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Part 2
Legislative
Instruments
introduced 10–14 September 2012
2.1
The committee has considered 113 legislative instruments introduced in
the Parliament between 10 and 14 September 2012. The full list of instruments
scrutinised by the committee can be found in Appendix 2.
2.2
Most of these instruments appear not to raise human rights concerns and
have been registered with statements of compatibility that the committee
considers to be adequate.
2.3
A number of instruments have been introduced with statements of
compatibility that do not fully meet the committee's expectations. As the
instruments in question do not raise human rights compatibility concerns, the
committee proposes to write to the relevant Ministers in a purely advisory
capacity providing guidance on the preparation of statements of compatibility.
The committee hopes that this approach will assist in the preparation of future
statements of compatibility that conform more completely to the committee's
expectations.
2.4
The committee has identified one instrument that it considers to be
compatible with human rights, but for which it seeks clarification from the
relevant Minister.
Customs Act 1901 - CEO Directions No. 1
of 2012
FRLI ID: F2012L01684
Introduced into the House of Representatives and the Senate on 16 August 2012
Portfolio: Attorney-General
Committee view
2.5
The committee considers that this instrument is likely to be consistent
with human rights standards for the use of force as required by articles 6(1)
and 7 of the ICCPR. However, the committee seeks clarification from the
Attorney-General regarding the reason why CEO Order 1 (2010) - Use of Force,
which sets out the applicable Customs and border Protection policy for the use
of force, is not a publicly available document and how this may be considered
to meet the requirement for laws authorising limits on rights to be publicly
accessible.
Purpose of the instrument
2.6
These directions impose the same obligations on customs officers of the
Indian Ocean Territories Customs Service (IOTCS) as those which apply to
mainland officers of the Australian Customs and Border Protection Service
(ACBPS) under CEO Order 1 (2010) - Use of Force in relation to the deployment
and use of firearms and items of personal defence equipment, and the use of
force in the performance of duties.
2.7
Consequently, an IOTCS officer may only use force in accordance with the
same procedures that apply to an ACBPS officer, including in any of the
following circumstances:
- aiming or discharging a firearm, other than for the purpose of
destroying an animal or signalling a vessel to heave to;
-
drawing or using a baton against another person;
- aiming or using a chemical agent;
- using any compliance or restraint hold, strike, kick or other
operational safety application against another person; or
- using handcuffs or similar restraint against a person.
Compatibility with human rights
Right to life and Prohibition
against torture, or cruel, inhuman or degrading treatment
2.8
The statement of compatibility states that the directions do not raise
any human rights issues and are compatible with the human rights defined in the
Human Rights (Parliamentary Scrutiny) Act 2011.
2.9
The committee notes that use of force provisions engage the right to
life in article 6 of the International Covenant on Civil and Political Rights
(ICCPR) and the prohibition against torture, or cruel, inhuman or degrading
treatment in article 7 of the ICCPR.
2.10
Human rights standards require that there must be clear and detailed
laws governing the use of force by public officials. In particular, force
should only be used when strictly necessary and in a manner proportionate to a
legitimate purpose.
2.11
The explanatory statement to the directions states that the applicable
Customs and Border Protection policy on the use of force is contained in the
2010 Order but does not provide any relevant information as to what these might
encompass. The committee notes that the 2010 Order is a classified document.
2.12
In order to form a view whether these directions are compatible with the
human rights engaged, the committee obtained a copy of the CEO Order 1 (2010) -
Use of Force from Australian Customs and Border Protection Service and reviewed
the applicable policy on the use of force.
2.13
The committee considers that the 2010 Order is likely to be consistent
with human rights standards for the use of force as required by articles 6(1)
and 7 of the ICCPR.
2.14
However, the committee notes that limitations on human rights must have
a clear legal basis, which is accessible and foreseeable. This means that the
law authorising the limit of the right must be:
-
publicly accessible so that people have an adequate indication of
how the law limits their rights; and
- sufficiently precise to enable people to regulate their behaviour
accordingly.
2.15
The committee proposes to write to the Attorney-General to seek
clarification as to why the 2010 order is not available publicly and how this
may be considered to meet the requirement for laws authorising limits on rights
to be publicly accessible.
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