify particulars in respect of electoral
matters and referendum matters
1.43
Proposed section 321D would amend the Commonwealth Electoral Act 1918
(Electoral Act) to provide that communications about 'electoral matters' on
behalf of particular entities (disclosure entities) are required to be
authorised and would impose a requirement to notify particulars such as the
entity's name, address and the person who has authorised the communication.[31]
Under proposed section 321D, subject to exceptions, all types of communication
fall within the authorisation and notification requirements including, for
example, printed material, leaflets, text messages, voice messages, telephone
calls and conversations in the course of door-knocking.[32]
1.44
'Electoral matter' is currently defined in sections 4(1) and 4(9) of the
Electoral Act. Section 4(1) currently provides that 'electoral matter' means a 'matter
which is intended or likely to affect voting in an election'. The proposed
legislation would amend section 4(9) to provide that a matter is taken to be
intended or likely to affect voting in an election if it contains an express or
implicit comment on: the election; or a political party, candidate or group of
candidates in the election; an issue submitted to, or otherwise before, the
electors in connection with the election.
1.45
A 'disclosure entity' is defined under proposed section 321B as:
-
a registered political party;
-
current members of parliament and current and former candidates (for
the previous 4 years for candidates for election to the House of
Representatives or 7 years for candidates for election to the Senate);
-
an associated entity (defined under Part XX of the Electoral Act
to include unions that pay affiliation fees to political parties and organisations
that are set up as fundraising vehicles by political parties);
-
individuals or organisations who are required, or have been
required in previous financial years, to submit returns to the Australian
Electoral Commission because they have donated to a party or a candidate.
1.46
Proposed sections 321D(3)-(4) provide for exceptions to the
authorisation requirements for certain types of communications (including, for
example, clothing or anything that is designed to be worn; reporting of the news;
communication for satire; academic or artistic purposes; and personal or
internal communications).
1.47
A failure to comply with the new authorisation requirements is a civil
penalty provision of 120 penalty units (currently $21,600) for an individual.
1.48
Proposed Part IX, section 110C applies similar provisions in relation to
referendum matters (defined as a matter intended or calculated to affect the
result of a referendum).[33]
Compatibility of the measure with
the right to freedom of expression
1.49
The right to freedom of opinion and expression is protected by article
19 of the International Covenant on Civil and Political Rights (ICCPR). The
right to freedom of expression extends to the communication of information or
ideas through any medium, including written and oral communications, the media,
public protest, broadcasting, artistic works and commercial advertising.[34]
1.50
By expanding authorisation and notification requirements in relation to
communication about electoral and referendum matters, the measure imposes a
practical limitation on the right to freedom of expression. By requiring the
statement of certain particulars including, for example, the address of the
entity, the relevant town or city of the entity and the name of the natural
person responsible for giving effect to the authorisation, the measure imposes
a restriction or burden on the form of communication.[35]
1.51
The statement of compatibility acknowledges that the measure engages and
limits the right to freedom of expression but argues that this limitation is
permissible.[36]
In relation to the objectives of the measure, the statement of compatibility
notes:
There is a strong public interest in ensuring that voters are
aware of who is communicating to them without adversely impacting public debate.
These authorisation requirements facilitate transparency and public confidence
in Australia's electoral processes. They allow voters to assess the credibility
of the information they rely on when forming their political judgment and
selecting their representatives in the Parliament.
Ultimately, this Bill facilitates free and informed voting at
elections, an object which is essential to Australia's system of representative
democracy...the Bill's restrictions on anonymous electoral communications
supports the right of participants in public debate to protection against
unlawful attacks on reputation by providing key information necessary to
commence appropriate civil action under Australia’s defamation laws.[37]
1.52
These objectives are likely to constitute legitimate objectives for the
purposes of international human rights law and the measure appears to be
rationally connected to these objectives.
1.53
In relation to the proportionality of the measure, the statement of
compatibility notes:
The Bill limits the restriction on anonymous speech to
circumstances strictly necessary to protect the public interest by providing
explicit exemptions for:
-
the reporting of news, current affairs and editorial content in
news media
-
communication solely for genuine satirical, academic or artistic
purposes
-
personal or internal communications of disclosure entities
-
opinion polls and research relating to voting intentions.
1.54
These exceptions provide important scope to freedom of expression in a
range of circumstances.
1.55
However, there remain concerns the proportionality of the measure given
the breadth of communications covered by the authorisation requirements and the
burden that the notification requirement may impose depending on the type of
communication being made. The measure applies not only to political parties but
potentially to a range of advocacy groups, interest groups, unions and civil
society organisations including those who may have a large number of
volunteers. These volunteers may be actively involved in a range of campaign activities
such as, for example, phone calls or door-knocking. Where communication
activities occur in the context of telephone calls or door-knocking, it may be
impractical to convey the required notification to each individual recipient
while still attempting to communicate about electoral matters. In the voluntary
context, it may also be potentially challenging for organisations to ensure
that volunteers notify the required particulars. As noted above, failure to
comply with section 321D(5) is a civil penalty provision of 120 penalty units.
The explanatory memorandum notes in relation to the potential effect on
individuals that:
Where a notifying entity that is not a legal entity, for
example, a citizens' group, contravenes subsection (5), subsection 321D(6)
provides that for the purposes of the Electoral Act and the Regulatory Powers
Act, each member, agent or officer (however described) of the entity who
contributed to the contravention through action or inaction in their role would
be individually responsible for not meeting the authorisation obligation of the
notifying entity as required by subsection 321D(5).[38]
1.56
This could act as a potential disincentive for some civil society or
citizens organisations to use volunteers or convey information about electoral or
referendum matters in light of the penalties to be applied. In other words, the
measure could have a particular 'chilling effect' on freedom of expression for
certain groups, individuals and volunteers. The statement of compatibility does
not address whether there will be any additional safeguards in place to ensure
that the measure is the least rights restrictive way of achieving its
objectives.
Committee comment
1.57
The preceding analysis raises questions about the compatibility
of the measure with the right to freedom of expression.
1.58
Accordingly, the committee requests the advice of the minister as
to whether the limitation is a reasonable and proportionate measure to achieve
its stated objective including (the existence of relevant safeguards and whether
the measure is the least rights restrictive way of achieving its objective
noting the potential impact on some groups and individuals including
volunteers).
Compatibility of the measure with
criminal process rights
1.59
Civil penalty provisions are dealt with in accordance with the rules and
procedures that apply in relation to civil matters (the burden of proof is on
the balance of probabilities). However, if the new civil penalty provision is
considered 'criminal' for the purposes of international human rights law, it
will engage the criminal process rights under articles 14 and 15 of the ICCPR.
1.60
The question as to whether a civil penalty might be considered to be
'criminal' for the purposes of international human rights law may be a
difficult one and often requires a contextual assessment. It is settled that a
penalty or other sanction may be 'criminal' for the purposes of the ICCPR,
despite being classified as 'civil' under Australian domestic law. The
committee's Guidance Note 2 sets out some of the key human rights
compatibility issues in relation to provisions that create offences and civil
penalties.[39]
Where a penalty is 'criminal' for the purposes of international human rights
law this does not mean that it is necessarily illegitimate or unjustified.
Rather it means that criminal process rights such as the right to be presumed
innocent (including the criminal standard of proof) and the right not to be
tried and punished twice (the prohibition against double jeopardy) apply.[40]
1.61
In relation to whether the civil penalty provision may be regarded as
criminal, the statement of compatibility states only that:
The Bill's civil penalty provisions do not constitute a
criminal penalty for the purposes of human rights law as they are not
classified as criminal under Australian law and are restricted to people in a
specific regulatory context.[41]
1.62
As set out in the committee's Guidance Note 2, as the civil
penalty provisions are not classified as 'criminal' under domestic law they
will not automatically be considered 'criminal' for the purposes of
international human rights law.
1.63
The next step in assessing whether the civil penalties are 'criminal'
under international human rights law is to look at the nature and purpose of
the penalty. A penalty is more likely to be considered 'criminal' in nature if
it applies to the public in general rather than a specific regulatory or
disciplinary context and proceedings are instituted by a public authority with statutory
powers of enforcement. In this respect it is noted that while the proposed
regime applies to regulate electoral and referendum matters, the regime could
apply quite broadly including to volunteers, such that it is unclear whether
the regime can categorically be said not to apply to the public in general. Enforcement
is to be undertaken by a public authority under the Regulatory Powers
(Standard Provisions) Act 2014.
1.64
The third step in assessing whether the penalties are 'criminal' under
international human rights law is to look at their severity. In assessing
whether a pecuniary penalty is sufficiently severe to amount to a 'criminal'
penalty, the maximum amount of the pecuniary penalty that may be imposed under
the civil provision in context is relevant. In this respect, as noted above, a
penalty of 120 penalty units (currently $21,600) is substantial. It would apply
for each breach including for each individual who contributed to the breach where
the organisation is unincorporated. These issues were not addressed in the
statement of compatibility.
Committee comment
1.65
The committee seeks the advice of the minister as to whether the
civil penalty provisions in the bill may be considered to be 'criminal' in
nature for the purposes of international human rights law (having regard to the
committee's Guidance Note 2), addressing in particular:
-
whether the nature and purpose of the penalties is such that the
penalties may be considered 'criminal';
-
whether the severity of the civil penalties that may be
imposed on individuals is such that the penalties may be considered 'criminal';
-
whether the application of the civil penalties could be
limited so as to not apply as broadly to individuals; and
-
if the penalties are considered 'criminal' for the purposes of
international human rights law, whether the measure accords with criminal
process rights (including specific guarantees of the right to a fair trial in
the determination of a criminal charge such as the presumption of innocence
(article 14(2)), the right not to incriminate oneself (article 14(3)(g)), the
right not to be tried and punished twice for an offence (article 14(7)) and a
guarantee against retrospective criminal laws (article 15(1)).
Reverse evidential burden of proof
1.66
Proposed section 150.1 of the Criminal Code would make it an offence for
a person to falsely represent that the person is, or is acting on behalf of, or
with the authority of, a Commonwealth body (and makes it a higher level offence
to do so with the intention of obtaining a gain, causing a loss, or influencing
the exercise of a public duty or function).[42]
1.67
Subsection 150.1(4) provides that if the Commonwealth body is
fictitious, these offence provisions do not apply unless a person would
reasonably believe that the Commonwealth body exists. This would appear to
provide an exception to the relevant offences.
1.68
Subsection 13.3(3) of the Criminal Code Act 1995 provides that a
defendant who wishes to rely on any exception, exemption, excuse, qualification
or justification bears an evidential burden in relation to that matter.
Compatibility of the measure with
the right to be presumed innocent
1.69
Article 14(2) of the ICCPR protects the right to be presumed innocent
until proven guilty according to law. Generally, consistency with the
presumption of innocence requires the prosecution to prove each element of a
criminal offence beyond reasonable doubt. Provisions that reverse the burden of
proof and require a defendant to disprove, or raise evidence to disprove, one
or more elements of an offence, engage and limit this right.
1.70
Reverse burden offences will not necessarily be inconsistent with the
presumption of innocence provided that they are within reasonable limits which
take into account the importance of the objective being sought and maintain the
defendant's right to a defence. In other words, such provisions must pursue a
legitimate objective, be rationally connected to that objective and be a
proportionate means of achieving that objective.
1.71
The committee's Guidance Note 2 sets out some of the key human
rights compatibility issues in relation to provisions that create offences in
order to assist legislation proponents (including reverse burden offences).
1.72
In this case it appears that the defendant bears an evidential burden
(requiring the defendant to raise evidence about the matter). However, the
reversal of the evidential burden of proof in proposed section 150.1(4) has not
been addressed in the statement of compatibility. In this instance, the
proposed offence appears to require the defendant to raise evidence that
suggests a reasonable possibility that 'a person would reasonably believe that
the Commonwealth body exists'. This seems to be an objective fact and not one
that is peculiarly within the knowledge of the defendant. Accordingly, it
appears that the limitation may not be proportionate.
Committee comment
1.73
The committee draws to the attention of the minister its Guidance
Note 2 which sets out information specific to reverse burden offences.
1.74
The committee requests the advice of the minister as to:
-
whether the reverse burden offence is aimed at achieving a
legitimate objective for the purposes of international human rights law;
-
how the reverse burden offence 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.
Higher Education Support Legislation Amendment (A More Sustainable,
Responsive and Transparent Higher Education System) Bill 2017
| Purpose |
Seeks to introduce reforms
to the funding, provision and administration of higher education in Australia |
| Portfolio |
Education and Training |
| Introduced |
House of representatives,
11 May 2017 |
| Rights |
Education; equality and
non-discrimination (see Appendix 2) |
| Status |
Seeking additional
information |
Background
1.75
The committee has previously commented on proposed reforms to the funding
of higher education in its Twelfth Report of the 44th Parliament,
Eighteenth Report of the 44th Parliament and its Twenty-second
Report of the 44th Parliament.[43]
Decrease in funding for commonwealth supported students in higher education
1.76
Schedule 1 of the bill seeks to decrease the amount of commonwealth
funding or subsidies for commonwealth supported students at universities and
increase the amount of student contribution to higher education funding.[44]
From 1 January 2018 a 2.5 percent efficiency dividend will be applied to
Commonwealth contribution amounts in each of 2018 and 2019. Student
contribution amounts for commonwealth supported students will increase by 1.8
percent from 2018 to 2021 (7.5 percent in total.)
Compatibility of the measure with
the right to education
1.77
Article 13 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR) protects the right to education. It specifically
requires, with a view to achieving the full realisation of the right to
education, that:
Higher education shall be made equally accessible to all, on
the basis of capacity, by every appropriate means, and in particular by the
progressive introduction of free education.
1.78
Australia has obligations to progressively introduce free higher
education by every appropriate means but also has a corresponding duty to
refrain from taking retrogressive measures, or backwards steps, in relation to
the realisation to the right to education.[45]
1.79
The statement of compatibility acknowledges that the decrease in
commonwealth funding is counter to progressive introduction of the right to
free higher education,[46]
that is, it constitutes a retrogressive measure.
1.80
Retrogressive measures may be permissible under international human
rights law providing that they address a legitimate objective, are rationally
connected to that objective and are a proportionate way to achieve that
objective. In this context, the United Nations Committee on Economic, Social
and Cultural Rights has noted that:
There is a strong presumption of impermissibility of any
retrogressive measures taken in relation to the right to education, as well as
other rights enunciated in the Covenant. If any deliberately retrogressive measures
are taken, the State party has the burden of proving that they have been
introduced after the most careful consideration of all alternatives and that
they are fully justified by reference to the totality of the rights provided
for in the Covenant and in the context of the full use of the State party’s
maximum available resources.[47]
1.81
The statement of compatibility argues that the reduction of funding is a
permissible limitation on the right to education including the progressive
introduction of free higher education:
Recalibration of Commonwealth contribution and student
contribution amounts in Schedule 1 will result in decreased Government funding
and an increase in student contributions. This measure is counter to the goal
of progressive introduction of free education however the savings measure is
proportionate to the policy objective of ensuring long-term financial
sustainability necessary to support opportunities in higher education. It also
sits within student loan arrangements that ensure no domestic student need pay
upfront fees for access to higher education. The savings as a result of this
measure will be an important contribution towards Budget repair.[48]
1.82
In general terms, budgetary constraints and financial sustainability
have been recognised as a legitimate objective for the purpose of justifying
reductions in government support that impact on the progressive realisation of
the right to education. However, limited information has been provided to
support the characterisation of financial sustainability or budgetary
constraints as a pressing or substantial concern in these specific
circumstances. Evidence explaining why a proposed cut in funding of this size is
a proportionate reduction in terms of the right to education was not provided
in the statement of compatibility. Further, no information has been provided
about the consideration of alternatives, in the context of Australia's use of
its maximum available resources.
Committee comment
1.83
The preceding analysis raises questions as to the compatibility
of the measure with the obligation to progressively introduce free higher
education (right to education).
1.84
The committee therefore seeks the advice of the minister as to:
-
whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern in the
specific circumstances of the proposed legislation;
-
whether the limitation is a reasonable and proportionate
measure to achieve its stated objective;
-
whether alternatives to reducing higher education funding have
been fully considered; and
-
how the measure complies with Australia's obligation to use
the maximum of its available resources to progressively introduce free higher
education.
Increase in student contributions for enabling courses
1.85
Currently, students undertaking enabling courses cannot be required to
pay a student contribution amount.[49]
1.86
Schedule 2 of the bill seeks to introduce a student contribution amount
fixed at a rate of $3,271 for a full time study load in 2018. Students will be
able to borrow their contribution amount through the Higher
Education Loan Program (HELP).
Compatibility of the measure with
the right to education
1.87
As set out above, article 13 of the ICESCR protects the right to
education including the progressive introduction of free higher education by
every appropriate means. By requiring students to make a financial contribution
towards the costs of enabling courses, the measure engages and limits the right
to education.
1.88
The statement of compatibility did not identify this measure as engaging
and limiting the right to education and accordingly did not provide an
assessment of whether the limitation is permissible. The committee's usual
expectation where a measure limits a human right is that the accompanying
statement of compatibility provide a reasoned and evidence-based explanation of
how the measure supports a legitimate objective, is rationally connected to
that objective and is a proportionate way to achieve that objective.
Committee comment
1.89
Accordingly, the committee requests the further advice of the minister
as to:
-
whether the measure is aimed at achieving a legitimate
objective for the purposes of human rights law;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective; and
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective;
-
whether alternatives to reducing higher education funding have
been fully considered; and
-
how the measure complies with Australia's obligation to use
the maximum of its available resources to progressively introduce free higher
education.
Eligibility of Australian permanent residents and New Zealand citizens to a
commonwealth supported university place
1.90
Schedule 3 of the bill seeks to provide that Australian permanent residents
and New Zealand citizens will no longer be eligible for commonwealth supported higher
education places.[50]
Permanent humanitarian visa holders and New Zealand Special Category Visa
holders who arrived in Australia as dependent children will remain eligible for
commonwealth supported places.[51]
1.91
A commonwealth supported place is partly subsidised by the Australian
government through the government paying part of the fees for the place
directly to the university. Students are also required to contribute towards
their study and they pay the remainder of the fee called 'student contribution
amount' for each unit they are enrolled in.
Compatibility of the measure with
the right to education
1.92
As set out above, article 13 of the ICESCR protects the right to
education including ensuring it is equally accessible and through the
progressive introduction of free higher education by every appropriate means.
1.93
By providing that Australian permanent residents and New Zealand citizens
will no longer be eligible for commonwealth supported higher education places,
the measure engages and limits the right to education and specifically the
progressive introduction of free higher education. Australia's obligations with
respect to the right to education apply regardless of citizenship status to
persons within Australia.
1.94
The statement of compatibility did not identify this measure as engaging
and limiting the right to education and accordingly did not provide an
assessment of whether the limitation is permissible.
Committee comment
1.95
Accordingly, the committee requests the further advice of the minister
as to:
-
whether the measure is aimed at achieving a legitimate
objective for the purposes of human rights law;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective;
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective;
-
whether alternatives to reducing higher education funding have
been fully considered; and
-
how the measure complies with Australia's obligation to use
the maximum of its available resources to progressively introduce free higher
education.
Compatibility of the measure with
the right to equality and non-discrimination (direct discrimination)
1.96
The right to equality and non-discrimination is protected by articles 2
and 26 of the ICCPR. 'Discrimination' under the ICCPR encompasses a distinction
based on a personal attribute (for example, race, sex or on the basis of
disability),[52]
which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.[53]
1.97
The proposed measure, by providing that New Zealand citizens and
Australian permanent residents are no longer eligible for commonwealth
supported places, appears to directly discriminate against people on the basis
of their nationality.
1.98
Differential treatment[54]
will not constitute unlawful discrimination if the differential treatment is
based on reasonable and objective criteria such that it serves a legitimate
objective, is effective to achieve that legitimate objective and is a
proportionate means of achieving that objective.
1.99
However, the statement of compatibility did not identify this measure as
engaging the right to equality and non-discrimination and accordingly did not
provide an assessment of whether the limitation is permissible or constitutes
unlawful discrimination.
Committee comment
1.100
Accordingly, the committee requests the further advice of the minister
as to:
-
whether the measure is aimed at achieving a legitimate
objective for the purposes of human rights law;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective; and
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective.
Lowering repayment threshold for HELP debts
1.101
Schedule 3 of the bill lowers the current minimum repayment threshold
for HELP loans to $41,999 per annum (currently, the repayment threshold is $55,000).
It also introduces additional repayment thresholds and rates (1 percent at
$42,000 and increasing to 10 percent on salaries over 119,882 per annum).[55]
1.102
From 1 July 2019 repayment thresholds including the minimum repayment
amount will be indexed using the Consumer Price Index rather than Average
Weekly Earnings.[56]
Compatibility of the measures with
the right to education
1.103
As set out above, article 13 of the ICESCR protects the right to
education including ensuring it is equally accessible and through the progressive
introduction of free higher education by every appropriate means.
1.104
The Australian system of higher education allows students to defer the
costs of their education under a HELP loan until they start earning a salary
above a certain threshold. The proposed lowering of the repayment threshold
engages and may limit the right to education as it imposes payment obligations
on those who earn lower incomes. This would be contrary to the requirement
under article 13 to ensure that higher education is equally accessible and
progressively free. Similarly, the proposed change to indexation also engages
and may limit the right to education as it may increase the amount to be paid,
relative to earnings, in the event that growth in the Consumer Price Index
exceeds growth in Average Weekly Earnings.
1.105
The statement of compatibility did not identify this measure as engaging
and limiting the right to education and accordingly did not provide an
assessment of whether the limitation is permissible.
Committee comment
1.106
Accordingly, the committee requests the further advice of the minister
as to:
-
whether the measure is aimed at achieving a legitimate
objective for the purposes of human rights law;
-
how the measure is effective to achieve (that is, rationally
connected to) that objective; and
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective.
Compatibility of the measure with
the right to equality and non-discrimination (indirect discrimination)
1.107
As set out above, the right to equality and non-discrimination is
protected by articles 2 and 26 of the ICCPR, and includes indirect
discrimination.
1.108
The change in indexation may have a disproportionate negative effect on
women. On average, women earn less over a lifetime of employment, are more
likely to take time out of the workforce to care for children and are more
likely to be engaged in part-time employment.[57]
Where a person takes longer to repay HELP debt, the change to indexation may
result in increased levels of debt to be repaid relative to earnings. The longer
period that women, on average, take to pay their HELP debt[58]
leads, consequently, to higher education costs than their male counterparts.
1.109
Reducing the minimum repayment income threshold for HELP debts to $41,999
may also have a disproportionate impact on women, given that they are more
likely to earn less than men, and therefore more likely to be affected by the
reduction in the repayment threshold to cover those earning between $41,999 and
$55,000.
1.110
Where a measure impacts on particular groups disproportionately it
establishes prima facie that there may be indirect discrimination.[59]
Differential treatment (including the differential effect of a measure that is
neutral on its face)[60]
will not constitute unlawful discrimination if the differential treatment is
based on reasonable and objective criteria such that it serves a legitimate
objective, is effective to achieve that legitimate objective and is a
proportionate means of achieving that objective.
1.111
The statement of compatibility acknowledges that the measures engage the
right to equality and non-discrimination due to their disproportionate impacts
on women:
introduction of new HELP repayment thresholds, may be seen as
limiting the right to non-discrimination due to disproportionate impacts on
women and other low income groups.
The Government currently carries a higher deferral subsidy
from demographic groups that tend to have lower incomes. This includes women,
individuals in part-time work or individuals in low paid professions. As a
result, many of these individuals, including many women, will be making
repayments for the first time as a result of the introduction of the new, lower
thresholds. Addressing this income inequality, however, is not the role of the
higher education loans system.[61]
1.112
In this respect, the statement of compatibility does not provide a
substantive assessment of whether the measure amounts to indirect
discrimination. To state that a negative impact on women results from income
inequality is not a justification of the measure – which has the potential to
exacerbate inequality – as a proportionate limitation on the right to equality
and non-discrimination.
Committee comment
1.113
Accordingly, the committee requests the further advice of the minister
as to:
-
whether there is reasoning or evidence that establishes that
the stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
how the measure is effective to achieve (that is, rationally
connected to) its stated objective; and
-
whether the limitation is a reasonable and proportionate
measure to achieve the stated objective.
Social Security (Administration) (Trial Area) Amendment Determination 2017
[F2017L00210]
| Purpose |
Amends the Social Security
(Administration) (Trial Area - Ceduna and Surrounding Region) Determination
2015 and Social Security (Administration) (Trial Area - East Kimberley)
Determination 2016 to extend trials of cashless welfare arrangements |
| Portfolio |
Social Services |
| Authorising legislation |
Social Security
(Administration) Act 1999 |
| Disallowance |
15 sitting days after
tabling (tabled Senate and House of Representatives 20 March 2017) |
| Rights |
Social security; private
life; equality and non-discrimination (see Appendix 2) |
| Status |
Seeking additional information |
Extending a trial of cashless welfare arrangements
1.114
The Social Security (Administration) (Trial Area) Amendment
Determination 2017 [F2017L00210] (the determination) extends trials of cashless
welfare arrangements in Ceduna and its surrounding region, and East Kimberley
for six months. This extension will bring the total period of the trials
to 18 months in each location.[62]
Compatibility of the measure with
human rights
1.115
The committee has considered these measures in previous reports in
relation to the Social Security Legislation Amendment (Debit Card Trial) Bill
2015 (Debit Card bill),[63]
and the Social Security (Administration) (Trial - Declinable Transactions)
Amendment Determination (No. 2) 2016 [F2016L01248] (declinable transactions
determination).[64]
The Debit Card bill amended the Social Security (Administration) Act 1999
to provide for a trial of cashless welfare arrangements in prescribed
locations. Persons on working age welfare payments in the prescribed locations
would have 80 percent of their income support restricted, so that the
restricted portion could not be used to purchase alcoholic beverages or to
conduct gambling. The trial arrangements are currently operating in two trial
locations of Ceduna and East Kimberley. Explanatory material for the Debit Card
bill and declinable transactions determination noted that the policy intention
was for the trial to take place for only 12 months in each location.[65]
1.116
The explanatory statement to the determination does not provide detail
as to why the extension is required, but states:
While the early indications of the Trial‘s impact are
positive, the Trial’s extension will allow the Government to make fully
informed decisions about the future of welfare conditionality in Australia.
1.117
The previous human rights assessments of the cashless welfare trial
measures raised concerns in relation to the compulsory quarantining of a
person's welfare payments and the restriction of a person's agency and ability
to spend their welfare payments at businesses including supermarkets. These
concerns related to the right to social security, the right to a private life
and the right to equality and non-discrimination.[66]
1.118
By extending the trials in each location for a further six months, this
instrument engages and limits the abovementioned human rights. As outlined in
the committee's Guidance Note 1, where a limitation on a right is
proposed, the committee expects the statement of compatibility to provide a
reasoned and evidence-based assessment of how the measure pursues a legitimate
objective, is rationally connected to that objective, and is proportionate.
While the committee previously accepted that the cashless welfare trial
measures may pursue a legitimate objective,[67]
it has raised concerns as to whether the measures are rationally connected to
and proportionate to their objective.[68]
In this instance, the statement of compatibility has not provided enough
information to establish why extending the trials is necessary and will be
effective to achieve the objectives of the trials, and is a proportionate
limitation on the above human rights.
Committee comment
1.119
The effect of the determination is to extend the trials of
cashless welfare arrangements in Ceduna and its surrounding region and East
Kimberley for six months, bringing the total period of the trials to 18 months.
The statement of compatibility does not provide information as to why it is
considered necessary to extend the trials beyond 12 months, as originally
envisaged in the Debit Card Bill.
1.120
Noting the human rights concerns raised by the previous human
rights assessments of the trials, and related concerns regarding income
management identified in the committee's 2016 Review of Stronger Futures
measures, the committee seeks the advice of the Minister for Social
Services as to:
-
why it is necessary to extend the trials for a further six
months;
-
how the extension is effective to achieve (that is, rationally
connected to) the stated objective; and
-
whether the limitation is a reasonable and proportionate measure
to achieve the objective of the trials.
Further response required
1.121
The committee seeks a further response from the relevant minister or
legislation proponent with respect to the following bills and instruments.
Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill
2017
| Purpose |
Seeks to make a range of
amendments to the Australian Federal Police Act 1979, Crimes Act
1914, and the Criminal Code Act 1995 including clarifying the functions of the Australian Federal
Police to enable cooperation with international organisations, and
non-government organisations; clarifying the custody notification obligations
of investigating officials when they intend to question an Aboriginal person
or Torres Strait Islander; creating separate offence regimes for 'insiders'
and 'outsiders' for the disclosure of information relating to controlled
operations in the Crimes Act 1914 |
| Portfolio |
Justice |
| Introduced |
House of Representatives,
30 March 2017 |
| Rights |
Privacy; life; freedom from
torture, cruel, inhuman or degrading treatment or punishment (see Appendix
2) |
| Previous report |
4 of 2017 |
| Status |
Seeking further additional
information |
Background
1.122
The committee first reported on the bill in its Report 4 of 2017,
and requested a response from the Minister for Justice by 26 May 2017.[69]
1.123
The minister's response to the committee's inquiries was received on 29
May 2017. The response is discussed below and is reproduced in full at Appendix 3.
Functions of the Australian Federal Police – assistance and sharing
information
1.124
Schedule 1 of the Crimes Legislation Amendment (Powers, Offences and
Other Measures) Bill 2017 (the bill) seeks to make amendments to the Australian
Federal Police Act 1979 (AFP Act) to enable the Australian Federal Police
(AFP) to provide assistance and cooperation to international organisations and
non-government organisations in relation to the provision of police services or
police support services.
1.125
Under section 4 of the AFP Act, 'police services' is defined as services
by way of the prevention of crime and the protection of persons from injury or
death, and property from damage, whether arising from criminal acts or
otherwise. 'Police support services' means services related to: (a) the
provision of police services by an Australian or foreign law enforcement
agency; or (b) the provision of services by an Australian or foreign
intelligence or security agency; or (c) the provision of services by an
Australian or foreign regulatory agency.
Compatibility of the measure with
human rights
1.126
The statement of compatibility states that this measure allows for
information sharing with a range of bodies such as Interpol, United Nations
organisations and non-government organisations (NGOs) and accordingly:
...may engage the right to protection against arbitrary and
unlawful interferences with privacy in Article 17 of the International Covenant
on Civil and Political Rights (ICCPR), as the amendments to the AFP Act provide
for information sharing with international organisations, including international
judicial bodies.[70]
1.127
The right to privacy may be subject to permissible limitations which are
provided by law and not considered arbitrary for the purpose of international
human rights law. 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.
1.128
The statement of compatibility states that the objective of the measure
is to ensure:
...the AFP can engage fully with international organisations,
including judicial bodies, and NGOs, in relation to the provision of police
services and police support services.[71]
1.129
This is likely to be, in broad terms, a legitimate objective for the
purposes of international human rights law. However, the committee's initial
analysis raised questions about the adequacy of safeguards that are in place
with respect to AFP assistance and cooperation with such bodies, including the
sharing of information. First, it is not readily apparent from the statement of
compatibility the extent to which the minister considers that the existing
safeguards in the Privacy Act will apply with respect to AFP sharing of
information with international organisations and NGOs. Second, the initial
analysis noted that the sharing of information overseas in the context of law
enforcement raises concerns in respect of the right to life, which were not
addressed in the statement of compatibility. Third, the initial analysis noted
the possibility that the sharing of information, or cooperation in investigation,
may result in torture, or cruel, inhuman and degrading treatment or punishment.
This issue was not addressed in the statement of compatibility, including any
relevant safeguards.
1.130
Accordingly, in relation to the right to privacy, the committee sought
the advice of the Minister for Justice as to the proportionality of the measure,
including the availability of effective and adequate safeguards, and the extent
to which the provisions of the Privacy Act will act as a safeguard against the
use and disclosure of personal information for a secondary purpose.
1.131
In relation to the right to life, the committee sought the advice of the
minister about the compatibility of the measure with this right (including the
existence of relevant safeguards).
1.132
In relation to the prohibition on torture, or cruel, inhuman and
degrading treatment or punishment, the committee sought the advice of the
minister in relation to the compatibility of the measure with this right
(including any relevant safeguards).
Minister's response
1.133
The minister's response further explains the scope of the measure, how
it is anticipated that it will operate in practice and addresses whether it
imposes a proportionate limit on human rights:
The Bill would insert a new function in section 8 of the AFP
Act to allow the AFP to assist or cooperate with an international organisation,
or with a non-government organisation in relation only to acts, omissions,
matters or things outside Australia, in relation to the provision of police
services or police support services. The Bill also inserts a definition of an
'international organisation' to include public international organisations as
defined in the Criminal Code and bodies established by an international
agreement or arrangement.
Under its existing functions, the AFP already engages with a
range of international bodies. The AFP's engagement with international bodies,
both currently and under the new AFP function, may be for the purposes of
sharing information and intelligence, policy development, or otherwise
facilitating the provision of police services. In many cases, the provision of
information will not involve personal information or information relating to
any particular investigation. This might include, for example, the provision of
information relating to law enforcement methodologies or trends of criminal activity.
In such cases, as the circumstances of specific individuals are not at issue,
the right to privacy, the right to life, and the prohibition on torture, cruel,
inhuman and degrading treatment will not be enlivened. In all cases, the AFP
has a robust set of governance and procedures in place to ensure such engagement
is compatible with human rights.
In summary, the measure to insert a new function in the AFP Act
is compatible with the right to privacy, the right to life and the prohibition
on torture, cruel, inhuman and degrading treatment. In particular, with respect
to any relevant disclosure of information pursuant to the new function:
-
the Privacy Act 1988 will apply
-
the AFP National Guideline on
international police-to-police assistance in death penalty situations (the
National Guideline on Death Penalty) will be applied, and
-
the AFP National Guideline on
offshore situations involving potential torture or cruel, inhuman or degrading treatment
or punishment (the National Guideline on TCIDTP) will be applied.
Although the National Guideline on Death Penalty and the National
Guideline on TCIDTP do not specifically reference international organisations,
the AFP already applies the Guidelines to relevant information disclosures it
makes to international organisations under its existing functions. Should the
amendment pass, the AFP will review internal AFP governance and procedures,
including both Guidelines, to ensure they reflect legislative and operational requirements.
1.134
The response clarifies that much of the assistance and information
provided will not relate to individual investigative cases so, as a practical
matter, the proposed new function may not impact upon human rights in these instances.
While this may be the case, as acknowledged in the minister's response, the
proposed new function still engages a range of human rights by permitting the
sharing of information overseas.
1.135
The AFP's commitment to review both the National Guideline on Death
Penalty and the National Guideline on TCIDTP (the guidelines) in light of the
measure is welcome. However, as set out below, in relation to the right to life
and the prohibition on torture, cruel, inhuman and degrading treatment, the
committee would be assisted by additional information regarding these
guidelines, to assess whether they provide an adequate and effective safeguard
in relation to these rights.
Compatibility of the measure with
the right to privacy
1.136
In relation to the right to privacy, the minister's response clarifies
how the Privacy Act and the Australian Privacy Principles (APPs) will apply and
operate as a safeguard in relation to disclosure of personal information for
the proposed measure:
The proposed new function in section 8 of the AFP Act does
not override the Privacy Act. To the extent that the new function will enable
the disclosure of personal information with international organisations and
non-government organisations, the Privacy Act, the AFP Act and AFP policy
provide effective and adequate safeguards to protect the right to privacy.
Furthermore and as noted above, only a small proportion of the cooperation
undertaken pursuant to the new function is likely to relate to specific individuals
or cases where personal information would be relevant.
As an Australian Privacy Principle entity, the AFP is bound
by the Australian Privacy Principles (APPs) which are contained in Schedule 1
of the Privacy Act. The APPs govern the way the AFP collects, uses, discloses
and stores personal information. The APPs apply irrespective of whether the AFP
is cooperating with a domestic or international body.
The APPs contain some exceptions allowing the use and
disclosure of personal information for a purpose other than the primary purpose
for which it was collected. As noted by the Committee, one such exception is
where use or disclosure of information is required or authorised by law. The
government does not consider that the new AFP function inserted by the Bill
operates as a ‘requirement or authorisation by law’ for the purpose of this
exception.
1.137
The minister's advice notes that the measure is not considered to create
a broad authorisation for the disclosure of personal information for secondary
purpose under the Privacy Act. It follows that the Privacy Act and the APPs
appear capable of operating as a safeguard in relation to the disclosure of
personal information in a range of circumstances.
1.138
However, the minister's response acknowledges that other exceptions to
the prohibition on disclosure of information for a secondary purpose under the
APPs may be applicable:
As also noted by the Committee, another of these exceptions
includes where the use or disclosure is reasonably necessary for enforcement
related activity conducted by, or on behalf of, an enforcement body.
‘Enforcement related activity’ is defined broadly and includes prevention,
detection, investigation, prosecution or punishment of criminal offences.
‘Enforcement body’ includes the AFP together with a number of other domestic
agencies.
The use or disclosure of personal information pursuant to the
new AFP function inserted by the Bill may, in some circumstances, qualify under
this exception. That is, where the use or disclosure of personal information
with respect to the international organisation or non-government organisation
is reasonably necessary for enforcement related activity conducted by, or on
behalf of, an enforcement body as defined by the Privacy Act. As noted above,
in many cases, the provision of information will not involve personal
information or relate to any particular investigation.
In all cases involving the use or disclosure of personal
information, AFP appointees must consider whether the Privacy Act permits use
or disclosure of the personal information. In relation to information
disclosure, AFP appointees are also bound by the secrecy provision in section
60A of the AFP Act and must consider whether the release of information is
consistent with AFP functions. Each disclosure must be considered on a
case-by-case basis.
The AFP’s National Guideline on Privacy also outlines AFP
appointees’ obligations under the Privacy Act and all AFP appointees are
required to be familiar and comply with the Guideline.
1.139
While noting that an exception to the prohibition on disclosure may be
available in particular cases, the general prohibition on disclosure of
personal information under the APPs for a secondary purpose appears to provide
a significant safeguard in relation to the right to privacy. On this basis, the
measure would appear to provide a proportionate limitation on the right to
privacy.
Compatibility of the measure with the
right to life and the prohibition on torture, cruel, inhuman and degrading
treatment or punishment
1.140
In relation to whether the measure is compatible with the right to life
and the prohibition on torture, or cruel, inhuman and degrading treatment or
punishment, the minister provided the following information:
Information and intelligence sharing with international organisations
and non-government organisations for the purposes of the proposed new function
will often not relate to any particular individual under investigation, and
therefore will not raise death penalty, or torture, cruel, inhuman or degrading
treatment or punishment (TCIDTP), implications.
Where information provided to an international organisation
or a non-government organisation has potential death penalty or TCIDTP implications,
the AFP will apply the National Guideline on Death Penalty or the National Guideline
on TCIDTP. For example, this might arise when providing information via
Interpol to a law enforcement agency in a country that has not abolished the
death penalty or where TCIDTP concerns exist.
As noted above, the National Guideline on Death Penalty and
the National Guideline on TCIDTP do not specifically refer to the proposed new
function of cooperating with international organisations. Should the amendment
pass Parliament, the AFP will review both National Guidelines to ensure they
reflect legislative and operational requirements.
The AFP already applies the National Guideline on Death Penalty
and the National Guideline on TCIDTP to relevant information disclosures it
makes to international organisations under its existing functions. The AFP will
continue to treat any disclosures of information that may involve the death
penalty or TCIDTP implications with the same process as it would for the exchange
of information between law enforcement agencies.
National Guideline on Death Penalty
All AFP appointees are required to comply with the National
Guideline on Death Penalty. Inappropriate departures from the National
Guideline may constitute a breach of AFP professional standards and be dealt
with under Part V of the AFP Act.
Under the National Guideline on Death Penalty, the AFP is
required to consider relevant factors before providing information to foreign
law enforcement agencies if it is aware the provision of information is likely
to result in the prosecution of an identified person for an offence carrying
the death penalty. Ministerial approval is required for any case in which a person
has been arrested or detained for, charged with, or convicted of an offence
which carries the death penalty.
The Government has committed to make improvements to the
National Guideline on Death Penalty. On 1 March 2017, the Government tabled its
response to the Joint Standing Committee on Foreign Affairs, Defence and
Trade’s report: A world without the death penalty: Australia's Advocacy for
the Abolition of the Death Penalty. In its response, the Government agreed
to implement a number of recommendations, including:
- the National Guideline be amended by ‘explicitly applying
the Guideline to all persons, not just Australian citizens’;
- the National Guideline be amended by ‘including a provision
that, in cases where the AFP deems that there is a ‘high risk’ of exposure to the
death penalty, such cases be directed to the Minister for decision’ (the
Government accepts this recommendation in principle, however re-affirms that
the decision-making in the pre-arrest phase is best made within the AFP)
- The National Guideline be amended by ‘articulating the
criteria used by the AFP to determine whether requests are ranked ‘high’,
‘medium’ or ‘low’ risk’. These amendments will enhance the existing safeguards
against the provision of information in death penalty cases.
National Guideline on TCIDTP
The National Guideline on TCIDTP outlines the obligations for
AFP appointees where a person is in danger of being subjected to TCIDTP. All
AFP appointees are required to comply with the National Guideline on TCIDTP.
Inappropriate departures may constitute a breach of AFP professional standards
and be dealt with under Part V of the AFP Act.
The National Guideline on TCIDTP provides a list of mandatory
considerations before information can be disclosed to foreign authorities in
situations where there are substantial grounds for believing a person that is
detained would be in danger of being subjected to TCIDTP. It also sets out a formal
approval process for the release of such information. The information, if
provided, must include a caveat to protect against unintended use of the information,
and on-disclosure to third parties.
1.141
The guidelines relied upon by the minister are significant in relation
to whether the measure is compatible with the right to life and the prohibition
on torture, cruel, inhuman and degrading treatment or punishment. However,
without knowing what the guidelines state it is not possible to conclude that
they would provide adequate and effective protection of these rights. While
some copies have been made publically available through the Freedom of
Information Act 1982, they are undated and it is unclear whether these
versions are current. Accordingly, in order to complete the human rights
assessment of the measure against the right to life and the prohibition on
torture, cruel, inhuman and degrading treatment or punishment, the committee
would be assisted by a current copy of these guidelines.
Committee response
1.142
The committee thanks the minister for his response.
1.143
As set out in the preceding analysis, the minister has provided a
range of information that indicates that the measure is likely to be compatible
with the right to privacy.
1.144
In order to complete its examination of the compatibility of the
measure with the right to life and the right not to be subject to torture,
cruel, inhuman and degrading treatment, the committee requests a copy of the
following guidelines:
-
AFP National Guideline on international police-to-police
assistance in death penalty situations; and
-
AFP National Guideline on offshore situations involving
potential torture or cruel, inhuman or degrading treatment or punishment.
Advice only
1.145
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.
Appropriation Bill (No. 1) 2017-2018
Appropriation Bill (No. 2) 2017-2018
| Purpose |
Appropriation Bill (No. 1)
2017-2018 seeks to appropriate money
from the Consolidated Revenue Fund for the ordinary annual services of the
government; and Appropriation Bill (No. 2) 2017-2018 seeks to do so for
services that are not ordinary annual services of the government |
| Portfolio |
Finance |
| Introduced |
House of Representatives, 9 May 2017 |
| Rights |
Multiple rights (see Appendix
2) |
| Status |
Advice only |
Background
1.146
The committee has previously considered the human rights implications of
appropriations bills in a number of reports,[72]
and they have been the subject of correspondence with the Department of
Finance.[73]
1.147
The committee previously reported on Appropriation Bill (No. 1)
2016-2017 and Appropriation Bill (No. 2) 2016-2017 (the earlier 2016-2017
bills) in its Report 9 of 2016.[74]
Potential engagement and limitation of human rights by appropriations Acts
1.148
As previously stated in respect of the 2016-2017 bills, proposed
government expenditure to give effect to particular policies may engage and
limit and/or promote a range of human rights. This includes rights under the
International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights (ICESCR).[75]
1.149
The committee has previously noted that:
...the allocation of funds via appropriations bills is
susceptible to a human rights assessment that is directed at broader questions
of compatibility—namely, their impact on progressive realisation obligations
and on vulnerable minorities or specific groups. In particular, the committee
considers there may be specific appropriations bills or specific appropriations
where there is an evident and substantial link to the carrying out of a policy
or program under legislation that gives rise to human rights concerns.[76]
Compatibility of the bills with
multiple rights
1.150
Like the earlier 2016-2017 bills, and previous appropriations bills, the
current bills are accompanied by a brief statement of compatibility, which
notes that the High Court has stated that, beyond authorising the withdrawal of
money for broadly identified purposes, appropriations Acts 'do not create
rights and nor do they, importantly, impose any duties'.[77]
The statements of compatibility conclude that, as their legal effect is limited
in this way, the bills do not engage, or otherwise affect, human rights.[78]
They also state that '[d]etailed information on the relevant appropriations...is
contained in the portfolio [Budget] statements'.[79]
No further assessment of the human rights compatibility of the bills is
provided.
1.151
The full human rights analysis in respect of such statements of
compatibility can be found in the committee's Report 9 of 2016.[80]
1.152
As previously stated, while such bills present particular difficulties
for human rights assessment because they generally include high-level
appropriations for a wide range of outcomes and activities across many
portfolios, the allocation of funds via appropriations bills is susceptible to
a human rights assessment directed at broader questions of compatibility.
Committee comment
1.153
The committee notes that the statements of compatibility for the
bills provide no assessment of their compatibility with human rights on the
basis that they do not engage or otherwise create or impact on human rights.
However, while the committee acknowledges that appropriations bills present
particular challenges in terms of human rights assessments, the appropriation
of funds may engage and potentially limit or promote a range of human rights
that fall under the committee's mandate.
1.154
Given the difficulty of conducting measure-level assessments of
appropriations bills, the committee recommends that consideration be given to
developing alternative templates for assessing their human rights
compatibility, drawing upon existing domestic and international precedents.
Relevant factors in such an approach could include consideration of:
-
whether the bills are compatible with Australia's obligations
of progressive realisation with respect to economic, social and cultural
rights; and
-
whether any reductions in the allocation of funding are
compatible with Australia's obligations not to unjustifiably take retrogressive
or backward steps in the realisation of economic, social and cultural rights.
Social Services Legislation Amendment (Queensland Commission Income
Management Regime) Bill 2017
| Purpose |
This bill seeks to amend
the Social Security (Administration) Act 1999 to allow the Income
Management element of Cape York Welfare Reform to continue for two additional
years until 30 June 2019 |
| Portfolio |
Social Services |
| Introduced |
House of Representatives,
24 May 2017 |
| Rights |
Equality and
non-discrimination; social security; privacy and family (see Appendix 2) |
| Status |
Advice only |
Background
1.155
The Social Security (Administration) Act 1999 provides the
legislative basis for the income management regime in place for certain welfare
recipients in prescribed locations.[81]
Income management limits the amount of income support paid to recipients as
unconditional cash transfers and imposes restrictions on how the remaining
'quarantined' funds can be spent. A person's income support can be subject to
automatic deductions to meet 'priority needs', such as food, housing and
healthcare. The remainder of the restricted funds can only be accessed using a
'BasicsCard', which can only be used in certain stores and cannot be used to
purchase 'excluded goods' or 'excluded services'.[82]
1.156
A person on welfare benefits can voluntarily sign up for income
management, or be made subject to compulsory income management.
1.157
The committee examined the income management regime, focusing on its
operation in the Northern Territory, in its 2013 and 2016 Reviews of
the Stronger Futures measures.[83]
In its 2016 review, the committee noted that the income management measures
engage and limit the right to equality and non-discrimination, the right to
social security and the right to privacy and family.[84]
Extending Cape York income management
1.158
The Social Services Legislation Amendment (Queensland Commission Income
Management Regime) Bill 2017 (the bill) proposes to amend the Social
Security (Administration) Act 1999 to continue income management under the
Cape York welfare reform package for a further two years.[85]
The Cape York welfare reforms were introduced in 2008, jointly funded by the
Commonwealth and Queensland state government. As part of the reforms, the Family
Responsibilities Commission (Queensland Commission) was created as an
independent statutory authority to:
...support the restoration of socially responsible standards of
behaviour and local authority in welfare reform community areas; and...to help
people in welfare reform community areas to resume primary responsibility for
the wellbeing of their community and the individuals and families of the
community.[86]
1.159
The Queensland Commission may, in certain circumstances, direct
Centrelink to place a person under compulsory income management.[87]
Individuals who may be placed on income management under the Cape York measures
must be referred to the Queensland Commission by a relevant Queensland
department, after having failed to meet certain pre-determined obligations.[88]
1.160
On receipt of the notice, a local commissioner will then hold a
conference with the person, and, as an alternative to placing a person on
income management, the commission can refer the person to support services.[89]
Compatibility of the measure with
human rights
1.161
Subjecting a person to compulsory income management for any length of
time engages and limits the following rights:
-
the right to equality and non-discrimination;
-
the right to social security; and
-
the right to privacy and family.
1.162
Each of these rights is discussed in detail in the context of the income
management regime in the committee's 2016 Review of Stronger Futures
measures (2016 Review).[90]
1.163
In the 2016 Review, the committee accepted that the income management
regime pursues a legitimate objective for the purposes of international human
rights law, but questioned whether the measures were rationally connected to
achieving the stated objective and were proportionate.[91] The committee's report
noted:
While the income management regime may be of some benefit to
those who voluntarily enter the program, it has limited effectiveness for the
vast majority of people who are compelled to be part of it.[92]
1.164
As noted above, the income management regime as applied by the Cape York
welfare reform measures appears targeted at a more limited range of welfare
recipients, and allows for individual assessments of the particular
circumstances of the affected individuals and the management of their welfare
payments. This regime, as facilitated through the Queensland Commission, may
accordingly be less rights restrictive than the blanket location-based scheme
as applied in the Northern Territory, and other place-based income management
sites. However, while an individual assessment is required, the application of
income management may be compulsory rather than voluntary. The concerns raised
in 2016 Review regarding compulsory income management therefore remain.
Committee comment
1.165
The effect of the bill is to extend the income management element
of the Cape York welfare reform measures in the communities of Aurukun, Coen,
Hope Vale, Mossman Gorge and Doomadgee for two years.
1.166
Noting the human rights concerns regarding income management
identified in the committee's 2016 Review of Stronger Futures measures,
the committee draws the human rights implications of the bill to the attention
of the Parliament.
Bills not raising human rights
concerns
1.167
Of the bills introduced into the Parliament between 9 May and 1 June
2017, 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):
-
Appropriation (Parliamentary Departments) Bill (No. 1) 2017-2018;
-
Australian Education Amendment Bill 2017;
-
Clean Energy Finance Corporation Amendment (Carbon Capture and
Storage) Bill 2017;
-
Comcare and Seacare Legislation Amendment (Pension Age and
Catastrophic Injury) Bill 2017;
-
Customs Tariff Amendment (Tobacco Duty Harmonisation) Bill 2017;
-
Education Legislation Amendment (Provider Integrity and Other
Measures) Bill 2017;
-
Excise Tariff Amendment (Tobacco Duty Harmonisation) Bill 2017;
-
Foreign Acquisitions and Takeovers Fees Imposition Amendment (Fee
Streamlining and Other Measures) Bill 2017;
-
Government Procurement (Judicial Review) Bill 2017;
-
Industrial Chemicals Bill 2017;
-
Industrial Chemicals Charges (Customs) Bill 2017;
-
Industrial Chemicals Charges (Excise) Bill 2017;
-
International Monetary Agreements Amendment Bill 2017;
-
Major Bank Levy Bill 2017;
-
Medicare Guarantee (Consequential Amendments) Bill 2017;
-
Medicare Guarantee Bill 2017;
-
Public Service Amendment (Supporting a Regional Workforce) Bill
2017;
-
Safe Work Australia Amendment (Role and Functions) Bill 2017;
-
Social Services Legislation Amendment (Ending Carbon Tax
Compensation) Bill 2017;
-
Social Services Legislation Amendment (Energy Assistance Payment
and Pensioner Concession Card) Bill 2017;
-
Social Services Legislation Amendment (Relieving Domestic
Violence Victims of Debt) Bill 2017;
-
Statute Update (Winter 2017) Bill 2017;
-
Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill
2017;
-
Treasury Laws Amendment (2017 Measures No. 2) Bill 2017;
-
Treasury Laws Amendment (Accelerated Depreciation For Small
Business Entities) Bill 2017;
-
Treasury Laws Amendment (Enterprise Tax Plan No. 2) Bill 2017;
-
Treasury Laws Amendment (Foreign Resident Capital Gains
Withholding Payments) Bill 2017;
-
Treasury Laws Amendment (GST Integrity) Bill 2017;
-
Treasury Laws Amendment (Major Bank Levy) Bill 2017;
-
Treasury Laws Amendment (Medicare Levy and Medicare Levy
Surcharge) Bill 2017;
-
Veterans’ Affairs Legislation Amendment (Budget Measures) Bill
2017.
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