2.48
Information and documents contained in COI and IO records and reports
may contain personal and sensitive information. By permitting the use,
disclosure and copying of information and documents contained in COI and IO
records and reports, the measures engage and limit the right to privacy. The
statement of compatibility does not acknowledge that the provisions authorising
the use, disclosure and copying of information and documents engage the right
to privacy.
2.49
The right to privacy may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, they must pursue a legitimate objective, be rationally connected and
proportionate to achieving that objective.
2.50
In particular, regarding the proportionality of the measure, there were
concerns in relation to the breadth of the use and disclosure provisions, and
whether they are sufficiently circumscribed. For each of the provisions, it was
unclear what the extent of disclosure is. For example, providing certain
conditions are met, the regulations would appear to extend to permitting public
disclosure. Similarly, in relation to sections 26, 27, 58 and 59 of the
regulations, the authorisation to disclose information in the course of their
duties extends to an 'employee of the Commonwealth' or a 'member of the Defence
Force'. This may capture a broad number of people at varying levels of rank
within the public service and Defence Force. In relation to sections 27 and 59
of the regulations, it was not clear whether there are any limitations to the
types of 'specified purposes' for which the minister may authorise use and
disclosure of information. In relation to section 28 and 60, there did not
appear to be any limit on the extent to which the minister may use, disclose or
copy information and documents contained in COI records and reports.
2.51
In relation to section 26 of the regulations, it was noted that the explanatory
statement explains that use, disclosure and copying occur 'in the performance
of the person's duties', which provides a significant safeguard against
improper use, disclosure and copying of information contained in COI records
and COI reports. The explanatory statement also states that if a person were to
disclose a COI record or COI report outside of their duties, that person may be
subject to internal administrative or disciplinary action and the conduct may
also constitute an offence under section 37 of the regulations, as well as an
unauthorised disclosure for the purposes of the Privacy Act 1988 and
section 70 of the Crimes Act 1914. In addition, unauthorised public
disclosure of a COI record or COI report may result in internal administrative
or disciplinary action.[19] The explanatory statement further states that the Chief of Defence Force
Directive 08/2014 further enhances the safeguards in relation to sections 26
and 58, as it restricts the types of disclosures that validly fall within the scope
of a person's official duties. The previous analysis stated that it would be of
assistance if a copy of this directive could be provided in order to assess the
human rights compatibility of the measures.
2.52
More generally, the
initial analysis stated that the information provided in the explanatory
statement is not sufficient as it does not provide an assessment of whether the
limitation on the right to privacy is permissible. As set out in the committee's Guidance Note 1, the committee's expectation is that statements of
compatibility read as stand-alone documents, as the committee relies on the
statement as the primary document that sets out the legislation proponent's
analysis of the compatibility of the bill with Australia's international human
rights obligations.
2.53
The committee therefore sought the advice of the minister as to:
2.54
The minister's response provides a range of information as to the human
rights compatibility of the provisions permitting the use, disclosure and
copying of information and documents contained in COI and IO records and
reports. The minister has also usefully provided the committee a copy of the Chief
of Defence Force Directive 08/2014 (directive) as well as a replacement
explanatory memorandum.
Use and disclosure in the course of
a person's duties
2.55
As noted above, within their duties, Commonwealth employees and members
of the Defence Force can use, disclose and copy information and documents
contained in or forming part of COI and IO records and reports.[20] The minister's response does not specifically identify whether the measures
pursue a legitimate objective for the purposes of international human rights
law. However, the response provides some examples of the circumstances in which
the use, disclosure and copying of information and documents may fall within
the scope of a person's duties (including being incidental to the performance
of those duties). These circumstances include:
- a commanding officer maintaining the welfare of his or her
subordinates;
- a legal officer giving legal advice to command;
- the implementation of inquiry outcomes;
- the development of certain material (for example, designing
training, policy, procedures, instructions or orders);
-
affording procedural fairness; and
- providing inquiry records to the Department of Veterans' Affairs
to enable that department to consider a compensation claim.
2.56
These may be capable of constituting legitimate objectives for the
purpose of international human rights law. However, it would have been useful
if the minister's response had specifically addressed the objectives of the
measure.
2.57
Insofar as it may be relevant to the performance of particular functions,
authorising the use, disclosure and copying of information and documents may
also be rationally connected to the particular objective.
2.58
In relation to the proportionality of the measures, the minister's response
reiterates that the use, disclosure and copying of information and documents
must fall within the scope of the person's duties, emphasising that this will
depend on the nature of the person's position and the role of the person
seeking to disclose the information. The response further states that:
[g]uidance contained in Chief of the Defence Force Directive
08/2014 (the relevant extract of which has been enclosed for the Committee's
reference) states that disclosure to the public or wide disclosure within
Defence is unlikely to be part of, or incidental to, a person's duties. The
Directive provides general examples of different roles and functions within the
ADF. A commanding officer in the ADF has functions associated with the welfare
of his or her subordinates, so their performance of duties includes matters
incidental to maintaining the welfare of his or her subordinates. A legal
officer in the ADF has functions associated with giving legal advice to
command, so their performance of duties includes matters incidental to giving
the legal advice. The Directive also provides common examples of disclosures
internally within and externally to Defence that may fall within the
performance of a person's duties. These include internal disclosures of inquiry
records to other Defence staff for the purpose of implementing inquiry
outcomes, dealing with complaints, designing training, policy, procedures,
instructions and orders; and affording procedural fairness.
2.59
The minister's response also states that external disclosures (that is,
to entities outside of the Department of Defence or the ADF) would generally be
within the duties of a dedicated liaison officer of the relevant external
department or agency, and that it is unlikely that many external disclosures would
be made. The response indicates that the most likely scenario is where records
concerning a safety incident are provided to the Department of Veterans'
Affairs to enable consideration of compensation claims. The response further
states that if an Australian Public Service employee outside the department is
provided with inquiry records, that employee will also be prohibited from
using, disclosing or copying inquiry records unless to do so is within the
course of their employment.
2.60
This information assists with the proportionality of the measures, as it
indicates that the use, disclosure and copying of documents under sections 26
and 58 would be restricted to where such actions are within the scope of or
incidental to the performance of a person's functions. The information also
suggests that external disclosure (including public disclosure) would only
occur in limited circumstances.
2.61
The extract of the directive provided with the minister's response also
contains further information regarding the protection of information and
documents disclosed under sections 26 and 58 from further disclosure. For
example, the Directive indicates that:
- where inquiry documents are to be disclosed to other
Commonwealth, State or Territory agencies, any potential for further disclosure
of sensitive information should be discussed with the agency and appropriate
measures taken to mitigate risks;
- where the person receiving the inquiry documents is a serving ADF
member or Commonwealth employee, the person may be given an order or direction
not to disclose the inquiry records or reports; and
- where inquiry documents include sensitive information (including
personal information), such information may need to be redacted before the
documents are disclosed.[21]
2.62
As noted above, the response also states that the directive constitutes
a general order to Defence Force members for the purposes of the Discipline
Act, meaning that unauthorised public disclosure of inquiry records by Defence
Force members (who for the most part would be handling such records) may result
in administrative or disciplinary action. This assists the proportionality of
the measure.
2.63
The minister's response also explains the safeguards against
unauthorised use and disclosure of information contained in COI and IO records
and reports. The response states that these safeguards include the offences and
provisions in sections 37 and 66 of the regulations, the Privacy Act 1988 (Privacy Act) and section 70 of the Crimes Act 1914 (which relates to
unauthorised disclosures).
2.64
On balance, noting the information provided on potential safeguards, as
well as on the circumstances in which information may be used, disclosed or
copied, the provision for use and disclosure in the course of a person's duties
may constitute a proportionate limitation on the right to privacy.
Use and disclosure authorised by the minister
2.65
As noted above, the minister may authorise an employee of the
Commonwealth or a member of the Defence Force to use, disclose and copy
information contained in COI and IO records and reports for purposes specified
in the authorisation.[22] In relation to whether these measures pursue a legitimate objective for the
purposes of international human rights law, the minister's response states:
[t]he purpose of sections 27 and 59 is to allow use,
disclosure or copying of inquiry records in circumstances where [...] there is a
legitimate objective for the purposes of human rights law, but where such would
not ordinarily be within the course of an APS employee or ADF member's
employment. For example, it may be legitimate for the family of a deceased ADF
member to be provided with information surrounding the ADF member's death.
Providing them with a copy of the report would be rationally connected to that
objective, but doing so would not ordinarily be within the scope of a person's
duties and therefore not within the scope of sections 27 and 58. In this
instance, the Minister could authorise the Chief of the Defence Force under
section 27 and 59 to disclose a copy of an inquiry report to the family.
2.66
While pointing to some examples of how the disclosure of information in
some circumstances may pursue a legitimate objective, the minister's response
does not specifically articulate how the broad disclosure power itself
addresses a pressing and substantial concern. Based on this information, it
appears the intention is that the minister would only grant an authorisation in
circumstances where a legitimate objective exists. However, the regulations do
not place any limits on the purpose for which the minister's powers may be
exercised. As such, it is unclear from the information provided that the
measure pursues a legitimate objective or is rationally connected to that
objective.
2.67
In relation to the proportionality of the measures, the minister's
response states that:
Sections 27 and 59...provide a mechanism for using or
disclosing inquiry records containing personal information in a way that is the
least restrictive of the right to privacy. Consistent with Defence and privacy
policies, the Minister may impose conditions, such as that the personal
information of individuals be redacted prior to the report being disclosed. The
requirement that the Minister identifies the specific purpose for which the use
or disclosure is being authorised limits the use and disclosure of inquiry
records to the specific purpose which the Minister has turned his or her mind
to, and not some other broader purpose.
2.68
It is accepted that the minister's powers provide some scope for
ensuring that the use and disclosure of inquiry records does not unduly
interfere with the right to privacy. However, the regulations do not appear to
set any limits on the exercise of the minister's powers, beyond requiring that
the purpose for which the use, disclosure and copying of COI and IO records and
reports be specified in the relevant authorisation. In the absence of any
further statutory restrictions on the exercise of the minister's powers, there
remains a risk that the powers could be exercised in a manner that is
incompatible with human rights.
Power for the minister to use, disclose and copy information and documents
2.69
As noted above, the minister may use information contained in COI
records and reports for purposes relating to the Defence Force, and may (more
generally) disclose or copy information and documents contained in COI and IO
records and reports.[23] In relation to those measures, the minister's response states that:
[a]s the Minister for Defence has general control and
administration of the Defence Force under the Defence Act 1903, and the
purpose of inquiries under the Defence (Inquiry) Regulations 2018 is to
facilitate the making of decisions relating to the Defence Force, it is
essential that the Minister retains this broad power ... using or disclosing
inquiry records or reports which may contain personal information is rationally
connected to that objective.
2.70
Facilitating the making of decisions relating to the Defence Force
appears to be a legitimate objective for the purposes of international human
rights law. The minister's use or disclosure of inquiry reports and records
appears to be rationally connected to that objective noting that the minister
is responsible for the control and administration of the Defence Force.
2.71
In relation to the proportionality of the measures, the minister's
response states that use or disclosure may only occur where it is necessary to
facilitate decision-making. The response also emphasises that the power is only
held by the minister, who will remain accountable to parliament with respect to
its exercise.
2.72
The information provided indicates that the minister's powers are
intended only to be exercised to facilitate the making of decisions relating to
the Defence Force. While this may be the intention, the regulations do not
appear to set any limits on the minister's powers, beyond requiring that
information and documents be used (as opposed to copied or disclosed)
for purposes relating to the Defence Force. In the absence of any further
statutory restrictions on the exercise of the minister's powers, there remains
a risk that these powers may be exercised in a manner that is incompatible with
human rights.
Committee response
2.73
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.74
Based on the information provided and the above analysis, the
use, disclosure and copying of information and documents in accordance with a
person's duties may be compatible with the right to privacy.
2.75
However, noting the absence of relevant safeguards, there appears
to be a risk that the following measures may be incompatible with the right to
privacy:
- the power for the minister to authorise the use, disclosure
and copying of information and documents; and
- the power for the minister himself or herself to use, disclose
and copy information and documents.
Reversal of the evidential burden of proof
2.76
The regulations create a number of offences in relation to the use and
disclosure of information in relation to a COI. A number of these offences
provide exceptions (offence-specific defences) in certain circumstances. For
each of these defences, the defendant bears an evidential burden.[24] Similar offence-specific defences for which the defendant bears the evidential
burden apply in the context of the offence provisions in relation to an IO
Inquiry.[25]
Compatibility of the measure with
the right to the presumption of innocence
2.77
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 raise evidence to disprove one or more
elements of an offence engage and limit this right.
2.78
Reverse burden offences will not necessarily be inconsistent with the
presumption of innocence provided that they are within reasonable limits,
taking into account the importance of the objective being sought, and maintain
the defendant's right to a defence. In other words, such provisions must pursue
a legitimate objective, be rationally connected to that objective and be a
proportionate means of achieving that objective.
2.79
The statement of compatibility does not identify that the reverse burden
offences in the regulations engage and limit the presumption of innocence.
Further, while information is provided in the explanatory statement as to the
rationale for reversing the evidential burden of proof,[26] this information does not provide an assessment of whether the limitation on
the right to the presumption of innocence is permissible.
2.80
The committee drew the attention of the minister to the committee's Guidance
Note 2, which sets out the key human rights compatibility issues in
relation to reverse burden offences, and requested the advice of the minister
as to:
- whether the reverse burden offences are aimed at achieving a
legitimate objective for the purposes of international human rights law;
- how the reverse burden offences are effective to achieve (that
is, rationally connected to) that objective; and
- whether the reverse burden offences are reasonable and
proportionate to achieve that objective.
Minister's response
2.81
The minister's response provides a range of information as to the human
rights compatibility of the reverse burden offences.
Reverse burden offences for refusing to attend as a
witness, produce documents or answer a question
2.82
As noted above, these offences are subject to statutory exceptions which
reverse the evidential burden of proof including where:
- compliance would be unduly onerous;[27]
-
the person believes on reasonable grounds that compliance is
likely to cause damage to the defence, security or international relations of
the Commonwealth.[28]
2.83
The minister's response explains that the purpose of the offences is to ensure
that inquiry officials obtain the best information or evidence available on
which to base their findings, which will then be used to facilitate
decision-making and ensure that the best decisions are made. In view of the
regulatory context, this is capable of constituting a legitimate objective for
the purposes of international human rights law.
2.84
The response also states that the offences and the associated reversal
of the evidential burden are rationally connected to this objective. In this
respect, it is accepted that criminalising failures or refusals to provide
information in relation to defence inquiries is likely to be effective to
obtain appropriate information. It is also accepted that reversing the
evidential burden may be effective to achieve this objective, given that to do
so may assist with the enforcement of the offences. However, it would have been
useful for the minister's response to more directly address the connection
between obtaining appropriate information and reversing the evidential burden
of proof.
2.85
In relation to the proportionality of the measures generally, the
minister's response states that the existence of relevant matters can be
readily and cheaply established by the defendant, whereas these matters would
be significantly more difficult and costly for the prosecution to disprove
beyond reasonable doubt. While this difficulty is acknowledged, it is noted
that the prosecution ordinarily carries a heavy burden of proof in relation to
criminal offences, and consequently this justification is not, of itself,
likely to be sufficient for reversing the burden of proof for the purposes of
international human rights law.
2.86
However, the minister's response further states that:
...the belief of the person that compliance is likely to cause damage
to Defence, or that the circumstances made compliance unduly onerous, requires
consideration of factors which are peculiarly within the knowledge of the
defendant. For example, in relation to whether compliance is unduly burdensome,
the volume of information to be provided and the personal circumstances of the
person vis a vis the requirements of the order or notice would only be known by
the person.
2.87
Based on this information, it may be accepted that the matters to which
the measures relate would be peculiarly if not exclusively within the knowledge
of the defendant. This indicates that the reversal of the evidential burden of
proof in the relevant provisions is likely to constitute a proportionate
limitation on the presumption of innocence. The fact that the defences or
exceptions reverse the evidential rather than the legal burden also supports a
conclusion that the measures are likely to be a proportionate limitation on
that right.
Reverse burden offences for unauthorised use or disclosure
of information
2.88
As noted above, these offences are subject to statutory exceptions where
the disclosure is authorised under other provisions of the regulations.[29] The minister's response indicates that the offences, and the associated
defences or exceptions which reverse the evidential burden, pursue the same
objective as the other offences identified in the response (that is, ensuring
that inquiry officials obtain the best available information, and ensuring
effective decision-making). As noted above at [2.82], this is likely to be a
legitimate objective for the purposes of international human rights law.
However, the minister's response does not explain the importance of this
objective in the context of these specific measures.
2.89
The minister's response also argues that the measures are effective to
achieve (that is, rationally connected) to that objective. However, it is
unclear how criminalising the unauthorised use and disclosure of information
and documents would be effective to ensure that inquiry officers obtain the
best information available. It may be that having such restrictions allows
individuals to provide information more freely; however, this argument was not
advanced in the minister's response. It is similarly unclear that reversing the
evidential burden would be effective to achieve this objective, noting that
reversing the evidential burden is likely only to assist with the enforcement
of the relevant offences.
2.90
The minister's more general arguments regarding proportionality also
appear to apply to these measures. However, as noted above at [1.82], these
factors alone are unlikely to be sufficient to justify reversing the burden of
proof for the purposes of international human rights law.
2.91
The minister's response also specifically addresses the proportionality
of reversing the evidential burden in relation to whether the disclosure of
information and documents is authorised. The response argues that a prosecution
for disclosure of inquiry records without authorisation would require a
reasonable belief that there was no authorisation or permission, which would be
difficult for the prosecution to establish. However, as noted above at [2.85]
and [2.90], difficulties of this kind are unlikely, on their own, to
sufficiently justify reversing the evidential burden of proof for the purposes
of international human rights law.
2.92
Additionally, it is not clear that establishing the relevant defences
would require a 'reasonable belief' as to the existence of an authorisation or
permission. The defences appear only to require that disclosure is permitted
under section 26 of the regulations, or authorised (by the minister) under
section 27. These matters do not appear to be peculiarly within the knowledge
of the defendant. Rather, it appears that they could be established by
considering the nature of the relevant disclosure in light of the person's
duties, or by making inquiries of the minister. Consequently, it is not clear
that reversing the evidential burden of proof is the least rights-restrictive means
of achieving the objectives of the measures. As such, it is not possible to
conclude that the measures constitute a reasonable and proportionate limitation
on the right to be presumed innocent.
Committee response
2.93
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.94
The committee considers that the reverse burden offences for
refusing to attend as a witness, produce documents or answer a question are likely
to be compatible with the right to be presumed innocent.
2.95
However, based on the information provided and the above analysis,
in relation to the offences of unauthorised use or disclosure of information, the
committee is unable to conclude that the reversal of the evidential burden of
proof is compatible with the right to be presumed innocent.
Intelligence Services Amendment (Establishment of the Australian Signals
Directorate) Bill 2018
Purpose |
Amends the Intelligence
Services Act 2001 to establish the Australian Signals Directorate (ASD)
as an independent statutory agency within the Defence portfolio reporting
directly to the Minister for Defence; amend ASD's functions to include
providing material, advice and other assistance to prescribed persons or
bodies, and preventing and disrupting cybercrime; and give the
Director-General powers to employ persons as employees of ASD. Also makes a
range of consequential amendments to other Acts, including to the Anti-Money
Laundering and Counter-Terrorism Financing Act 2006 to provide that the
Director-General of ASD may communicate AUSTRAC information to a foreign
intelligence agency if satisfied of certain matters |
Portfolio |
Defence |
Introduced |
House of Representatives,
15 February 2018 |
Rights |
Privacy; life; freedom from
torture, cruel, inhuman or degrading treatment or punishment; just and
favourable conditions at work (see Appendix 2) |
Previous reports |
3 & 4 of 2018 |
Status |
Concluded examination |
Background
2.96
The committee first reported on the bill in its Report 3 of 2018,
and requested a response from the Minister for Defence by 11 April 2018.[30] The minister's response to the committee's inquiries was received on 20 April
2018 and discussed in Report 4 of 2018.[31] The committee requested a further response from the minister by 23 May 2018.
2.97
The bill passed both Houses of Parliament on 28 March 2018 and received
Royal Assent on 11 April 2018.
2.98
No further response was received at the time of finalising this report.
Accordingly, the committee's concluding remarks on the bill are made in the
absence of further information from the minister.[32]
Communicating AUSTRAC information to foreign intelligence agencies
2.99
Proposed section 133BA of the Anti-Money Laundering and
Counter-Terrorism Financing Act 2006 (AMLCT Act) provides that the
Director-General of the Australian Signals Directorate (ASD) may communicate Australian
Transaction Reports and Analysis Centre (AUSTRAC) information[33] to a foreign intelligence agency if satisfied of certain matters and may
authorise an ASD official to communicate such information on their behalf. The
matters in respect of which the Director-General is to be satisfied before
communicating AUSTRAC information are:
- the foreign intelligence agency has given appropriate
undertakings for:
- protecting the
confidentiality of the information; and
- controlling the use that
will be made of it; and
- ensuring that the
information will be used only for the purpose for which it is communicated to
the foreign country; and
- it is appropriate, in all the circumstances of the case,
to do so.[34]
Compatibility of the measure with
the right to privacy
2.100
The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information,
particularly the use and sharing of such information and the right to control
the dissemination of information about one's private life. The initial human
rights analysis stated that, as AUSTRAC information may include a range of
personal and financial information, the disclosure of this information to
foreign intelligence agencies engages and limits the right to privacy.
2.101
The right to privacy may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, the measure must pursue a legitimate objective and be rationally
connected and proportionate to achieving that objective. However, the statement
of compatibility for the bill did not acknowledge this limitation on the right
to privacy and therefore did not provide information on these matters.
Accordingly, the committee requested the advice of the minister as to:
- whether the measure is aimed at achieving a legitimate objective
for the purposes of international 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 (including whether the measure is sufficiently
circumscribed and whether there are adequate and effective safeguards in
relation to the operation of the measure).
Minister's response
2.102
In response to the committee's inquiries, the minister provided some
general information as to the purpose of the amendment and existing safeguards,
but the response does not expressly address whether the limitation on the right
to privacy is permissible. The minister's response stated that the amendment
'is critical to ASD's work to combat terrorism, online espionage, transnational
crime, cybercrime and cyber-enabled crime', and further stated:
As an independent statutory agency, this amendment now
ensures that information is able to be appropriately shared, consistent with
how other Australian domestic intelligence and security agencies manage this
type of information. This work across the intelligence and security community
is central to defending Australia and its national interests.
2.103
As noted in the initial human rights analysis, the right to privacy may
be subject to permissible limitations and thus the purpose of the measure is
relevant in determining whether these limitations are permissible.[35] Combating terrorism, online espionage, transnational crime, cybercrime and
cyber-related crime is likely to be a legitimate objective for the purpose of
international human rights law, and the information sharing for this purpose
appears to be rationally connected to this objective.
2.104
Relevant to the proportionality of the measure, the minister's response
provided the following general information about safeguards:
As the committee would be aware, the Australian Transaction
Reports and Analysis Centre (AUSTRAC) has made successive statements and
provided advice to the parliament in relation to the Anti-Money Laundering
and Counter-Terrorism Financing Act 2006, including specifically regarding
the sharing of information with foreign partners, and provided assurances that
while the Act does engage a range of human rights, to the extent that it limits
some rights, those limitations are reasonable, necessary and proportionate in
achieving a legitimate objective.
...
This amendment to the Act does not extend or alter the
current arrangement ASD receives by being part of the Department of Defence.
Similarly, it is consistent with arrangements provided for all other intelligence
and security agencies that require this function. This amendment is not, in
effect, creating a new arrangement for ASD. These provisions reflect
longstanding arrangements for agencies in the intelligence and security
community, and there are strong safeguards in place to ensure the function is
appropriately exercised.
In this context, there already exists strong compliance
safeguards and ASD is subject to some of the most rigorous oversight
arrangements in the country. This includes being subject [to] the oversight of
the Inspector-General of Intelligence and Security, who has the powers of a
standing royal commission and can compel officers to give evidence and hand
over materials. The Inspector-General regularly reviews activities to ensure
ASD's rules to protect the privacy of Australians are appropriately applied.
2.105
While the minister's response indicated that AUSTRAC has previously
reported to parliament on the human rights compatibility of the Anti-Money Laundering
and Counter-Terrorism Financing Act 2006, that did not address the
committee's specific inquiries in relation to the implications of the measures
in this bill and their compatibility with the right to privacy.
2.106
It was acknowledged that the amendment is not creating a new arrangement
for ASD, and that the amendments reflect current arrangements for agencies in
the intelligence and security community. However, scrutiny committees
consistently note that the fact that provisions replicate existing arrangements
does not, of itself, address the committee's concerns. Further information was
therefore required from the minister as to what safeguards are in place to
ensure the function is appropriately exercised. This included information as to
what constitutes an 'appropriate undertaking' for the purpose of section 133BA
of the bill (described at [2.99] above), including what is considered
appropriate protection of confidential information by the foreign intelligence
agency (section 133BA(1)(a)(i)). It was unclear from the information provided
that the measure is a proportionate limitation on the right to privacy.
2.107
The committee therefore sought further information from the minister as
to the compatibility of the measure with the right to privacy including:
- information as to the existing safeguards to protect the right to
privacy (such as the Privacy Act 1988);
- the scope of information that may be subject to information
sharing;
- what constitutes an 'appropriate undertaking' in relation to the
protection of confidential information by the foreign intelligence agency for
the purposes of section 133BA(1)(a)(i) of the bill; and
- any other relevant safeguards that ensure the sharing of
information between the ASD and foreign intelligence agencies is compatible
with the right to privacy.
Committee comment
2.108
As noted above, a further response from the minister was not
received at the time of finalising this report.
2.109
The initial human rights analysis stated that, as AUSTRAC
information may include a range of personal and financial information, the
disclosure of this information to foreign intelligence agencies engages and
limits the right to privacy. The minister's first response to the committee
provided some general information relevant to assessing the proportionality of
the measure. However, further information was required from the minister as to
what safeguards are in place to ensure the measure is appropriately circumscribed.
2.110
In the absence of further information, it is not possible to
conclude that the measure is a proportionate limitation on the right to
privacy.
Compatibility of the measure with
the right to life and the prohibition on torture, cruel, inhuman, or degrading
treatment or punishment
2.111
Under international human rights law every human being has the inherent
right to life, which should be protected by law. The right to life imposes an
obligation on state parties to protect people from being killed by others or from
identified risks. While the International Covenant on Civil and Political
Rights (ICCPR) does not completely prohibit the imposition of the death penalty,
international law prohibits states which have abolished the death penalty (such
as Australia) from exposing a person to the death penalty in another nation
state.
2.112
The United Nations (UN) Human Rights Committee has made clear that international
law prohibits the provision of information to other countries that may be used
to investigate and convict someone of an offence to which the death penalty
applies. In this context, the UN Human Rights Committee stated in 2009 its concern
that Australia lacks 'a comprehensive prohibition on the providing of
international police assistance for the investigation of crimes that may lead
to the imposition of the death penalty in another state', and concluded that
Australia should take steps to ensure it 'does not provide assistance in the
investigation of crimes that may result in the imposition of the death penalty
in another State'.[36]
2.113
The initial analysis stated that the sharing of information
internationally with foreign intelligence agencies could accordingly engage the
right to life. This issue was not addressed in the statement of compatibility.
2.114
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).
2.115
A related issue raised by the measure is the possibility that sharing of
information may result in torture, or cruel, inhuman or degrading treatment or
punishment. Under international law the prohibition on torture is absolute and
can never be subject to permissible limitations.[37] This issue was also not addressed in the statement of compatibility.
2.116
In relation to the prohibition on torture, or cruel, inhuman or
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
2.117
The minister's response did not substantively respond to the committee's
inquiries as to the compatibility of the measures with the right to life and
the prohibition on torture or cruel, inhuman, or degrading treatment or
punishment. In order to be compatible with these rights, information sharing
powers must be accompanied by adequate and effective safeguards.
2.118
However, in this respect, the minister's response provided no
information as to whether there is a prohibition on sharing information with
foreign intelligence agencies where that information could lead to torture or
cruel, inhuman, or degrading treatment or punishment. Similarly, no information
was provided as to whether there is a prohibition on sharing information which
could result in the prosecution of a person for an offence involving the death
penalty. It is unclear whether or not there are any legal or policy
requirements that mandate the consideration of such matters prior to the
disclosure of information to a foreign intelligence organisation. By contrast,
the Minister for Justice has previously provided the committee copies of the
Australian Federal Police (AFP) National Guideline on international
police-to-police assistance in death penalty situations and the AFP National
Guideline on offshore situations involving potential torture or cruel, inhuman
or degrading treatment or punishment. This allowed the committee to assess
whether information sharing powers were compatible with human rights in the
context of these guidelines.[38]
2.119
The minister's response noted that the relevant information sharing
powers were pre-existing and simply reflected current arrangements for agencies
in the intelligence and security community. The minister also noted that there
has been reporting to parliament in relation to similar arrangements. However,
this does not address the relevant human rights concerns. Indeed, as the
prohibition on torture is absolute and cannot be subject to limitations, the
minister's reference in the response to previous assessments of proportionality
does not assist. While proportionality is relevant to an assessment of the
compatibility of the measure with the right to life, in the context of the
information sharing powers it is essential that there are effective safeguards
in place. In relation to whether there are adequate safeguards in place,
information as to what constitutes an 'appropriate undertaking' for the purpose
of section 133BA of the bill (described at [2.99] above) is relevant. This
includes advice as to what is considered appropriate protection of confidential
information by the foreign intelligence agency (section 133BA(1)(a)(i)), and
whether it would include an undertaking that information shared with the
foreign intelligence agency would not result in persons being subject to the
death penalty, torture or ill-treatment. Any further information, such as any
policies about information sharing from the Director-General to a foreign intelligence
agency, and what matters are taken into account when considering such
communications, would also be of assistance.
2.120
In relation to the information provided by the minister relating to
oversight of the ASD by the Inspector-General of Intelligence and Security,
this information may be relevant to determining compatibility of the measure
with human rights. In particular, the right to life and the prohibition against
torture or cruel, inhuman or degrading treatment or punishment require an
official and effective investigation to be undertaken when there are credible
allegations against public officials concerning violations of these rights.
However, further information was required as to the extent to which this
oversight mechanism takes account of whether the ASD's rules are compatible
with Australia's international human rights obligations.
2.121
The committee therefore sought further information from the minister as
to the compatibility of the measure with the right to life and the prohibition
on torture or cruel, inhuman and degrading treatment or punishment.
2.122
In relation to the right to life, the committee sought from the minister
specific information as to any safeguards in place to protect the right to
life, including information as to:
- whether there are any guidelines about information sharing in
death penalty situations and whether the committee could be provided with a
copy of any such guidelines;
- whether there is a prohibition on sharing information where that
information may be used in investigations that may result in the imposition of
the death penalty; and
- whether the requirement that the Director-General receive 'appropriate
undertakings' from the foreign intelligence agency in order to share
information pursuant to section 133BA(1) includes undertakings in relation to
this matter and, if so, what constitutes an 'appropriate undertaking'. If such
matters are set out in departmental policies or guidelines, a copy of those
guidelines would be of assistance.
2.123
In relation to the prohibition on torture, or cruel, inhuman or
degrading treatment or punishment, the committee sought from the minister
specific information as to any safeguards in place to ensure compatibility with
this right, including information as to:
- whether there are any guidelines about information sharing in
situations involving potential torture or cruel, inhuman or degrading treatment
or punishment and whether the committee could be provided with a copy of any
such guidelines;
-
whether there is a prohibition on sharing information where that
information may result in a person being subject to torture, or cruel, inhuman
or degrading treatment or punishment; and
- whether the requirement that the Director-General receive 'appropriate
undertakings' from the foreign intelligence agency in order to share
information pursuant to section 133BA(1) includes undertakings in relation to
this matter and, if so, what constitutes an 'appropriate undertaking'.
2.124
In relation to each of these rights:
- whether the oversight of the ASD by the Inspector-General of
Intelligence and Security, referred to in the minister's response, includes
oversight of whether the ASD's rules are compatible with Australia's
international human rights obligations; and
- any other relevant safeguards that ensure the sharing of information
between the ASD and foreign intelligence agencies is compatible with the right
to life and the prohibition on torture, cruel, inhuman and degrading treatment
or punishment.
Committee comment
2.125
As noted above, a further response from the minister was not received
at the time of finalising this report.
2.126
The initial analysis stated that the sharing of information
internationally with foreign intelligence agencies may engage the right to life
and the prohibition on torture, or cruel, inhuman or degrading treatment or
punishment. The minister's first response did not substantively respond to the
committee's inquiries as to the compatibility of the measure with these rights.
2.127
In the absence of further information, it is not possible to
conclude that the measure is compatible with the right to life and the
prohibition on torture or cruel, inhuman and degrading treatment or punishment. Accordingly, there is a risk that the measure may be incompatible with these
rights.
Migration Legislation Amendment (Temporary Skill Shortage Visa and
Complementary Reforms) Regulations 2018 [F2018L00262]
Purpose |
Repeals the Temporary Work (Skilled)(Subclass
457) visa and introduces new Temporary Skill Shortage (Subclass 482) visa;
implements complementary measures for the Employer Nomination Scheme
(Subclass 186) visa and the Regional Sponsored Migration Scheme (Subclass
187) visa |
Portfolio |
Home Affairs |
Authorising legislation |
Migration Act 1958 |
Last day to disallow |
15 sitting days after
tabling (tabled Senate 19 March 2018) |
Right |
Freedom of association (see Appendix 2) |
Previous report |
5 of 2018 |
Status |
Concluded examination |
Background
2.128
The committee first reported on the regulations in its Report 5 of
2018, and requested a response from the Minister for Home Affairs by 4 July
2018.[39]
2.129
A response from the Minister for Citizenship and Multicultural
Affairs was received on 10 July 2018. The response is discussed below and is
reproduced in full at Appendix 3.
Criteria for nomination – associated persons
2.130
Section 2.72 of the regulations sets out the criteria which apply to persons
sponsoring or nominating a proposed occupation for persons holding or applying
for a Subclass 482 (Temporary Skills Shortage) Visa (TSS visa).[40] Section 2.72(4) requires that, to approve a nomination, the minister must be
satisfied that either:
- there is no adverse information known to Immigration
about the person or a person associated with the person; or
- it is reasonable to disregard any adverse information
known to Immigration about the person or a person associated with the person.
2.131
It is also one of the criteria for obtaining a TSS visa that there is no
adverse information known to Immigration about the person who nominated the
nominated occupation[41] or a person 'associated with' that person.[42]
2.132
Section 5.19(4) of the regulations introduces the same requirement for
persons nominating skilled workers under the Subclass 186 and Subclass 187
visas.[43]
2.133
'Adverse information' is defined in section 1.13A of the regulations to
mean information that the person:
- has contravened a law of the Commonwealth, a State or a
Territory; or
- is under investigation, subject to disciplinary action or
subject to legal proceedings in relation to a contravention of such a law; or
- has been the subject of administrative action (including
being issued with a warning) for a possible contravention of such a law by a
Department or regulatory authority that administers or enforces the law; or
- has become insolvent (within the meaning of section 95A
of the Corporations Act 2001); or
- has given, or caused to be given, to the Minister, an
officer, the Tribunal or an assessing authority a bogus document, or
information that is false or misleading in a material particular.
2.134
Section 1.13B provides that persons are 'associated with' each other if:
- they:
- are or were spouses or de
facto partners; or
- are or were members of the
same immediate, blended or extended family; or
- have or had a family-like
relationship; or
- belong or belonged to the
same social group, unincorporated association or other body of persons; or
- have or had common friends or
acquaintances; or
- one is or was a consultant,
adviser, partner, representative on retainer, officer, employer, employee or
member of:
- the other; or
- any corporation or other body
in which the other is or was involved (including as an officer, employee or
member); or
- a third person is or was a consultant, adviser, partner,
representative on retainer, officer, employer, employee or member of both of
them; or
- they are or were related bodies corporate (within the
meaning of the Corporations Act 2001); or
- one is or was able to exercise influence or control over
the other; or
- a third person is or was able to exercise influence or
control over both of them.
Compatibility of the measure with
the right to freedom of association
2.135
The right to freedom of association protects the right of all persons to
group together voluntarily for a common goal and to form and join an
association.[44] This right supports many other rights, such as freedom of expression, religion, assembly and political
rights. Without freedom of association, the effectiveness and value of these
rights would be significantly diminished.
2.136
The initial human rights analysis stated that introducing a requirement
that the minister may refuse nomination where there is adverse information
about a person associated with the person nominating engages and limits the
right to freedom of association, as it has the potential for the measure to
restrict a person's ability to freely associate. The statement of compatibility
does not acknowledge that the right to freedom of association is engaged by the
measure.
2.137
Limitations on the
right to freedom of association are only permissible where they are 'prescribed
by law' and 'necessary in a democratic society in the interests of national
security or public safety, public order, the protection of public health or
morals, or the protection of the rights and freedoms of others'.[45] This requires an assessment of whether the measure pursues one of these
legitimate objectives, is rationally connected to that objective and is a
proportionate means of achieving the objective.
2.138
No information is
provided in the statement of compatibility as to the objective of the measure. However,
the explanatory statement provides the following information as to why it is
necessary to have a broad definition of 'associated with' in the regulations:
The definition has been drafted in terms which encompass the
wide range of associations among family, friends and associates which can be
used to continue unacceptable or unlawful business practices via different
corporate entities.
The breadth of these provisions is necessary to maintain the
integrity of Australia's sponsored worker programs. There are two safeguards
against inappropriate reliance on the provisions. The Minister always has a
discretion to disregard adverse information and associations if it is
reasonable to do so. That discretion would be exercised to disregard
information which did not have serious bearing on the suitability of the
business to sponsor overseas workers. Further, if the decision relates to a
business operating in Australia, all relevant decisions – refusal to approve a
person as a sponsor, refusal to approve a nomination, and refusal to grant a
visa to the nominated employee – are subject to independent merits review by
the Administrative Appeals Tribunal. The Government considers that these
provisions strike an appropriate balance between the need to uphold the
integrity of the sponsored worker program and the need to ensure consistent and
fair decision making.[46]
2.139
A measure is likely to be rationally connected if it can be shown that
the measure is likely to be effective in achieving that objective. In this
case, it was unclear whether merely being associated with a person who may have
engaged in a range of specified conduct ('adverse information') has specific
relevance to a person's suitability as a sponsor or nominator. In addition, it
was noted that the definition of 'associated with' is very broad, extending to
persons who 'belong or belonged to the same social group, unincorporated
association or other body of persons'. Taking into account the potential
breadth of its application, there were concerns that the definition of
'associated with' may not be sufficiently circumscribed such that the measure may
not be a proportionate way to achieve that objective. In this respect, it was
noted that there is ministerial discretion to disregard any adverse information
about the person or a person associated with the person.[47] It was unclear that the ministerial discretion to disregard the adverse
information of the associated person, in and of itself, offers sufficient
protection such that the measure may be regarded as proportionate to its
objective.
2.140
The committee therefore sought the advice of the minister as to the
compatibility of the measure with the right to freedom of association,
including:
- whether there is reasoning or
evidence that establishes that the stated objective addresses a pressing or
substantial concern or whether the proposed changes are otherwise aimed at
achieving a legitimate objective;
- whether the measure is
rationally connected (that is, effective to achieve) that objective; and
- whether the measure is a
proportionate means of achieving its objective (including whether the
definition of 'associated with' is sufficiently circumscribed).
Minister's response
2.141
In relation to whether the measure pursues a pressing and substantial
concern, the minister's response provides the following information:
With the introduction of the Temporary Skill Shortage (TSS)
visa in March 2018, the Department expanded the definition of 'associated with'
at Regulation 1.13B due to integrity concerns in the previous subclass 457 visa
program. The previous definitions were inadequate to deal with some abuses
within the subclass 457 visa program. This was particularly in situations where
previously sanctioned/cancelled sponsors closed the operations of one company,
and then created a new legal entity to continue using the 457 /TSS program to
sponsor overseas workers.
2.142
Preventing the abuse of certain classes of visas and preserving the
integrity of the sponsored work program is likely to constitute a legitimate
objective for the purposes of international human rights law. In this respect,
the measure may also be aimed at protecting the rights and freedoms of others.
2.143
The minister's response also provides information about how the measure
is effective to achieve (that is, rationally connected to) the objective:
The expanded definition of 'associated with' under Regulation
1.13B allows the Department to address, among other issues, phoenixing
activities by companies and networks of non-compliant entities (for example,
brothers running two separate companies engaged in visa fraud).
2.144
In addition, the case study in the minister's response provides a
practical example of how, in certain circumstances, an association with
particular individuals or companies that are engaged in conduct that would
constitute 'adverse information' directly affects the suitability of a sponsor
or nominator who is associated with the individual or company, especially where
the associated person has engaged in conduct that is non-compliant with the
Migration Act. This information addresses concerns raised in the initial human
rights analysis about the extent of the connection between a nominator's
association with another person about whom Immigration has 'adverse
information', and efforts to prevent the abuse of certain visa classes and
preserve the integrity of the sponsored work program. In light of this
information, it appears that the measure is likely to be effective to achieve
the stated objective.
2.145
In relation to the proportionality of the measure, the minister's
response also provides information about whether less rights-restrictive
approaches are reasonably available to achieve the legitimate objective. In
this respect, the case study provided by the minister indicates that the
previous measure was inadequate to address the stated objective as it enabled
company directors of sponsoring businesses that were non-compliant with the
Migration Act to reduce the risk of future identification and sanction by the
Department by setting up multiple companies to take over the operations of the
initial company and become sponsors. The minister explains that the 'added
benefit' of this approach was that each sponsor from the new company would be
considered low risk to the Department, due to the low number of visa holders
nominated per company. In essence, the measure is designed to look behind the
'corporate veil' to capture instances of non-compliance or abuse.
2.146
The case study also indicates that the breadth of the definition of
'associated with' may be necessary to capture some circumstances which the
measure is designed to address; namely, the use of extended networks and
companies by non-compliant entities to continue to sponsor overseas workers.
However, at the same time, it is noted that 'associated with' is defined very
broadly to include a range of relationships. This raises concerns that the
measure, as drafted, may not constitute the least rights restrictive approach
to achieving the objective sought. However, the minister's response reiterates
that 'there are limits to what is relevant for the purposes of taking into
account "adverse information"'. As outlined in paragraph 2.133,
'adverse information' is limited to information that is known to Immigration
and relates to whether a person has contravened Australian law, whether they
are insolvent, and whether they have given a prescribed official a bogus
document or false or misleading information.[48]
2.147
Additionally, the minister's response notes that most of the sponsors
affected by the regulations will be companies, rather than individuals. People
who are affected by the regulations will have the ability to seek independent
merits review of the minister's decision regarding the presence of 'adverse
information' known to Immigration about them or their associate, or the
reasonableness of disregarding any adverse information known to Immigration
about them or their associate. [49]
2.148
In combination, these safeguards support a conclusion that the measure
may be a proportionate limitation on the right to freedom of association.
Committee response
2.149
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.150
In light of the information provided in the minister's response,
the measure may be a proportionate limitation on the right to freedom of
association.
Social Security (Assurances of Support) Determination 2018 [F2018L00425]
Social Security (Assurances of Support) Amendment Determination 2018 [F2018L00650]
Purpose |
Introduces requirements for
individuals or bodies to give assurances of support for visa entrants |
Portfolio |
Social Services |
Authorising legislation |
Social Security Act 1991 |
Last day to disallow |
F2018L00425: 15 sitting
days after tabling (tabled House of Representatives and Senate 8 May 2018)
F2018L00650: 15 sitting
days after tabling (tabled House of Representatives 24 May 2018) |
Right |
Protection of the family
(see Appendix 2) |
Previous report |
5 of 2018 |
Status |
Concluded examination |
Background
2.151
The committee first reported on the determinations in its Report 5 of
2018, and requested a response from the Minister for Social Services by 4
July 2018.[50]
2.152
The minister's response to the committee's inquiries was received on 10
July 2018. The response is discussed below and is reproduced in full at Appendix 3.
Requirements for persons to give assurances of support
2.153
The determination (as amended by the amended determination)[51] seeks to introduce requirements that must be met for an individual or body (an
assurer) to be permitted to give an 'assurance of support' for migrants seeking
to enter Australia on certain visa subclasses (assurees).[52] An assurance of support is a legally binding commitment by the assurer to
financially support the assuree for the duration of the assurance period,[53] including assuming responsibility for repayment of any recoverable social
security payments received by the assuree during the assurance period.[54]
2.154
Individuals who give an assurance of support must meet an income
requirement in order to be an assurer.[55]
Section 15(2) of the amended determination provides that an individual giving
an assurance of support as a single assurer meets the income requirement for a
financial year if the amount of the individual's assessable income for the year
is at least the total of:
- the
applicable rate of newstart allowance multiplied by the total of:
- one
(representing the individual giving the assurance of support); and
- the total
number of adults receiving assurance under an assurance of support given by the
person; and
- the
amount obtained by adding together, for each child of the person giving
assurance under an assurance of support:
- the
base FTB child rate[56] as at 1 July in the financial year; and
- the
applicable supplement amount[57] as at 1 July in the financial year.[58]
2.155
The amended determination provides an example of how this provision is
designed to operate:
If a person with 2 children applies to give an assurance of
support for a migrating family of 2 parents and 2 children on 1 July 2017,
the minimum required income amount of the person is the total of:
- $45
186 (the applicable newstart allowance of $15 062 multiplied by the total
number of adult assurers and adult assurees (3)); and
- the
base FTB [(family tax benefit)] child rate and the applicable supplement amount
for each of the assurer's children.
The base FTB child rate and the applicable supplement are
only added to the income requirement for the assurer’s children. They do not
apply to the children of the assurees.[59]
2.156
For an individual that gives an assurance of support jointly with
another individual or other individuals, the individual assurer meets the
income requirement for a financial year if the combined amount of assessable
income of the assurers for the year is at least the total of the following
amounts:
- the
applicable rate of newstart allowance multiplied by the total of:
- the
total number of individuals giving assurance under the assurance of support;
and
- the
total number of adults receiving assurance under an assurance of support given
by the individual; and
- the
amount obtained by adding together, for each child of an individual giving assurance
under the assurance of support:
- the
base FTB child rate as at 1 July in the financial year; and
- the
applicable supplement amount as at 1 July in the financial year.[60]
2.157
The amended determination provides an example of how this provision is
designed to operate:
If a joint assurer (who has a partner and 2 children) gives
an assurance of support with the partner for a migrating family of
2 parents and 2 children on 1 July 2017, the combined minimum required
income of both assurers is the total of:
- $60 248 (the applicable newstart allowance of $15 062 multiplied by the total
number of adult assurers and adult assurees (4)); and
-
the base FTB child rate and the applicable supplement amount for each of the
assurers’ children.
The base FTB child rate and the applicable supplement are
only added to the income requirement for the assurers' children. They do not
apply to the children of the assurees.[61]
Compatibility of the measure with
the right to protection of the family
2.158
The right to respect for the family is protected by articles 17 and 23
of the International Covenant on Civil and Political and Rights (ICCPR) and
article 10 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR). Under these articles, the family is recognised as the natural
and fundamental group unit of society and, as such, is entitled to protection.
An important element of protection of the family is to ensure family members
are not involuntarily separated from one another. Laws and measures which
prevent family members from being together will engage this right.
2.159
Additionally, under article 3(1) of the Convention on the Rights of the
Child (CRC), Australia is required to ensure that, in all actions concerning
children, the best interests of the child are a primary consideration. It
requires legislative, administrative and judicial bodies and institutions to
systematically consider how children's rights and interests are or will be
affected directly or indirectly by their decisions and actions.[62] Under article 10 of the CRC, Australia is required to treat applications by
minors for family reunification in a positive, humane and expeditious manner.
2.160
A measure which limits the ability of certain family members to join
others in a country is a limitation on the right to protection of the family.[63] As noted in the initial human rights analysis, by requiring individuals
(relevantly, including family members) to meet certain income requirements in
order to sponsor family members to come to Australia, the measure creates a
financial barrier for family members to join others in a country and therefore
may limit the right to protection of the family.
2.161
Limitations on the right to protection of the family will be permissible
where the limitation is in pursuit of a legitimate objective, and is rationally
connected and proportionate to the pursuit of that objective.
2.162
The statement of compatibility to the determination and the amended
determination do not acknowledge that this right is engaged by the measure. However,
the statement of compatibility describes the objective of the determination as
'protecting social security outlays by the Commonwealth while allowing the
migration of people who might not otherwise be permitted to come to Australia'.[64] While this may be capable of constituting a legitimate objective, further
information was required to determine whether the objective is legitimate in
the context of this specific measure. In this context, the committee's usual
expectation where a measure may limit a human right is that the accompanying
statement of compatibility provides a reasoned and evidence-based explanation
of how the measure supports a legitimate objective for the purposes of
international human rights law.
2.163
Additionally, as noted above, a limitation must be rationally connected
to, and a proportionate way to achieve, its legitimate objective in order to be
justifiable in international human rights law. As to proportionality, while it
was noted that the income requirement for assurers is significantly lower in
the amended determination than the original determination,[65] the income requirement in the amended determination is nonetheless substantial.
Further information was required to determine whether the measure is rationally
connected and proportionate to the stated objective of the measure.
2.164
The committee therefore sought 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 or whether the proposed changes are otherwise aimed at
achieving a legitimate objective for the purposes of international human rights
law;
- whether the measure is
rationally connected to (that is, effective to achieve) that objective; and
- whether the measure is a
proportionate means of achieving its objective.
Minister's response
2.165
In relation to whether the measure is aimed at achieving a legitimate
objective for the purposes of international human rights law, the minister's
response notes that the purpose of the determination is to continue existing
requirements under the Assurances of Support (AoS) scheme following the sunset
of the previous determination. The minister also reiterates that the amended
determination reduces the AoS income requirements in the original determination
and accordingly:
...enhance[s] the prospects of families joining each other and
the right to protection of families for the purposes of international human
rights law.
2.166
This is positive from the perspective of the right to the protection of
the family. However, as noted in the initial human rights analysis, 'the income
requirement in the amended determination is nonetheless substantial', and this
limits the right to protection of the family, because it continues to restrict
the ability of certain family members to join others. The information from the
minister, while useful, does not appear to identify the legitimate objective
sought to be achieved by this limitation on the right to protection of the
family.
2.167
As noted above at [2.162], the statement of compatibility to the amended
determination describes the objective of the determination as 'protecting
social security outlays by the Commonwealth while allowing the migration of
people who might not otherwise be permitted to come to Australia'.[66] The initial human rights analysis noted that protecting the sustainability of
the social security system could be capable of constituting a legitimate
objective; however, further reasoning or evidence would be required to
determine whether this objective was legitimate in the context of the specific
measure.[67] It is acknowledged that the
measure may lead to fewer potential costs to the social security system. However,
it would have been useful if the minister's response had provided additional
information as to why the measure is needed from a fiscal perspective or how
the proposed measure will ensure the sustainability of the social welfare system.
While not specifically put in these terms, it appears that, in the context of
existing restrictions on access to social security for new migrants and the
information provided by the minister, the measure may also pursue the objective
of assisting to ensure an adequate standard of living for newly arrived
migrants. Taken together, these objectives may be capable of constituting a
legitimate objective for the purposes of international human rights law.
However, further information from the minister would have been useful in this
respect.
2.168
In relation to how the measure is effective to achieve (that is,
rationally connected to) the objective, the minister's response explains that:
the requirements under the AoS scheme ensures an assurer has
the potential to provide the level of financial support required by a visa
entrant.
2.169
A measure which
ensures that a person can access financial support from a source other than the
social security system is rationally connected to ensuring the sustainability
of the social security system, because it reduces the amount of potential
future social security outlays by the Commonwealth. In this respect, such a
measure is also rationally connected to ensuring an adequate standard of living
for newly arrived migrants as it seeks to guarantee access to financial support
for these migrants from a source other than social security.
2.170
Regarding the proportionality of the proposed measure, the minister's
response identifies the following safeguards for visa entrants to protect
families in the event that an assurer is not able to provide them with adequate
support:
If a potential assurer does not meet the AoS income
requirements, the option of entering into a joint AoS arrangement is available.
2.171
These features insert a degree of flexibility into the scheme to
safeguard the right to the protection of the family, where a potential assurer
does not meet income requirements or is otherwise unable to provide adequate
support. This information indicates that the measure may be proportionate to
the objective being sought.
Committee response
2.172
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.173
In light of the information provided by the minister and the
preceding analysis, the committee considers that the measure may be compatible
with the right to protection of family.
Various Parks Management Plans[68]
Purpose |
Provides management plans
for particular parks |
Portfolio |
Environment and Energy |
Authorising legislation |
Environment Protection
and Biodiversity Conservation Act 1999 |
Last day to disallow |
15 sitting days after
tabling (tabled Senate 21 March 2018, House 26 March 2018).
F2018L00327: subject to a motion to disallow by Senator Pratt on
28 March 2018 |
Right |
Freedom of expression (see Appendix
2) |
Previous report |
5 of 2018 |
Status |
Concluded examination |
Background
2.174
The committee first reported on the plans in its Report 5 of 2018,
and requested a response from the Minister for the Environment and Energy by 4
July 2018.[69]
2.175
The minister's response to the committee's inquiries was received on
25 July 2018. The response is discussed below and is reproduced in full at Appendix 3.
Regulation of commercial media within the parks
2.176
Each of the park management plans include rules for commercial media to
operate in the parks. The plans provide that news of the day reporting may be
undertaken on terms determined by the Director and subject to the Director
being notified. Commercial media activities other than news of the day
reporting are subject to further conditions including a permit being issued.[70]
Compatibility of the measure with
the right to freedom of expression
2.177
The right to freedom of expression includes the communication of
information or ideas through the media. Providing that news of the day
reporting is to be on the terms determined by the Director engages and may
limit the right to freedom of expression. The requirement that other commercial
media activities are subject to further conditions including the issuing of a
permit also engages and limits this right.
2.178
While the right to freedom of expression may be subject to permissible
limitations in a number of circumstances,[71] the statements of compatibility provide no assessment of this right. Accordingly,
it was unclear from the information provided the extent of any limitation on
the right to freedom of expression and whether that limitation is permissible.
2.179
The committee therefore sought the advice of the minister as to the
compatibility of the measure with the right to freedom of expression including
information as to:
-
the extent of the limitation the measure imposes on the right to
freedom of expression (such as, information about the terms determined by the
Director in relation to news of the day reporting and the process for the issue
of a permit or permission for other reporting);
- 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 (including the existence of any safeguards).
Minister's response
2.180
The minister's response provides additional information about the nature
and extent of the limitation that the measures impose on the right to freedom
of expression. For example, in relation to the authorisation required for
commercial media activities other than news of the day reporting, the minister
explains that:
...the assessment of permit/licence applications and the
conditions placed on those authorisations relates only to the impact on park
values and other park users. It does not consider the manner in which images or
sounds will be used or place conditions on their use.
2.181
In this respect, the minister's response states that the relevant
measures 'do not control how images or sounds are used and thereby place no
restriction on the right to freedom of expression'. The minister's response
also explains that the Environment Protection and Biodiversity Conservation
Act 1999 (EPBC Act) currently prohibits actions for commercial purposes,
including photography, filming or sound recording for commercial purposes,
unless the activities are conducted in accordance with the relevant management
plan. On this basis, the response states that 'the management plans do not
create a restriction on media activities – they relieve one'.
2.182
While this is positive from the perspective of the right to freedom of
expression, the management plans nevertheless engage and limit the right to
freedom of expression, by enabling the Director to impose terms or conditions
on the access of commercial media to parks. Accordingly, the relevant question
is whether the limitation on the right to freedom of expression is permissible
as a matter of international human rights law.
2.183
In relation to whether the measure is aimed at achieving a legitimate
objective for the purposes of international human rights law, the minister's
response states that 'the management plan objective [is to] protect the
natural, cultural and heritage values of marine parks'. This is likely to
constitute a legitimate objective for the purposes of international human
rights law.
2.184
The minister's response provides the following information about how the
measure is effective to achieve (that is, rationally connected to) the stated
objective:
...the terms determined by the Director or the conditions of
authorisations specifically aim to avoid or mitigate impacts and risks of
commercial media activities within marine parks, to as low as reasonably
practicable.
2.185
The minister notes, for example, that a condition may be 'placed on a
licenced or permitted commercial media activity in a marine park related to the
use of a chemical in the water to alter marine bird behaviour'. As such, a
measure which reduces or mitigates the negative impact of certain activities on
a marine park would appear to be rationally connected to (that is, effective to
achieve) the protection and conservation of the natural, cultural and heritage
value of marine parks.
2.186
Regarding the proportionality of the proposed measure, the minister's
response states that the director's powers to determine the terms or conditions
upon which commercial media carry out their activities are limited by reference
to the Director's functions under section 514D of the EPBC Act. Under this
section, the Director's functions 'are to protect, conserve and manage
biodiversity and heritage in Commonwealth reserves'. Consequently, the terms or
conditions imposed by the Director are significantly circumscribed, because
they can only be directed towards the Director's prescribed functions.
2.187
In addition, the minister's response explains that guidance and policies
will be made available to commercial media to explain the basis upon which
terms will be determined or applications assessed. For example, in relation to
commercial media activities for reporting news of the day, the minister's
response states that 'guidance on the "terms determined by the Director"
will be prepared for these activities and made available on the Parks Australia
website'. For commercial media activities other than reporting the news of the
day, the minister's response explains that:
Following receipt of the application [for a permit or licence],
decisions about activities will be consistent with the plan and zone objectives
and take into account the impacts and risks of the activity on the park values.
The assessment is not based on how the images/sounds will be used or what the
applicant intends to convey through those images/sounds. The impacts and risks
will be assessed in accordance with policies established under the assessments
and authorisations program outlined in the management plans.
2.188
The minister's response also provides the following information about
why commercial activities other than news of the day reporting are subject to
greater restrictions:
Activities for news of the day reporting are likely to be
time sensitive to capture breaking news or an event of the moment and are
typically small scale and less likely to impact park values. The number of
crew, amount of equipment and duration of filming are considered in assessing
the risk to values. These activities don't require individual authorisation as
opposed to other commercial media activities such as a film or documentary
which are better managed by permit or licence, given the greater risk they may
pose to park values (such as larger crew and equipment needs and more time for
filming).
...
The difference in approach reflects that permitted or
licensed projects typically pose greater impacts and risks to park values.
2.189
This information further indicates that the measure is sufficiently
circumscribed and is only as extensive as necessary to achieve the stated
objective of protecting and conserving the natural, cultural and heritage value
of marine parks.
Committee response
2.190
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.191
In light of the information provided by the minister and the preceding
analysis, the committee considers that the measure is likely to be compatible
with the right to freedom of expression.
Mr Ian Goodenough MP
Chair
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