2.2
Correspondence relating to these matters is included at Appendix 3.
Export Control Bill 2017
Purpose |
Amends the framework for
regulating the export of goods, including agricultural products and food, from
Australian territory |
Portfolio |
Agriculture and Water
Resources |
Introduced |
Senate, 7 December 2017 |
Rights |
Privacy; freedom of
association; work (see Appendix 2) |
Previous report |
3 of 2018 |
Status |
Concluded examination |
Background
2.3
The committee first reported on the bill in its Report 3 of 2018,
and requested a response from the Minister for Agriculture and Water Resources
by
11 April 2018.[1]
2.4
The minister's response to the committee's inquiries was received on
30 April 2018. The response is discussed below and is reproduced in full at Appendix 3.
Requirement to be a 'fit and proper person'
2.5
The bill would impose conditions on the export of some types of goods,
including requiring that: a person holds an export licence; an establishment or
premises is registered for export operations; and the export is in accordance
with an approved export arrangement. Under the bill, the secretary[2] may refuse or suspend a licence, registration or an arrangement if the
applicant or a person who participates or would participate in managing or
controlling the export business is not a 'fit and proper person'.[3] Subsection 372(2) of the bill provides that in determining whether the person
is a 'fit and proper person' the secretary must have regard to a range of
matters including whether the person or an associate of that person:
- has been convicted of an offence or ordered to pay a pecuniary
penalty under particular legislation;[4]
- has provided false, misleading or incomplete information in an
application and/or to the secretary; or
-
had an application, registration or licence revoked, suspended or
refused.[5]
2.6
In determining whether the person is a 'fit and proper person' the
secretary may also have regard to:
- whether the person has been convicted or ordered to pay a penalty
under any other Australian law;
- the interests of the industry or business that relate to the person's
export business; or
- any other relevant matter.[6]
2.7
Section 373 further provides that the rules may prescribe kinds of
persons who are required to be 'fit and proper persons' for the purposes of the
bill.
Compatibility of the measure with
the right to work, the right to freedom of association and the right to
equality and non-discrimination
2.8
The right to work provides that everyone must be able to freely accept
or choose their work, and includes a right not to be unfairly deprived of work.
The right to work also requires that state parties provide a system of protection
guaranteeing access to employment. This right must be made available in a
non-discriminatory manner.[7] 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.[8]
2.9
The initial human rights analysis stated that by providing that in order
to engage in certain export related activities a person must be 'fit and
proper', the measure may engage and limit the right to work, the right to
equality and non-discrimination and the right to freedom of association. This
is because a person may be unable to engage in export related business due to,
for example, their conduct or the conduct of an associate. It was noted that
the 'fit and proper person' test may encompass a broad range of conduct which
also extends to the conduct of the person's associates. In this respect, the
'fit and proper person' test may also penalise a person for associating with
certain individuals. The right to work, the right to equality and
non-discrimination and the right to freedom of association may be subject to
permissible limitations provided that such measures pursue a legitimate
objective, are rationally connected to that objective and are a proportionate
means of achieving that objective.
2.10
In relation to the application of the 'fit and proper person' test, the
statement of compatibility states that the measure pursues 'the legitimate
objective of ensuring that persons who have been approved to export goods from
Australian territory are persons who are trustworthy... [as] the government needs
to be certain that the persons responsible for export operations will not abuse
the trust placed in them'.[9] Given the particular regulatory context, the initial analysis stated that this
is likely to be a legitimate objective for the purposes of international human
rights law.
2.11
The measure would also appear to be rationally connected to this
objective. The statement of compatibility explains that the reason why the
measure extends to a person's business associates is that:
Business associates and others may have influence over the
primary person such that they may be able to compel them to undertake illegal
activities on their behalf, through inducement or other means. Putting a fit
and proper person test in place will notify the Department of any associates of
the primary person who may pose a risk and allow them to take action to ensure
Australia's agricultural exports are not compromised.[10]
2.12
In relation to the measure's application, the statement of compatibility
notes that the requirements will only extend to persons who are voluntarily
seeking to benefit from the export of goods from Australian territory. This is
a relevant factor in respect of whether the measure is a proportionate
limitation on human rights.
2.13
Further in relation to the proportionality of the limitation, the
statement of compatibility notes that section 372 provides an exhaustive list
of factors to be taken into account by the secretary in determining whether the
person is a 'fit and proper' person, that associates are limited to those
defined in section 13 of the bill and that the secretary's decision is
reviewable.[11] While these factors are relevant, it was noted that the secretary's discretion
to determine that a person is not a fit and proper person is still potentially
very broad and may allow the secretary to take account of, for example, types
of criminal conviction that may be less serious and 'any other matter' which
the secretary considers relevant. It was unclear from the information provided
why each such category of factor needs to be taken into account to achieve the
legitimate objective of the measure. Further, while 'associates' are restricted
to those set out in section 13, this list is still substantial and
includes family members, advisers, employees and business contacts. This raises
a concern that the limitation may not be the least rights restrictive approach.
2.14
Finally, who is required to be a 'fit and proper person' will be able to
be set out in delegated legislation. This raises a related concern as to
whether the classes of person subject to the requirement are sufficiently
circumscribed.
2.15
The committee therefore sought the advice of the minister as to whether:
- the limitation is a reasonable and proportionate measure for the
achievement of its stated objective (including whether the measure is
sufficiently circumscribed, the breadth of the secretary's discretion and the
availability of relevant safeguards); and
-
consideration could be given to: amending section 372 to restrict
the range of factors that the secretary may consider as adversely affecting
whether a person is a 'fit and proper person'; restricting the list of
'associates' in section 13; and setting out who is required to be a fit
and proper person in primary legislation rather than in delegated legislation.
Minister's response
2.16
The minister's response provides some further information in relation to
the importance of the measure and the role of the fit and proper person test:
A fit and proper person test can be used to consider a person
or company's history of compliance with Commonwealth legislation and then deny
them approval to register an establishment, or to suspend, revoke or alter the
conditions on an existing approved arrangement. This ensures that persons or
companies seeking these approvals are suitable entities to be responsible for
the appropriate management of relevant risks. For example, an approved
arrangement may set out the ways in which an exporter will meet legislative and
importing country requirements in relation to a kind of prescribed goods. It is
important that such persons are considered fit and proper to be able to conduct
these activities and that there is no reason to believe that the person will
not operate within the scope of their approval or adhere to any conditions or
requirements that are placed on it.
2.17
In relation to the proportionality of the limitation, the minister's
response provides the following information:
Clause 372 of the Bill will provide the Secretary with the
ability to apply a fit and proper person test in circumstances provided for by
the Bill or prescribed by the Rules. Persons will be required to notify the
Secretary if they have been convicted of certain specified offences, or ordered
to pay a pecuniary penalty in relation to certain specified contraventions
(clause 374 of the Bill). When determining whether a person is a fit and proper
person, the Secretary may consider the nature of the offences resulting in the
conviction or pecuniary penalty, the interest of the industry, or industries,
relating to the person's export business and any other relevant matter. Whilst
these factors, along with a person's associates, will be taken into account by
the Secretary when applying the fit and proper persons test, these matters do
not, in and of themselves, automatically give rise to a negative finding.
Rather, it will be up to the Secretary to consider whether a person is fit and
proper as a result of these matters.
The consideration as to whether a person is a fit and proper
person forms part of the decision in relation to an application under the Bill
(e.g. to register an establishment), and is a reviewable decision under the
Bill. This is reflective of administrative law principles.
2.18
The nature of the assessment and the availability of review are relevant
to the proportionality of the measure. In relation to the breadth of the factors
that the secretary may consider as adversely affecting whether a person is a
'fit and proper person', the minister's response states:
Enabling the Secretary to take into account a broad range of
matters is important when considering whether a person is a fit and proper
person because such a person might be involved in the export of a wide range of
goods, with varying degrees of risk. The matters provided for in the Bill seek
to reflect the broad range of matters in the current framework that can be
taken into account by the Secretary to ensure that he or she may have regard to
any relevant matter. This ensures that the integrity of the regulatory
framework is not compromised by limiting conduct that can be considered in this
context. As the agricultural export sector is regularly changing and evolving,
this is reasonable and proportionate and ensures that the current level of
market access can be maintained and possibly even increased in future.
2.19
In relation to the breadth of the definition of 'associates', the
minister's response explains that:
The associates' test is designed to ensure that an applicant
for a regulatory control under the Bill (e.g. a registered establishment) is a
suitable person to be responsible for managing relevant risks, in light of the
potential consequences of non-compliance. It is appropriate for associates to
be included in the consideration so as to ensure that the conduct of all types
of entities may be taken into account where the Secretary considers it
appropriate to do so.
2.20
The minister's response explains why it is appropriate to define who
constitutes a 'fit and proper person':
It is appropriate for the rules to be able to provide who can
be a fit and proper person. The Bill and the rules will allow the Australian
Government to respond in an appropriate and timely manner to any changes to
importing country requirements or to implement any necessary policy or
regulatory reforms in the future. The rules will be able to prohibit the export
of certain kinds of goods (called prescribed goods) unless they meet the
conditions set out in the Rules. The requirements for prescribed goods must be
appropriately tailored to ensure that only the necessary level of regulatory
burden is imposed on exporters and this includes the imposition of the fit and
proper person test which should only be imposed where it is required (e.g. as a
result of an importing country requirement). The rules are a legislative
instrument and therefore will be subject to Parliamentary scrutiny through the
disallowance process, and sunsetting in accordance with the Legislation Act
2003.
2.21
On balance, in light of the information provided, the measure may be
capable of constituting a proportionate limitation on human rights. It is
noted, however, that much may depend on the content of the rules and how the
measure is applied in practice. In this respect, from the point of view of
effective parliamentary scrutiny, it is problematic that the detail of the
delegated legislation is not publicly available when parliament is considering
the bill. Specifically, the rules will need to ensure that the 'fit and proper
person test' is applied in a manner compatible with human rights. Should the
bill be passed, the committee will assess the rules for compatibility with
human rights.
Committee response
2.22
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.23
Subject to the content of the rules, the committee considers that
the measure may be compatible with human rights. If the bill is passed, the
committee will consider the human rights implications of the rules once they
are received. The committee also notes that it is preferable for details of
proposed rules to be available for consideration in conjunction with the
related bill prior to its passage.
Higher Education Support Legislation Amendment (Student Loan
Sustainability) Bill 2018
Purpose |
Amends the Higher
Education Support Act 2003 including to: provide a new minimum repayment
income of $44,999 for the compulsory repayment of Higher Education Loan
Program (HELP) debts; replace the current repayment thresholds and introduce
additional repayment thresholds; index HELP repayment thresholds to the
consumer price index instead of average weekly earnings; and introduce, from
1 January 2019, a combined lifetime limit on the amount a student can borrow
under HELP of $150,000 for students studying medicine, dentistry and veterinary
science courses, and $104,440 for other students |
Portfolio |
Education and Training |
Introduced |
House of representatives,
14 February 2018 |
Rights |
Education; equality and
non-discrimination (see Appendix 2) |
Previous report |
3 of 2018 |
Status |
Concluded examination |
Background
2.24
The committee first reported on the Higher Education Support Legislation
Amendment (Student Loan Sustainability) Bill 2018 (the bill) in its Report 3
of 2018, and requested a response from the Minister for Education and
Training by 11 April 2018.[12]
2.25
The minister's response to the committee's inquiries was received on
16 April 2018. The response is discussed below and is reproduced in full at Appendix 3.
2.26
The committee has commented on proposed reforms to the funding of higher
education and reforms to the Higher Education Loan Program (HELP) on a number
of occasions.[13]
2.27
Most recently, the committee considered the Higher Education Support
Legislation Amendment (A More Sustainable, Responsive and Transparent Higher
Education System) Bill 2017 (2017 bill) in its Report 5 of 2017 and Report
7 of 2017.[14] The current 'Student Loan Sustainability' bill[15] (2018 bill) reintroduces a number of the measures contained in the 2017 bill.
Lowering repayment threshold for HELP debts and changes to indexation
2.28
Schedule 1 of the 2018 bill lowers the current minimum repayment income
for HELP loans to $44,999 per annum (currently, the repayment threshold is
$55,874).[16] It also introduces additional repayment thresholds and rates (1 percent at
$45,000 and increasing to 10 percent on salaries over $131,989 per annum).[17] The equivalent measure contained in the 2017 bill sought to lower the repayment
threshold to $41,999 per annum.[18]
2.29
From 1 July 2019 repayment thresholds including the minimum repayment
amount will be indexed using the Consumer Price Index (CPI) rather than Average
Weekly Earnings (AWE).[19] This is a reintroduced measure which is contained in the 2017 bill.
Compatibility of the measures with
the right to education
2.30
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.
2.31
Australia has obligations to progressively introduce free higher
education by every appropriate means and also has a corresponding duty to
refrain from taking retrogressive measures, or backwards steps, in relation to
the realisation of the right to education.[20] Retrogressive measures, a type of limitation, 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.[21]
2.32
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 initial human rights analysis stated that 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 appears to be contrary to the requirement under article 13 of the ICESCR
to ensure that higher education is equally accessible and progressively free.
Similarly, a change to indexation also engages and may limit the right to
education to the extent it increases the amount to be paid, relative to
earnings. In this respect, the United Nations (UN) Committee on Economic,
Social and Cultural Rights has raised serious concerns about access to
education in the context of the operation of student loan schemes
internationally.[22]
2.33
The committee previously corresponded with the minister about the
compatibility of the measures in the 2017 bill which sought to lower the
repayment threshold with the right to education. The repayment threshold in the
2018 bill is slightly higher than the amount in the 2017 bill, but the measures
raise substantively identical issues in relation to the right to education.
While the statement of compatibility to the 2018 bill identifies that these
measures engage the right to education, it does not include the level of detail
previously provided by the minister in his response to the 2017 bill.
2.34
In the context of this measure, the committee has previously concluded
that lowering the repayment threshold may be compatible with the right to
education. This was based on the information that was previously provided by
the minister in response to the committee's request for information. However,
in the absence of any detail from the minister in the statement of
compatibility to the 2018 bill, further information was required in order for
the committee to conclude its assessment of the reintroduced measure.
2.35
Nevertheless, the statement of compatibility argues that the measures
are compatible with the right to education as they do not increase the overall
cost to students or prevent access to higher education:
Access to higher education will be maintained through the
continued availability of HELP loans. As individuals will commence repayment
sooner, it may create the belief that costs are increasing for students,
thereby reducing access to higher education. By lowering the repayment
threshold, and altering the indexation of the threshold to grow in line with
CPI, this measure makes the overall scheme more affordable for Government in
the long-term, and does not result in an overall increase in costs for
students.[23]
2.36
However, the initial analysis stated that this does not fully address
whether the changes to indexation and the repayment threshold may act as a
disincentive for access to education or, more generally, how such measures
impact upon Australia's obligations of progressive realisation.
2.37
Additionally, there may be a category of low income earners who, due to
earning below the repayment threshold, may never have had to repay the entire
amount of their HELP-debt. If such low income earners now have to repay
HELP-loans due to a change in thresholds, there are questions as to whether
this could be an indirect reduction in freely accessible higher education for
these classes of individuals.
2.38
Should the measure constitute a limitation on the right to education, it
was unclear from the information provided whether this limitation is
permissible as a matter of international human rights law. The statement of
compatibility identifies the objective of the measure as 'ensuring the long
term viability of the HELP scheme'.[24] However, it does not provide an evidence-based explanation of how this
constitutes a legitimate objective for the purposes of international human
rights law. In this respect, a legitimate objective must address a pressing or
substantial concern and not simply seek an outcome regarded as desirable or
convenient. Additionally, as set out above, a limitation must be rationally
connected to, and a proportionate way to achieve, its stated objective in order
to be permissible under international human rights law.
2.39
Accordingly, the committee requested the further advice of the minister
as to:
- whether the proposed change in indexing from AWE to CPI means
that students would pay more or less for their university degrees (including
for their degree overall and as a proportion of their wages);
- whether requiring some classes of low income earners to repay
HELP-debts could constitute an indirect reduction in the amount of government
funding of higher education;
- whether the proposed changes to the repayment threshold and
indexation could have an adverse impact on access to education;
- 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; and
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective.
Minister's response
2.40
The minister's response argues that the proposed lowering of the
repayment threshold to $45,000 and changes to indexation engage but do not
limit the right to education.
2.41
In relation to whether the proposed changes to the repayment threshold
and indexation could have an adverse impact on access to education, the
minister's response states that there should be no effect on access to higher
education and eligible students will remain able to defer their student
contribution amounts or tuition fees via a HELP loan. The minister's response
additionally provides the following information as to why the measures will not
have an adverse impact:
The new HELP repayment threshold arrangements do not restrict
accessibility and affordability of higher education. The Higher Education Loan
Program (HELP) will continue to ensure that eligible Australian students are
able to fully defer the cost of their higher education through
income-contingent loans. The HELP scheme has, and will continue to be, critical
for ensuring high-quality university education is accessible to all Australians,
enabling admission on the basis of merit as opposed to wealth.
International evidence suggests that the availability of a
strong student loan scheme reduces or eliminates any effects of price increases
on accessibility. A 2014 report prepared for the European Commission (the Usher
report) explored the impacts of changes to cost-sharing arrangements on higher
education students and institutions across nine countries. The Usher report
found that there was no trend of declining enrolments after a fee increase, and
that in cases where students were able to access financial support, in the form
of loans or scholarships, the impact of a fee increase on university
applications was negligible.
In addition, Professor Bruce Chapman from the Australian National
University has argued that "the evidence is now overwhelming that changes
to the level of the charge, or other aspects of HECS-HELP, such as the first
threshold of repayment, have no discernible effects on student behaviour or
choices."
While the minimum HELP repayment threshold will be reduced,
the one per cent repayment rate at this minimum threshold will ensure the
scheme remains affordable for those who incur a HELP debt, and that there are
no adverse impacts on access to higher education.
2.42
Accordingly, this information indicates that the measure is consistent
with maintaining access to higher education. In relation to whether the
proposed change in indexing from AWE to CPI means that students would pay more
or less for their university degrees, the minister's response explains that the
proposed change:
...does not affect university fees or HELP debts incurred by
students - it only affects the repayment thresholds themselves.
...this change may lead to students paying slightly less in
nominal terms for their degree over their lifetime compared with what they
would pay under the current arrangements. This is due to the reduced indexation
of debt. If the HELP repayment thresholds are indexed by CPI, some debtors are
likely to make higher per year repayments. In such cases debts are being paid
down more quickly, there is less debt to index at a given time and therefore
total indexation is lower. The lower amount of indexation on debts would lead
to the individual repaying a slightly lower amount of total debt over their
lifetime, all else being equal.
2.43
This information indicates that this aspect of the measure does not
amount to a backward step in the progressive realisation of the right to
education. As to whether requiring some classes of low income earners to repay
HELP-debts could constitute an indirect reduction in the amount of government
funding of higher education, the response acknowledges that:
...the new minimum threshold of $45,000 in 2018-19 will result
in more debtors falling within a repayment scope, which means some people, who
would not repay any of their debt under current arrangements, may pay part or
all of their debt under the proposed arrangements.
2.44
However, in relation to whether this constitutes a backward step in the progressive
introduction of free education, the minister's response explains that there are
some relevant safeguards in place:
...relevant to the rights-based integrity of the measure, under
the Higher Education Support Act 2003, where a person's financial and
family circumstances result in them either being exempt or receiving a
reduction in their Medicare Levy, they are not required to make compulsory HELP
repayments for that income year. For example, in 2016-17 a single person with
one dependent child with an income below $49,871 was exempt from HELP
repayments in that income year. The income level rises with each additional
dependent.
2.45
The response further argues that overall government university funding
has increased 15 per cent between 2010 and 2015. Accordingly, while the measure
may adversely affect some groups of low income earners, the measure may not
constitute a backward step in progressively realising free higher education
given the information provided that the funding of higher education has
increased and about the existence of some safeguards.
2.46
If the measure was to constitute a backward step or limitation on
progressively free higher education, the minister's response also provides some
information as to whether this would be permissible in the circumstances. The
minister's response explains how the objective of 'ensuring the long term
viability of the HELP scheme' addresses a substantial concern and how the
measure is effective to achieve that objective:
The existing HELP thresholds have been in place for a number
of years and do not take into account the changes in access to HELP that have
occurred in recent years. HELP lending has grown rapidly with the expansion of
the demand driven system, and the amount of HECS-HELP loans accessed has
increased from over $2.2 billion in 2009 to over $4.3 billion in 2016. In
addition, the expansion of HELP to the Vocational Education and Training (VET)
sector in 2008 led to increases in VET FEE-HELP loans from over $25 million in
2009 to over $1.4 billion in 2016.
HELP expenses, which consist mainly of debt not expected to
be repaid and the deferral subsidy resulting from the concessional interest
rate applied to the loans compared with costs of borrowing by the Commonwealth
for on-lending, are estimated at $1.8 billion in 2017-18. The fair value of the
HELP debts was estimated to be $35.9 billion as at 30 June 2017.
In this context, there is a strong need for the Government to
improve the sustainability of the HELP scheme. The changes to HELP repayment
thresholds and indexation contained in the Bill will result in approximately
124,000 additional HELP debtors making repayments in 2018-19. The changes also
involve higher repayment rates for those on higher incomes. As a result, the
measure is expected to deliver savings of $345.7 million in fiscal balance
terms and $245.2 million in underlying cash balance terms over the forward
estimates (2017-18 to 2020-21). Therefore, the new HELP repayment threshold
arrangements contribute strongly to the sustainability of the scheme, ensuring
that future generations of students also benefit from access to both HELP and
higher education more broadly.
2.47
While not specifically articulated in this way, the minister's response
appears to indicate that unless spending is curbed then there is a risk that
the HELP loan system may collapse or will have to be restricted in other ways.
That is, there is a concern that, given a limited pool of government resources,
mounting costs could affect the availability of the HELP loans and therefore
access to education for future students. To the extent that this is the case,
this would appear to constitute a legitimate objective for the purposes of
international human rights law. The measure appears to be rationally connected
to that objective. As to whether the limitation is a reasonable and
proportionate measure to achieve the stated objective, the response states:
The new minimum repayment threshold is around 25 per cent
above the full time minimum wage (currently around $36,100 for a full-time
worker from 1 July 2017, according to Fair Work Australia). At a repayment rate
of just one per cent, a person with a HELP debt will pay back less than $9 per
week. Therefore, the Government considers that any limitations on the right to
education constitute a reasonable, proportionate and properly tailored measure
to achieve long-term improvements in sustainability of the HELP scheme.
2.48
In view of this information and the extent of any limitation on the
right to education (set out above), the measure may be a proportionate limitation
on this right. In this respect, whether other alternatives to the measure have
been fully considered is also relevant. However, as set out above, the measure
in context may not constitute a backward step in progressively realising free
higher education and questions of proportionality do not therefore arise.
Committee response
2.49
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.50
The committee considers that the measure may be compatible with
the right to education. However, it is noted that Australia has an ongoing
obligation under international law to progressively introduce free higher
education.
Compatibility of the measure with
the right to equality and non-discrimination (indirect discrimination)
2.51
The right to equality and non-discrimination is protected by articles 2
and 26 of the International Covenant on Civil and Political Rights (ICCPR).
Article 2(2) of the ICESCR also prohibits discrimination specifically in
relation to the human rights contained in the ICESCR such as the right to
education. In addition to these general non-discrimination provisions, articles
1, 2, 3, 4 and 15 of the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) further describe the content of these
obligations, including the specific elements that state parties are required to
take into account to ensure the rights to equality for women.[25]
2.52
'Discrimination' encompasses a distinction based on a personal attribute
(for example, race, sex or on the basis of disability),[26] which has either the
purpose (called 'direct' discrimination), or the effect (called 'indirect'
discrimination), of adversely affecting human rights.[27] The UN Human Rights
Committee has explained indirect discrimination as 'a rule or measure that is
neutral on its face or without intent to discriminate', which exclusively or
disproportionately affects people with a particular protected attribute.[28]
2.53
The initial analysis stated that reducing the minimum repayment income
threshold for HELP debts to $44,999 may have a disproportionate impact on women
and other vulnerable groups.[29] In relation to women, this is because, on average, women are more likely to
earn less than men, and therefore more are likely to be affected by the
reduction in the repayment threshold to cover those earning between $44,999 and
$55,000.
2.54
The change in indexation may also have a disproportionate effect on
women and other vulnerable groups. As women, on average, 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,
they may take longer to pay off their HELP debt than their male counterparts.[30] Where a person
takes longer to repay a HELP debt, any changes in indexation under the HELP
scheme relative to their earnings may have a more significant effect on them.
This is because they may be subject to the indexation changes and repayment
obligations for a longer period of time.
2.55
Where a measure impacts on particular groups disproportionately, it
establishes prima facie that there may be indirect discrimination.[31] Differential treatment (including the differential effect of a measure that is
neutral on its face)[32] 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.
2.56
The statement of compatibility acknowledges that the measures engage the
right to equality and non-discrimination due to their disproportionate impacts
on women:
...the 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, some of these individuals, including women, may be making repayments
for the first time as a result of the introduction of a lower minimum repayment
threshold. Addressing this income inequality, however, is not the role of the
higher education loans system.[33]
2.57
This statement is identical to the information provided in the statement
of compatibility for the 2017 bill.[34] As with the 2017 bill, the statement of compatibility to the 2018 bill does not
provide a substantive assessment of whether the measure amounts to indirect
discrimination nor does it address the concerns expressed by the committee in
its consideration of the measures in the 2017 bill.
2.58
The initial analysis further noted that the argument in the statement of
compatibility that a negative impact on women results from income inequality is
not an adequate justification of the measure for the purposes of human rights
law in circumstances where the measure has the potential to exacerbate
inequality. Rather, as set out above, where there is evidence that a measure
may have a disproportionate negative effect on women it shows prima facie that the measure itself may be discriminatory. In these circumstances, the
measure may still be compatible with the right to equality and
non-discrimination where the measure serves a legitimate objective, is
effective to achieve that objective and is a proportionate means of achieving
that objective. However, the statement of compatibility does not address whether
this is the case with respect to these measures. Further, international human
rights law recognises that it is fundamentally the role of government to
address existing inequalities and ensure that these are not exacerbated through
particular measures. In this respect, the UN Committee on Economic, Social and
Cultural Rights, in its concluding observations on Australia in July 2017,
recommended that Australia 'intensify its efforts to address the remaining
obstacles to achieving substantive equality between men and women'.[35] As the minister's response to the 2017 bill did not fully address such issues,
the committee previously advised that it was not possible to conclude that the
measure was compatible with the right to equality and non-discrimination.[36]
2.59
Accordingly, the committee requested the further advice of the minister
as to:
- whether the measure pursues a legitimate objective for the
purposes of international human rights law and whether there is reasoning or
evidence that establishes that this objective addresses a pressing or
substantial concern;
- how the measure 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 stated objective.
Minister's response
2.60
The minister's response acknowledges the potential limitation that the
measure imposes on the right to equality and non-discrimination. However, the
response merely reiterates the minister's view that the disproportionate effect
on women and other vulnerable groups is caused by 'broader and complex social
and economic factors that influence participation in higher education, and
subsequent labour market experience' and it is not 'within the scope of a
student loan scheme to address or mitigate' such factors. As explained above at
[2.58] this position misunderstands the scope of Australia's obligations under
international human rights law which requires Australia to proactively address
such inequalities. Further, where a measure may have a disproportionate
negative effect on women or other vulnerable groups (including where it may
exacerbate existing inequalities), this disproportionate negative effect needs
to be justified as a matter of international human rights law.
2.61
In this respect, it is noted that much of the minister's response
focuses on the level of participation by women in higher education and
concludes that therefore the measure will necessarily have a disproportionate
impact on them. However, as outlined in the initial analysis, the particular
concern is that because women earn on average less than their male counterparts
(including other university graduates), lowering the repayment threshold and
the changes to indexation will have a disproportionate negative effect on them.
In other words, the measure may exacerbate the existing disadvantage
experienced by women (along with other vulnerable groups). This concern is not
substantively addressed solely by reference to participation rates in higher
education.
2.62
While the minister's response does not fully engage with the nature of
Australia's obligations in relation to the right to equality and
non-discrimination, it nevertheless provides some information as to whether the
measure is compatible with the right. As set out above, the measures appear to
pursue the legitimate objective of improving the sustainability of the HELP
scheme and be rationally connected to that objective.
2.63
However, serious questions remain about whether the measures are
proportionate with respect to their impact on women and other vulnerable
groups. In this respect, the minister's engagement with questions of
proportionality does not focus on the measure's disproportionate effect on
women in terms of exacerbating the existing disadvantage they experience, due
to the fact that they earn less on average than their male counterparts. The
response instead focuses on the participation rates of women in higher
education and argues that the measures represent 'a purely income-based change
and do not target particular groups such as women'. Yet, the concept of
indirect discrimination encompasses measures not intended to target particular
groups, but which nevertheless have a disproportionate negative effect on these
groups. The extent of impact on the particular group and whether the measure is
the least rights restrictive approach are of relevance to whether the impact is
proportionate. Yet, the minister's response does not fully address such issues.
As a result, given the potential of the measures to exacerbate existing
inequalities, it is not possible to conclude from the information provided in
the minister's response that the measures are compatible with the right to
equality and non-discrimination.
Committee response
2.64
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.65
Consistent with the committee's previous conclusions and the
preceding analysis, it is not possible to conclude that the measure is
compatible with the right to equality and non-discrimination (indirect
discrimination).
Restriction on how much students can borrow under HELP to cover tuition
fees
2.66
Schedule 3 of the 2018 bill introduces a new combined limit on how much
students can borrow under HELP to cover their tuition fees from 1 January 2019.
Currently, the limit applies only to debts incurred through FEE-HELP,[37] VET FEE-HELP[38] and VET Student Loans.[39] Under the proposal, debts incurred by Commonwealth supported students under
HECS-HELP[40] will also be included in the lending limit. This means that all eligible
domestic students will be subject to a single combined lending limit for their
tuition fees. The lifetime limit will be $150,000 for students studying
medicine, dentistry and veterinary science courses and $104,440 for other
students. Loan limits will be indexed according to CPI.[41] The loan limit will not be retrospective with respect to HECS-HELP.[42]
Compatibility of the measure with
the right to education
2.67
As set out above, article 13 of the ICESCR protects the right to
education including ensuring that higher education is equally accessible, on
the basis of capacity and through the progressive introduction of free higher
education.
2.68
The initial analysis stated that a combined lifetime loan limit on all
HELP-lending may restrict access to tertiary or further education for
individuals who have reached the loan limit and who are unable to afford to pay
their tuition fees upfront. Accordingly, the measure appears to be a backward
step, or limitation, on the level of attainment of the right to higher
education.[43] As noted above, such limitations or retrogressive measures may be permissible under
international human rights law provided 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 UN 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.[44]
2.69
The statement of compatibility acknowledges that the measure engages the
right to education and argues that any limitation on the right is permissible.
It identifies the objective of the measure as 'ensuring access to tertiary
education for those who cannot afford to pay their tuition upfront'.[45] While ensuring access to tertiary education may be capable of constituting a
legitimate objective for the purposes of international human rights law, limited
information is provided in the statement of compatibility as to how this
constitutes a pressing or substantial concern in the specific circumstances of
the measure.
2.70
Further, it was unclear from the information provided how this measure
is rationally connected to (that is, effective to achieve) this objective. This
is because rather than ensuring access to higher education for those who cannot
afford to pay fees upfront, the measure would appear instead to restrict access
to higher education for those unable to pay if they have already reached the
HELP limit.
2.71
In relation to the proportionality of the limitation, the statement of
compatibility states that as the loan limit is:
...firstly, sufficient to support almost nine years of full
time study as a Commonwealth supported student and, secondly, can reasonably be
repaid within a borrower's lifetime, this measure is consistent with fair and
shared access to education.[46]
2.72
However, this may not fully take into account all potential impacts on
access to education for students, particularly in the context of lifelong
learning or retraining. Additionally, while the loan amount may be sufficient
to support nine years of full time study as a Commonwealth supported student,
this does not appear to fully acknowledge the context of current higher
education funding arrangements. Currently, in many graduate and postgraduate
programs there are few commonwealth supported student places.[47] If a commonwealth supported place is unavailable, this means that students will
usually have to pay higher fees in respect of such graduate and postgraduate
programs. While students may be able to borrow the cost of their tuition under
FEE-HELP, they will reach the lifetime loan limit sooner due to the higher
costs of tuition. However, the effect of the measure will be to count both the
FEE-HELP debt and any HECS-HELP debt (that students have already incurred, for
example, during their undergraduate degree) for the purposes of the lifetime
limit. This means that it is possible an Australian student who completes, for
example, an undergraduate bachelor degree as a commonwealth supported student
followed by a full-fee paying graduate degree may reach the lifetime loan
limit. Accordingly, this raised a particular concern that the measure could
have a significant impact on access to higher education for some students.[48] Further, no information was provided in the statement of compatibility about
the consideration of alternatives, in the context of Australia's use of its
maximum available resources. Based on the information provided, it was not
clear that the measure was proportionate.
2.73
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;
- 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 (including in the context of lifelong learning
or a future need for retraining);
- whether alternatives to the measure have been fully considered;
and
- how the measure complies with Australia's obligation to use the
maximum of its available resources to ensure higher education is accessible to
all, on the basis of capacity, by every appropriate means, and by the
progressive introduction of free education.
Minister's response
2.74
The minister's response states that the objective of the measure is 'to
improve the sustainability of the HELP scheme while retaining sufficient
flexibility for students in furtherance of the core value of promoting the
enjoyment of the right to education'. It provides some general information as
to the costs of the loans.
2.75
While not articulated in this way, the minister's response appears to
indicate that, given a limited pool of government resources, mounting costs
could affect the availability of the HELP loans and therefore access to
education for future students. To the extent that this is the case, as noted
above, this would appear to constitute a legitimate objective for the purposes
of international human rights law. It would also appear to be rationally
connected to that objective.
2.76
The minister's response provides some information which goes to the
proportionality of the limitation. The minister's response states that the loan
limit will impact on a small number of students (as at 30 June 2017, only
around 0.5 per cent of all HELP debtors had a debt greater than $100,000).
Additionally, the government has moved amendments to the bill to provide that
the HELP-loan limit will not operate as a lifetime limit where the student has
made voluntary or compulsory repayments. Under the amendments a student will
have a FEE-HELP balance, equal to the current FEE-HELP limit, and will become
ineligible for further FEE-HELP where their balance is zero. This balance may
be increased by the student making repayments of their HELP debts.[49] In relation to this amendment, the minister's response states that:
...mak[ing] the lifetime limit a renewable loan limit enables
interested students to pursue lifelong learning. It provides scope for
individuals whose HELP debt repayments for an income year have replenished
their HELP loan balance to re-borrow those funds.
This will enable them to pursue further study in order to
retrain, change careers, or further specialise in their current profession -
giving them lifelong access to education.
2.77
Accordingly, the amendment addresses a number of the concerns raised in
the initial analysis about the proportionality of the measure in the context of
lifelong learning. The renewable loan limit clearly provides much more scope
for lifelong learning than was previously the case.
2.78
However, while noting the minister's advice that there are relatively
few HECS-debtors who have reached the limit, there is still a concern about
access to educational opportunities for some students under the revised
measure. For example, an Australian student who completes, for example, an
undergraduate bachelor degree as a commonwealth supported student and
immediately commences a full-fee paying graduate degree without working full
time may reach the loan limit.[50] If such a student is unable to afford to pay the fees upfront, they may need to
defer their course of study until they have paid down their HECS-loan (which
could take many years). There is accordingly a risk that the measure may
restrict access to education for some individuals in circumstances where it is
not proportionate to do so in the context of Australia's obligations under this
right. In this respect, it is noted that the minister's response has not
explained whether alternatives to the measure have been fully considered.
2.79
In relation to how the measure complies with Australia's obligation to
use the maximum of its available resources to ensure higher education is
accessible to all, and by the progressive introduction of free education, the
minister's response states:
The Government believes that [the measure] is fair and
justifiable by reference to the totality of rights provided for in the ICESCR
and in the context of the full use of the government's maximum available
resources, that those who benefit from access to higher education contribute
towards the cost of the scheme, but also recognises that those who repay their
debts should be able to access the loan scheme in the future. Providing for a
renewable loan limit substantially addresses the concern of numerous
stakeholders that the loan limit changes could result in inequities in access
to higher education.
2.80
This provides some useful context in relation to the minister's view of
the measure in the context of Australia's maximum available resources including
the role of student contributions. It is clear that this measure does not
further Australia's obligation to progressively introduce free higher
education.
Committee response
2.81
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.82
The amendment made to the measure addresses some concerns in
relation to access to education. In the context of this amendment, the preceding
analysis indicates that the measure may be compatible with the right to
education in a range of circumstances. However, there is a risk in its
operation that it could potentially restrict access to higher education for
some individuals in circumstances where it may not be proportionate to do so. It
is further noted that Australia has an ongoing obligation under international
law to progressively introduce free higher education.
Legislation (Deferral of Sunsetting—Australian Crime Commission
Regulations) Certificate 2017 [F2017L01709]
Purpose |
Defers the date of
automatic repeal ('sunsetting') of the Australian Crime Commission
Regulations 2002 by 12 months, from 1 April 2018 to 1 April 2019 |
Portfolio |
Attorney-General |
Authorising legislation |
Legislation Act 2003 |
Last day to disallow |
Exempt from disallowance[51] |
Rights |
Privacy; liberty; effective
remedy; fair trial and fair hearing; prohibition
against torture, cruel, inhuman or degrading treatment or punishment (see Appendix
2) |
Previous report |
3 of 2018 |
Status |
Concluded examination |
Background
2.83
The committee first reported on this instrument in its Report 3 of
2018, and requested a response from the Attorney-General by 11 April 2018.[52]
2.84
A response from the Minister for Law Enforcement and Cyber Security
was received on 27 April 2018. The response is discussed below and is
reproduced in full at Appendix 3.
2.85
The Australian Crime Commission Regulations 2002 (ACC regulations) were
scheduled to sunset, that is, be automatically repealed, on 1 April 2018. This
certificate defers the sunsetting date for 12 months, to 1 April 2019.[53]
2.86
While the certificate of deferral does not amend the current ACC
regulations, the certificate has the effect of continuing their operation for a
further 12 months. Accordingly, the committee is obliged to provide an
assessment as to the compatibility of the certificate with human rights. This
includes an assessment of the potential impact of the extension of the operation
of the ACC regulations.
2.87
While the Attorney-General is not required to provide a statement of
compatibility for this instrument,[54] where a legislative instrument engages human rights, including by continuing
the effect of measures that engage rights, it is good practice for an
assessment to be provided as to human rights compatibility.
Conferral of powers under state laws
2.88
Section 55A of the Australian Crime Commission Act 2002 (ACC Act)
provides Commonwealth legislative authority for the conferral by the states[55] of certain duties, functions or powers on the Australian Criminal Intelligence
Commission (ACIC),[56] members of its board or staff, or a judge of the Federal Court or Federal
Circuit Court. These may include duties, functions or powers of a kind specified
in relevant regulations.
2.89
Section 8A and schedules 3, 4 and 5 of the ACC regulations prescribe
provisions of state and territory laws for the purpose of section 55A. These
include:
-
under subsection 8A(1), duties, functions or powers provided in
19 provisions of state and territory Acts and regulations, specified in
schedule 4, which may be conferred on the Commission; and
- under subsection 8A(2), duties, functions or powers provided in
305 provisions of state and territory Acts and regulations, specified in
schedule 3, which may be conferred on the Commission's CEO, a member of its
staff, the Chair or a member of its Board.
2.90
In each instance, the relevant duties, powers or functions may be
conferred on the ACIC, members of its board or staff or federal judges for the
purposes of, or in relation to, the investigation of a matter or the
undertaking of an intelligence operation relating to a relevant criminal
activity,[57] in so far as the relevant crime is, or includes, an offence or offences against
a state law, whether or not that offence or those offences have a federal
aspect.
Compatibility of the measure with
multiple human rights
2.91
The right to privacy prohibits arbitrary or unlawful interferences with
an individual's privacy, family, correspondence or home. This includes
informational privacy, the right to personal authority and physical and
psychological integrity, and prohibitions on unlawful and arbitrary state
surveillance or interference with a person's home or workplace.
2.92
The right to liberty of the person is a procedural guarantee not to be
arbitrarily and unlawfully deprived of liberty.
2.93
The right to a fair trial and a fair hearing encompasses notions of the
fair administration of justice and prohibits investigatory techniques that
incite individuals to commit a criminal offence.[58]
2.94
Australia is also required to ensure that those whose human rights are
violated have access to an effective remedy, notwithstanding that the violation
has been committed by persons acting in an official capacity.
2.95
The initial human rights analysis stated that it appears that some of
the provisions set out in schedules 3 and 4 to the ACC regulations, allowing
the conferral of powers under state laws on the Commission, its board or staff,
engage the right to privacy, the right to liberty, the right to a fair trial
and a fair hearing, or the right to an effective remedy, and may engage other
human rights. These include provisions relating to criminal intelligence
operations, use of assumed identities by law enforcement personnel, use of
surveillance devices, witness protection, and spent convictions.
2.96
For example, schedule 3 allows the conferral of powers on the CEO or
staff of the ACIC under a number of provisions of the New South Wales Law
Enforcement (Controlled Operations) Act 1997 (NSW Act). This
includes the power under section 13 of the NSW Act to engage in
'controlled activities' when part of an authorised 'controlled operation',[59] which may be conferred on any member of staff of the ACIC. Controlled
activities are activities which, but for section 16 of the NSW Act, would be
unlawful. Section 16 provides that any activity engaged in by a participant in
an authorised operation, and in accordance with the authority for the
operation, is not unlawful and does not constitute an offence or corrupt
conduct despite any other Act or law.
2.97
As such, where that power is conferred, it would allow any member of the
ACIC's staff, given the authority, to commit an otherwise unlawful act.
Schedule 3 also permits the conferral on the CEO of the ACIC of the power,
under subsection 14(1) of the NSW Act, to grant (or refuse) retrospective
authority for controlled activities.
2.98
The initial analysis noted that while there appear to be some safeguards
in relation to the controlled operations,[60] by allowing a broad range of activities that would otherwise be unlawful, these
provisions could have a significant impact on various rights, including (but
not restricted to) the right to liberty, the right to a fair trial and a fair
hearing, the right to privacy and the right not to be subject to torture,
cruel, inhuman or degrading treatment or punishment. The provisions may also
prevent a person from seeking an effective remedy where his or her rights have
been violated, insofar as a participant in a controlled operation is granted
protection from criminal liability.
2.99
Another example is the prescription of powers under South Australia's Listening
and Surveillance Devices Act 1972 (SA Act).[61] Schedule 3 of the ACC regulations enables the conferral of powers on a staff or
board member of the ACIC under section 7 of the SA Act to use listening devices
to overhear, record, monitor or listen to private conversations without the
consent of the parties, and in certain circumstances to disclose the
information derived from their use. Powers are also able to be conferred under
section 9 of the SA Act including, in subsection 9(2), powers to break into, enter
and search any premises; stop, detain and search a vehicle; and detain and
search any person; where an officer suspects on reasonable grounds that an
unauthorised listening device is being held. Use of these powers would engage
and limit the right to privacy of individuals subject to searches or
surveillance, including respect for the privacy of a person's home, workplace
and correspondence. The provision for the detention of persons also engages and
limits the right to liberty.
2.100
It was noted that some of the powers prescribed in schedule 3 of the ACC
regulations appear to be accompanied by certain duties which may act as
safeguards on the use and scope of the power. However, there is no obligation
in the ACC regulations requiring that where powers are conferred, the
corresponding duties must be conferred along with them. It is unclear whether
very broad powers could be conferred on the ACIC or its staff, without the
safeguards contained in the original state or territory legislation.
2.101
In schedule 4, several powers are prescribed relating to the receipt or
disclosure of information, which may include personal information. These
include powers to receive information under subsection 11(1) of the First Home
Owner Grants Regulation 2000 (WA), subsection 37(d) of the Gambling and
Racing Control Act 1999 (ACT), and subsection 97(d) of the Taxation
Administration Act 1999 (ACT); and the power to disclose information about
spent convictions under subsection 17(3) of the Spent Convictions Act 2000 (ACT).
Once again, these powers engage and limit the right to informational privacy.
2.102
Limitations on human rights may be permissible where the measure pursues
a legitimate objective, is effective to achieve (that is, rationally connected
to) that objective, and is a proportionate means of achieving that objective.
2.103
However, no information is provided in the explanatory statement to the
certificate about the human rights engaged by (the continued operation of)
subsections 8A(1) and (2) and schedules 3 and 4 of the ACC regulations. As
stated above, while a statement of compatibility is not required for this
instrument, where a legislative instrument engages human rights, including by
continuing the effect of measures that appear to engage rights, it is good
practice for an assessment to be provided as to their human rights
compatibility. In the absence of further information, it is not possible to
conclude that the instrument is compatible with human rights.
2.104
The committee therefore sought the advice of the Attorney-General as to:
- the human rights engaged by subsections 8A(1) and (2) and
schedules 3 and 4 of the ACC regulations;
- where these measures engage and limit human rights:
- whether the measure is aimed at achieving a legitimate objective
for the purposes of human rights law;
- how the measures are effective to achieve (that is, rationally
connected to) a legitimate objective; and
- whether the limitations are reasonable and proportionate to
achieve that objective; and
- whether it would be feasible to amend the ACC regulations, when remade,
to require that any state powers conferred on the ACIC or its personnel which
limit human rights will only be exercisable where accompanied by the conferral
of the corresponding duties and safeguards in the relevant state law.
Minister's response
2.105
In relation to the committee's inquiries, the minister's response
states:
I note the Committee's comments on the Legislation (Deferral
of Sunsetting — Australian Crime Commission Regulations) Certificate 2017.
In re-making the Australian Crime Commission Regulations
prior to the sunsetting date of 1 April 2019, I will develop a statement of
human rights compatibility, which canvasses whether the identified measures
engage and limit human rights, and whether these measures represent a
reasonable and proportionate means of achieving a legitimate objective for the
purposes of human rights law. As part of the re-making process, I will consider
any necessary amendments to ensure the ACC Regulations remain fit-for-purpose
and contain appropriate safeguards to protect human rights.
2.106
The committee welcomes the minister's commitment to considering the
human rights issues raised by the ACC regulations when re-making the
regulations, and will consider the human rights implications of the re-made
regulations when they are received.
Committee response
2.107
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.108
The committee welcomes the minister's commitment to ensure that
the re-made ACC regulations will contain appropriate safeguards to protect
human rights, and recommends the minister consider the preceding analysis when
preparing the statement of compatibility for the new ACC regulations.
2.109
The committee will consider the human rights implications of the
re-made ACC regulations when they are received.
Collection and use of 'national policing information'
2.110
Subsection 4(1) of the ACC Act defines 'national policing information'
as information that is collected by the Australian Federal Police, a state
police force, or a body prescribed by the regulations, and is of a kind
prescribed by the regulations.
2.111
Section 2A of the ACC regulations prescribes eight bodies (listed in
schedule 1A) that collect 'national policing information', and prescribes the
kind of national policing information collected as information held under, or
relating to the administration of, 24 specified databases or electronic
systems.
2.112
Section 9A of the ACC regulations prescribes six organisations to which
national policing information may be disclosed by the CEO of the ACIC, without
requiring the approval of the board, in addition to those specified in the ACC
Act.[62]
Compatibility of the measure with
the right to privacy
2.113
As set out above, the right to privacy includes respect for
informational privacy, including the right to respect for private and
confidential information, particularly the storing, use and sharing of such
information; and the right to control the dissemination of information about
one's private life.
2.114
As national policing information is likely to include private,
confidential and personal information, its collection, use and disclosure by
the ACIC engages and limits the right to privacy.
2.115
The committee previously examined the human rights implications of this
measure in relation to the right to privacy in its Report 7 of 2016 and Report
8 of 2016.[63] The committee sought advice as to whether the limitation was a reasonable and
proportionate measure for the achievement of its stated objective, and in
particular, whether there were sufficient safeguards in place to protect the
right to privacy, noting in particular that the ACIC is not subject to the Privacy
Act 1988 (Privacy Act).
2.116
In response, the then Minister for Justice agreed that the collection
and disclosure of national policing information engages and limits the right to
privacy, but stated that the limitation was reasonable and proportionate to
achieving the objective of enabling the ACIC to fulfil its functions. The
minister advised that the ACC Act provided sufficient safeguards to protect the
right to privacy, and that the ACIC also had technical and administrative
mechanisms in place to ensure that national policing information is collected,
used and stored securely.
2.117
The minister noted that while the ACIC is not subject to the Privacy
Act, the ACIC is experienced in the appropriate handling of sensitive
information, and has safeguards and accessibility mechanisms specifically designed
for the sensitive nature of its operations. The minister advised that the ACIC
was in the process of preparing an information handling protocol addressing the
way it would treat personal information.
2.118
On this basis, the previous human rights analysis in the committee's
report stated that the legislative and administrative safeguards outlined in
the minister's response were likely to improve the proportionality of the
limitation on the right to privacy resulting from the collection, use and
disclosure of national policing information, and may ensure that the measure
would only impose proportionate limitations on this right. Nonetheless, the
committee considered it difficult to reach a conclusion that the measure was
compatible with human rights without the detail of the information handling
protocol being available. The committee requested that a copy of the
information handling protocol be provided to the committee once it was
finalised.
2.119
However, the committee has not to date received a copy of that document,
and it does not appear to be publicly available. No information is provided in
the explanatory statement to this certificate of deferral about the engagement
of the right to privacy by the (continued operation of) this measure.
2.120
The committee therefore requested an update from the Attorney-General
regarding the preparation of an information handling protocol by the ACIC, and
reiterated its request that a copy of this document be provided to the
committee.
Minister's response
2.121
The minister's response reiterates that he will prepare a statement of
compatibility for the re-made ACC regulations which identify how the measures
engage and limit the right to privacy. In relation to the delay in providing
the information handling protocol by the ACIC, the minister's response provides
the following information:
...the Attorney-General's Department, the Australian Crime
Commission (ACC) and CrimTrac provided a joint submission to the Senate Legal
and Constitutional Affairs Legislation Committee's Inquiry into the Australian
Crime Commission Amendment (National Policing Information) Bill 2015 and
the Australian Crime Commission (National Policing Information Charges) Bill
2015 in February 2016. On 10 March 2016, the [Legal and Constitutional
Affairs] Committee published its final report which recommended that the Bills
be passed and noted that:
the department and relevant
agencies intend to develop and publish an information handling protocol in
consultation with the OAIC to address in more detail the information handling
procedures and protections that would apply, and the assurance provided that
the principles in this document would be consistent with the Australian Privacy
Principles.
The Australian Criminal Intelligence Commission (ACIC) has
advised that the development of an information handling protocol is well
advanced and consultation will occur with the Office of the Australian
Information Commissioner shortly.
The finalisation of this protocol has been delayed due to the
need to address the implications of two major changes in administrative
arrangements affecting the ACIC. First, as a merged agency, the ACIC has faced
significant legal issues in seeking to amalgamate and consolidate the functions
and services formerly provided by the ACC and CrimTrac. These issues
particularly concern the handling of information. Secondly, the establishment
of the Home Affairs portfolio has raised additional legal and policy issues
that need to be taken into account in developing the protocol.
Committee response
2.122
The committee thanks the minister for his response.
2.123
The committee notes the information from the minister as to the
reason for the delay in finalising the information handling protocol.
2.124
The committee reiterates its request that, once finalised, a copy
of the information handling protocol by ACIC be provided to the committee in
order for the committee to conclude its analysis on the compatibility of the
ACC regulations with the right to privacy.
Disclosure of 'ACC information'
2.125
Sections 9 and 10 and schedules 6 and 7 of the ACC regulations prescribe
5 international organisations, 98 Australian bodies corporate and 38 classes of
body corporate to whom ACC information (defined by section 4 of the Act as
information that is in the ACIC's possession) may be disclosed, in accordance
with sections 59AA and 59AB of the Act.
Compatibility of the measure with
the right to privacy
2.126
As noted above, the right to privacy includes respect for informational
privacy. As ACC information is likely to include private, confidential and
personal information, its disclosure by the ACIC engages and limits the right
to privacy.
2.127
Limitations on the right to privacy may be permissible where the measure
pursues a legitimate objective, is effective to achieve (that is, rationally
connected to) that objective, and is a proportionate means of achieving that
objective.
2.128
However, no information is provided in the explanatory statement to the
certificate of deferral about the engagement of the right to privacy by the
(continued operation of) this measure. As stated above, while a statement of
compatibility is not required for this instrument, where a legislative
instrument engages human rights, including by continuing the effect of measures
that appear to engage rights, it is good practice for an assessment to be
provided as to their human rights compatibility. In the absence of further
information, it was not possible to conclude that the limitations on the right
to privacy are justifiable.
2.129
The committee therefore requested advice 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) a legitimate objective; and
-
whether the limitations are reasonable and proportionate to
achieve that objective.
Minister's response
2.130
In response to the committee's inquiries in this regard, the minister's
response states:
In re-making the Australian Crime Commission Regulations
prior to the sunsetting date of 1 April 2019, I will develop a statement of
human rights compatibility, which canvasses how the identified measures engage
and limit the right to privacy, and whether these measures represent a
reasonable and proportionate means of achieving a legitimate objective for the
purposes of human rights law.
2.131
The committee welcomes the minister's commitment to considering the
privacy issues raised by this aspect of the ACC regulations when re-making the
regulations, and will consider the human rights implications of the re-made
regulations when they are received.
Committee response
2.132
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.133
The committee welcomes the minister's commitment to ensure that
the re-made ACC regulations will contain appropriate safeguards to protect
human rights, and recommends the minister consider the preceding analysis when
preparing the statement of compatibility for the new ACC regulations.
2.134
The committee will consider the human rights implications of the
re-made ACC regulations when they are received.
My Health Records (National Application) Rules 2017 [F2017L01558]
Purpose |
Provides for the nationwide
implementation of the My Health Record system on an opt-out basis |
Portfolio |
Health |
Authorising legislation |
My Health Records Act
2012 |
Last day to disallow |
Tabled in the House of
Representatives on 4 December 2017; tabled in the Senate on 5 December 2017.
Last day to disallow: 26 March 2018 (Senate) |
Right |
Privacy (see Appendix 2) |
Previous report |
1 of 2018 |
Status |
Concluded examination |
Background
2.135
The committee first reported on this instrument in its Report 1 of
2018, and requested a response from the Minister for Health by 21 February
2018.[64]
2.136
The minister's response to the committee's inquiries was received on
26 February 2018. The response is discussed below and is reproduced in full at Appendix 3.
2.137
The My Health Record system, previously referred to as the personally
controlled electronic health record (PCEHR), is an electronic summary of an
individual's health records. The system currently operates on an opt-in basis,
meaning that persons register to obtain a My Health Record.
2.138
The Health Legislation Amendment (eHealth) Act 2015 (the Act)
enables trials to be undertaken in defined locations on an opt-out basis, with
an individual's health records automatically uploaded onto the My Health Record
system unless that individual takes steps to request that their information not
be uploaded. The Act also allows the opt-out process to be applied nationwide
following the trial. The committee previously assessed this legislation in its Twenty-ninth
Report of the 44th Parliament and Thirty-second report of the 44th
Parliament.[65]
Automatic inclusion of health information on the My Health Record system
2.139
The instrument provides for the implementation of the My Health Record
system nationwide on an opt-out basis. Under the scheme, a My Health Record
will automatically be created for all healthcare recipients,[66] unless they choose to opt-out.
2.140
Under the instrument, all people with an Individual Healthcare
Identifier (IHI), which includes all people enrolled in Medicare or with a
Department of Veterans' Affairs file number, will be provided the opportunity
to opt-out during a three-month 'opt-out period' before their record is
automatically created.[67] Healthcare recipients can also choose to cancel or suspend their registration
at any time after their My Health Record is created.[68]
Compatibility of the measure with
the right to privacy
2.141
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. By enabling the uploading of the
personal health records of all healthcare recipients onto the My Health Record
system, the instrument engages and limits the right to privacy. In this
respect, My Health Records may contain extensive health information such as
records of 'medical consultations, blood tests and x-ray reports and
prescriptions filled'.[69]
2.142
The statement of compatibility acknowledges that the instrument engages
and limits the right to privacy but concludes that any limitation is necessary,
reasonable and proportionate to achieving the objective of improving healthcare
for Australians. The statement of compatibility also states that the measure
promotes the right to health by 'improving the sharing of health information
between treating healthcare providers, leading to quicker and safer treatment
decisions and reducing repetition of information for patients and duplication
of tests'.[70] The initial human rights analysis stated that the broad objective of improving
healthcare for all Australians is likely to be considered a legitimate
objective for the purposes of international human rights law. It may also be
accepted that the sharing of health information between health practitioners
through the My Health Record system may help enable more efficient and informed
treatment of patients, therefore contributing to improved healthcare. The
measure would therefore appear to be rationally connected to the objective.
2.143
In order to be a proportionate limitation on the right to privacy, a
limitation should only be as extensive as is strictly necessary to achieve its
objective. In this respect, there were concerns as to whether the measure is
the least rights restrictive way to achieve the stated objective for the
purposes of international human rights law. In particular, the blanket
application of the system nationwide on an opt-out basis may be overly broad.
It was noted that opt-in arrangements, where an individual expressly consents
to having their health information uploaded to the online register, appear to
constitute a less rights restrictive alternative. The statement of
compatibility explains that the current arrangements are not effective to
encourage broader participation, 'creating a barrier to achieving the full
benefits of the system for individuals'.[71]
2.144
While increasing the number of people using the My Health Record system
may potentially assist to achieve the objective of improving health outcomes,
it was not clear whether a less rights restrictive approach to increasing the
number of people using the system may be reasonably available. This may include,
for example, measures promoting public awareness of and participation in the
system in its current opt-in form or encouraging individuals with complex or
serious health needs to opt-in. Further, the initial analysis stated that
information as to why, and the extent to which, the current opt-in system has
not succeeded and is not a reasonably available alternative on an ongoing basis
would assist in assessing whether the limitation on the right to privacy is
proportionate. It is also possible that some people may not have opted-in to
the My Heath Record system on the basis of reasonable concerns about their
privacy. Further, it was unclear that automatically uploading key aspects of
the medical records of all health care recipients is necessary to improve
health outcomes for each individual. For example, it was unclear whether individuals
who do not have ongoing or complex health needs will benefit from the proposed
system.
2.145
Another relevant consideration in determining the proportionality of the
measure is whether there are adequate safeguards in place to ensure that the
limitation on the right to privacy is no more extensive than is strictly
necessary. The statement of compatibility sets out a range of measures aimed at
safeguarding informational privacy, including that individuals can: restrict
access to certain information, including Medicare information; effectively
remove certain documents from the system; request their healthcare provider not
upload certain information; monitor login activity in relation to their My
Health Record; and cancel their registration at any time.[72] These points appear to provide individuals some measure of control over their
electronic record. However, based on the information provided, it was unclear
as to the process for individuals to opt-out or control what is accessible
through the My Health Record.
2.146
The initial analysis stated that other aspects of the system may not be
sufficiently circumscribed, including in relation to the retention of data. The
explanatory memorandum for the Health Legislation Amendment (eHealth) Bill 2015
explains that, when an individual cancels their existing My Health Record,
information compiled on the individual up to that point will be retained, but
cannot be accessed by any entity.[73] This apparently open-ended practice of retention raises further questions as to
whether the limitation on the right to privacy is the least rights restrictive
alternative to meet its objective.
2.147
The statement of compatibility also explains that healthcare recipients
will have a 'reasonable period of time' to opt-out of the system, which is a
three month window beginning from a future date to be specified by the
minister.[74] The explanatory statement explains that:
[i]n order to opt-out, a person must give notice to the
System Operator in a particular manner. In practice, a person will be able to
give this notice in a number of ways and at a time or period specified by the
Minister, depending on their circumstances.
2.148
However, no specific information is set out in the explanatory materials
as to how a person opts-out in practice. Of particular concern is how the
process would cater for people with communication difficulties or those without
internet access.
2.149
A related question concerned how individuals will be made aware of the
national opt-out arrangements and other relevant information about the My
Health Record system. The importance of this aspect of the proposed rollout was
noted in the final evaluation report of participation trials in the My Health
Record system, commissioned by the Department of Health and conducted by
Siggins Miller Consultants in 2016, which emphasised 'the need for any future
national change and adoption strategy to include a much bigger emphasis on
awareness and education'.[75] The statement of compatibility states that:
[c]omprehensive information and communication activities are
being planned to ensure all affected individuals, including parents, guardians
and carers, are aware of the opt-out arrangements, what they need to do to
participate, how to adjust privacy controls associated with their My Health
Record, or opt-out if they choose.[76]
2.150
However, no further information is provided as to what these
communication initiatives will entail and how they will be effective to ensure
all individuals are made aware of the My Health Record system including their
ability to opt-out or control disclosure of information via the system. It was
further noted that, as health recipients subject to the scheme will include a
range of individuals with specific needs, including children[77] and persons with disabilities, any information and communication activities
about the system would likely need to be appropriately tailored.
2.151
The committee therefore sought the advice of the minister as to whether
the measure is reasonable and proportionate to achieve the stated objective
and, in particular:
- whether the measure is the least rights restrictive way of
achieving its stated objective (including why current opt-in arrangements could
not be pursued on an ongoing basis, why it is necessary to automatically
include the health record of all Australians and healthcare recipients on the
My Health Record (rather than, for example, only those with complex or ongoing
health conditions), and whether the retention of data after cancellation of a
My Health Record account is adequately circumscribed); and
- whether there are sufficient processes and safeguards in place to
ensure awareness and information in relation to the system, including the
ability to opt-out or control information disclosure, will be adequately
conveyed to the public, including in relation to children and persons with a
disability.
Minister's response
2.152
The minister's response restates the objectives and potential benefits
of the My Health Record system. As noted above, the previous human rights
analysis assessed that the broad objective of improving healthcare for all
Australians is likely to be considered a legitimate objective for the purposes
of international law.
2.153
In relation to the proportionality of the measure, the minister's
response provides further information as to the breadth of health information
that will be automatically uploaded to a My Health Record:
In an opt-out setting, health information will not
automatically be uploaded to a My Health Record. When a My Health Record is
created, the only information that may be included is information held by
Medicare, specifically two years' of Medicare and Pharmaceutical Benefits
claiming information, Australian Organ Donation Register information and
Australian Immunisation Register information. A consumer can choose not to
include this information.
Health care providers are likely to only include information
in the consumer's My Health Record when the consumer has an interaction with
the health system. As such, consumers who are healthy and rarely interact with
the health system will have little, if any, health information in their My
Health Record.
2.154
The minister's response appears to suggest that the extent of
information that would be included is not extensive. However, information such
as that held by Medicare and Pharmaceutical Benefits claims may reveal
significant personal information about a person and, when included on the same
centralised database, would appear to allow for linking and matching of that
information to draw conclusions about a person's health. Notwithstanding the
legitimate public health objective pursued by the measure, from the standpoint
of the right to privacy the information that is to be included on the My Health
Record appears to be extensive. For the reasons discussed further below, it is
not clear that an individual's choice not to include this information would
constitute a sufficient safeguard.
2.155
In relation to why it is considered necessary to implement an opt-out
system, under which an electronic record will automatically be created for all
healthcare recipients, in place of current opt-in arrangements, the minister's
response provides the following information:
In November 2013, the then Minister for Health commissioned a
review of the system which confirmed some key issues that needed to be resolved
so consumers and health care providers would be more likely to use the system.
Among other things, the number of people with a My Health Record (then known as
a personally controlled electronic health record) was too small to warrant
health care providers learning how to use it or checking it for updated
information. Feedback from health care providers was that they would be more
inclined to use it if all of their patients had one, and feedback from the
Consumers Health Forum was that the system would be more successful if it were
opt-out. The review subsequently recommended the system transition to opt-out
participation arrangements.
In 2016, the Australian Government chose to undertake trials
of My Health Record participation arrangements — an opt-out model was trialled
in Northern Queensland and Nepean Blue Mountains, and innovative opt-in models
were trialled in the Ballarat Hospital, Victoria, and several private general
practices in Perth, Western Australia.
The independent evaluation of these trials found
'overwhelming and almost unanimous support' by both consumers and health care
providers for opt-out arrangements. For consumers, opt-out affords them the
benefits of having a My Health Record without taking any action, while for
health care providers, opt-out ensures the majority of their patients have a My
Health Record without the administrative burden of explaining it and assisting
patients to register. The opt-out trial sites recorded a significant increase
in health information being uploaded and viewed by health care providers, well
above that experienced in the rest of Australia, proving health care providers
actively engaged with the system where the majority of their patients have a My
Health Record. The trials evaluation recommended the opt-out model be
implemented nationally.
While the growth rate of My Health Records and their content
has continued to increase, the proportion of consumers with a My Health Record
still provides little incentive to health care providers to use the system.
In 2017, the Government agreed to implement opt-out because
it allows the My Health Record system to deliver health benefits to all
Australians at least nine years sooner [than] opt-in options. In considering participation models, opt-in models offered
limited benefits realisation, higher cost in some cases (as a result of
consumer engagement), and the models did not effectively engage health care
providers other than GPs or effectively leverage Government investment.
2.156
As stated above, while increasing the number of people using the My
Health Record system may potentially assist to achieve the objective of
improving health outcomes, it remains unclear whether a less rights restrictive
approach to achieving this objective may be reasonably available. The
minister's response indicates that opt-in arrangements would take a longer
period of time to deliver benefits and would be more costly. However, while
these potential challenges are acknowledged, it is noted that administrative
difficulties, in and of themselves, are unlikely to be a sufficient reason not to
pursue a measure that may be a less rights restrictive alternative.
2.157
Further, the response argues that it is necessary for a large volume of
health records to be accessible through My Health Records in order for it to be
effective. The minister's response also explains that opt-in arrangements have
not effectively engaged healthcare providers who may be more inclined to use
the system if all of their patients had an account. However, it is not clear
whether other approaches specifically targeted at incentivising healthcare
providers to use the system could be adopted or have been considered, rather than
the blanket application of the system nationwide on an opt-out basis. As
acknowledged in the minister's response, the number of people registering for a
My Health Record account is continuing to grow. According to statistics
published on the Australian Digital Health Agency website, the number of
individual registrations as at 1 April 2018 was over 5.6 million, with over
18,000 new records created each week.[78] This growth rate under current opt-in arrangements would appear to go some way
to alleviating the apparent concern of healthcare providers that only a small
number of individuals were using the system. Further, it is unclear why
encouraging medical professionals to use the My Health Records for those
patients who do have a record is not a reasonably available approach. In these
circumstances, there would not appear to be any less benefit to these patients
with a My Health Record than if more people had My Health Records. As such,
educating medical professions about use of My Health Records would appear to be
a less rights restrictive approach to achieving the legitimate objective of the
measure.
2.158
In relation to whether there are sufficient processes and safeguards in
place to ensure awareness of the opt-out system, the minister's response
outlines that $27.75 million has been committed 'to ensure all Australians are
aware of the My Health Record and their right to opt-out during the three month
opt-out period, and $52.38 million to supporting education and training'. The
response states that the opt-out trials of 2016 have informed the planning of a
comprehensive communications strategy which will include partnerships with
various organisations, the utilisation of a range of communication channels,
face to face briefings around the country and the provision of information at
the point of care and other community sites.
2.159
While these awareness-raising initiatives may potentially assist the
scheme to operate in a proportionate manner, concerns remain that an approach
that better safeguards the right to privacy, such as a similar communications
strategy to support current opt-in arrangements, would be reasonably available.
As stated above, opt-in arrangements under which health recipients expressly
consent to creating a My Health Record would appear to constitute a less rights
restrictive means of achieving the legitimate objective of the measure. It is
further noted that while lack of awareness about the system may be a principal
reason that more healthcare recipients have not signed on to the system, it is
also possible that some people may not have opted in to the My Heath Record
system on the basis of reasonable concerns about their privacy.
2.160
The minister's response also states that the communications strategy 'ensures
hard-to-reach audiences have been considered, such as people with communication
difficulties, and will receive enhanced support should they choose to opt-out'.
However, no further detail is provided as to how communication activities will
specifically cater for certain individuals with specific needs, such as
children or persons with a disability. Concerns therefore remain as to whether
awareness and information about the system will be adequately conveyed to
members of the public with specific needs. This is of particular concern in the
context of an opt-out system which will automatically generate electronic
health records for all healthcare recipients that do not register their
intention to opt-out within the three-month window.
2.161
The response refers to the various ways, as explained in the statement
of compatibility, that individuals may 'exercise their rights to control how
their information is collected, used and disclosed' through the My Health
Record system. As set out at [2.145] above, measures available to individuals include:
restricting access to certain information; effectively removing certain
documents from the system; requesting their healthcare provider not upload
certain information; monitoring login activity in relation to their My Health
Record; and cancelling their registration at any time. As stated above, these
measures appear to provide individuals with some degree of control over their
electronic record. However, it is noted that the burden is placed on each
individual to manage their electronic record and the effectiveness of these
controls in safeguarding informational privacy may therefore be dependent on
the adequacy of information and awareness initiatives in explaining these
access controls to My Health Record users. For some individuals, such as those
with low computer literacy or those without ready access to facilities (such as
computers) that would enable them to manage their record, this may be a particularly
substantial and potentially onerous burden.
2.162
In relation to the retention of data when a person cancels their My
Health Record, the minister's response states:
If a consumer decides to cancel their My Health Record, the
System Operator (i.e. the Australian Digital Health Agency), is required by law
to store certain information until 30 years after the consumer dies; however,
the information is not generally available to any entity other than in specific
circumstances, such as to lessen or prevent a serious threat to public safety.
The requirement to retain information was implemented to:
- ensure there is capacity to store
a minimum critical set of health information about consumers, thus providing
long-term efficacy for the purposes of health care delivery- this is critical
since the system operates on the basis of distributed public and private
repositories that are subject to differing jurisdictional laws;
- provide that, if a consumer
changes their mind and decides to get a My Health Record, the information that
existed before they cancelled it will be available to them;
- provide a source of information
that, in a de-identified form, can be used to inform and improve health
services;
-
provide for medico-legal needs,
such as if a clinical decision is made on the basis of My Health Record information
and the decision is being legally challenged; and
- reflect Commonwealth
record-keeping requirements.
2.163
The long-term retention of individuals' medical information in
electronic form, particularly in instances where a person has cancelled their
My Health Record, raises further concerns in relation to the right to privacy.
It would appear to mean that a person who does not opt-out of the My Health
Record system within the prescribed three-month period but then decides to
cancel their registration would have their personal information retained on the
system for the remainder of their life, notwithstanding they no longer consent
to being part of that system. For example, it would appear that people who are
currently children and are not opted-out during the three month period would
have their medical records created and retained for the rest of their life even
if they later choose to cancel. This long-term retention of personal
information in circumstances where a person has sought to cancel their
registration limits a person's ability to control how their personal
information is used and disclosed, which raises serious concerns as to the
adequacy of the safeguards in place to protect the right to privacy.
2.164
Ultimately the compatibility of this aspect of the measure with the
right to privacy may depend on how data retention practices and safeguards in
relation to protecting information work in practice, as well as whether
individuals are provided with sufficient information about the management and
retention of their medical information. Such information should include what
data is stored on an ongoing basis, what entities may have access to such data,
and under what circumstances and for what purpose such data may be accessed.
Effective measures should also be in place to ensure that unauthorised persons
or entities are not able to access the medical data of individuals.
Committee response
2.165
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.166
Notwithstanding the legitimate objective of the My Health Record
scheme, the preceding analysis indicates that, based on the further information
provided, the scheme in its opt-out form is likely to be incompatible with the
right to privacy. This is because:
- the implementation of the scheme on an opt-out basis may not
be a proportionate means of achieving the legitimate objective of the measure.
Specifically, opt-in participation arrangements and education of health care
professionals would appear to be a reasonably available less rights-restrictive
alternative; and
- questions remain as to the adequacy of relevant safeguards,
including in relation to ensuring awareness and information about the scheme,
as well as the long-term retention of data, including in cases where
individuals cancel their My Health Record account.
Social Services Legislation Amendment (Encouraging Self-sufficiency for
Newly Arrived Migrants) Bill 2018
Purpose |
Amends the Social
Security Act 1991 to increase the newly arrived resident's waiting period
from 104 weeks to 156 weeks for certain social security payments and
concession cards; introduce a newly arrived resident's waiting period of 156
weeks for bereavement allowance, widow allowance, parenting payment and carer
allowance; and make a technical amendment; amends the Farm Household
Support Act 2014 to increase the newly arrived resident's waiting period
from 104 weeks to 156 weeks; amends the A New Tax System (Family
Assistance) Act 1999 and Social Security Act 1991 to introduce a newly
arrived resident's waiting period of 156 weeks for family tax benefit; and amends
the Paid Parental Leave Act 2010 to introduce a newly arrived
resident's waiting period of 156 weeks for parental leave pay and dad and
partner pay |
Portfolio |
Social Services |
Introduced |
House of representatives,
15 February 2018 |
Rights |
Social security; adequate
standard of living; women's rights (see Appendix 2) |
Previous report |
3 of 2018 |
Status |
Concluded examination |
Background
2.167
The committee first reported on the bill in its Report 3 of 2018,
and requested a response from the Minister for Social Services by 11 April 2018.[79]
2.168
The minister's response to the committee's inquiries was received on
19 April 2018. The response is discussed below and is reproduced in full at Appendix 3.
2.169
The committee has considered the human rights implications of a waiting
period for classes of newly arrived residents to access social security
payments on a number of occasions.[80]
Newly arrived resident's waiting period for social security payments
2.170
The Social Services Legislation Amendment (Encouraging Self-sufficiency
for Newly Arrived Migrants) Bill 2018 (the bill) would increase the waiting
period for newly arrived residents to access a range of social security
payments including bereavement allowance, widow allowance, parenting payment,
carer allowance, farm household allowance, family tax benefit, parental leave
pay and dad and partner pay from 104 weeks (2 years) to 156 weeks (3 years).[81] It will also extend the waiting period to access the low income Health Care
Card (HCC) and Commonwealth Seniors Card from 104 weeks (2 years) to 156 weeks
(3 years).
Compatibility of the measure with
the right to social security, the right to an adequate standard of living and
the right to health
2.171
The right to social security recognises the importance of adequate social
benefits in reducing the effects of poverty and plays an important role in
realising many other economic, social and cultural rights, particularly the
right to an adequate standard of living and the right to health.[82] The right to an adequate standard of living requires state parties to take
steps to ensure the availability, adequacy and accessibility of food, clothing,
water and housing for all people in Australia, and also imposes on
Australia the obligations listed above in relation to the right to social
security.[83]
2.172
Australia has obligations to progressively realise these rights and also
has a corresponding duty to refrain from taking retrogressive measures, or
backwards steps.[84] Retrogressive measures, a type of limitation, 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.
2.173
The initial human rights analysis stated that extending the waiting
period to three years (from the current two years) further restricts access to
social security (including health care cards) for newly arrived residents.
Accordingly, the measure constitutes a retrogressive measure, a type of
limitation, in the realisation of the right to social security, the right to an
adequate standard of living and the right to health.
2.174
The statement of compatibility acknowledges that the measure engages the
right to social security and states that:
Given the current fiscal environment...three years is a
reasonable period to expect new permanent migrants to support themselves and
their families when they first settle in Australia. This will reduce the burden
placed on Australia’s welfare payments system and improve its long-term
sustainability.[85]
2.175
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
economic, social and cultural rights. However, the United Nations Committee on
Economic, Social and Cultural Rights has explained that any retrogressive
measures:
...require the most careful consideration and would need to be
fully justified by reference to the totality of the rights provided for in the
Covenant [ICESCR] and in the context of the full use of the maximum available
resources.[86]
2.176
In this respect, the initial analysis noted that limited information has
been provided in the statement of compatibility to support the characterisation
of financial sustainability or budgetary constraints as a pressing or
substantial concern in these specific circumstances. If this were a legitimate
objective for the purposes of international human rights law, reducing
government spending through this measure may be capable of being rationally
connected to this stated objective.
2.177
In relation to the proportionality of the limitation, the statement of
compatibility explains that there will be a range of exemptions from the
waiting period. These include exemptions for humanitarian migrants, New Zealand
citizens on a Special Category visa, and holders of certain temporary visas,
including temporary protection visas and Safe Haven Enterprise Visas, to be
able to immediately access family tax benefit payments, parental leave pay and
dad and partner pay.[87] It is relevant to the proportionality of the limitation that certain classes of
visa holders will be able to access a number of social security payments.
2.178
The statement of compatibility explains that there will also be a
provision for migrants who become lone parents after becoming an Australian
resident, to access social security payments:
Migrants who become a lone parent after becoming an
Australian resident will continue to be exempt from the waiting period for
parenting payment, newstart allowance and youth allowance. Those who receive an
exemption from the waiting period for one of these payments will also be exempt
from the waiting period for FTB [family tax benefit]. Those who subsequently
have a new child will also be able to transfer to PLP [parental leave pay] or
DaPP [dad and partner pay] if they are otherwise qualified. This ensures that
parents who lose the support – financial and otherwise – of a partner have
access to support for themselves and their children.[88]
2.179
The statement of compatibility further explains that the availability of
Special Benefit social security payments is an additional safeguard in relation
to the measure:
...migrants who experience a substantial change in
circumstances after the start of their waiting period, and are in financial
hardship, will continue to be exempt from the waiting period for special
benefit. Special benefit is a payment of last resort that provides a safety net
for people in hardship who are not otherwise eligible for other payments. Those
who receive this exemption and have dependent children will also be exempt from
the waiting period for FTB. Consistent with established policy (contained in
the Guide to Social Security Law) this may include migrants:
- who are the victim of domestic or family violence;
- who experience a prolonged injury or illness and are unable to
work, or whose partner or sponsor does;
- whose dependent child develops a severe medical condition,
disability or injury; or
- whose sponsor or partner dies, becomes a missing person or is
imprisoned leaving the migrant with no other means of support.
These exemptions ensure that there continues to be a safety
net available for potentially vulnerable individuals and families who are
unable to support themselves despite their best plans.
2.180
As noted in the initial analysis, the Special Benefit appears to provide
an important safeguard such that these individuals could afford the basic
necessities to maintain an adequate standard of living in circumstances of
financial hardship. This is of considerable importance in relation to the
proportionality of the limitation.
2.181
However, increasing the waiting period to access social security for
newly arrived residents generally from two years to three years is still a
considerable reduction in the availability of social security. In this respect,
the initial analysis stated that it would be useful for further information to
be provided about any consideration of alternatives to reducing access to
social security, in the context of Australia's use of its maximum available
resources.
2.182
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 in the specific
circumstances of the proposed legislation;
- 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 its stated objective (including the extent of the reduction in
access to social security payments; what level of support Special Benefit
payments provide; and whether the measure is the least rights restrictive approach);
and
- whether alternatives to reducing access to social security, in
the context of Australia's use of its maximum available resources, have been
fully considered.
Minister's response
2.183
The minister's response provides a range of information as to whether
the measure constitutes a permissible limitation on the right to social
security. In relation to whether there is reasoning or evidence that
establishes that the stated objective addresses a pressing or substantial
concern, the minister's response states:
It is important that Australia's welfare payments systems
remains sustainable into the future and continues to provide the best possible
encouragement for people to support themselves where they are able. This
includes migrants settling permanently in this country.
Returning the Budget to balance by living within our means
remains a key element of the Government’s economic plan. To achieve the
Government’s fiscal strategy, including a return to surplus in 2020-21,
fiscally responsible decisions are required to keep spending under control.
In 2016-17, Australia’s expenditure on welfare payments to
individuals (including social security payments, family assistance payments and
paid parental leave payments) was $109.5 billion, representing around a quarter
of the overall Commonwealth Budget.
Given the substantial expenditure associated with the welfare
payments system, maintaining the ongoing sustainability of the system is
critical to the Government’s fiscal strategy. The Encouraging Self
Sufficiency for Newly Arrived Migrants measure announced in the 2017-18
Mid-Year Economic and Fiscal Outlook (MYEFO) contributes to achieving this
fiscal outcome.
The measure is estimated to improve the Budget bottom line by
around $1.3 billion over the four years from 2017-18. There will continue to be
savings beyond the forward estimates period, contributing to the ongoing
sustainability of the welfare payments system.
2.184
While not put expressly in these terms, the minister appears to be
arguing that unless the 'substantial expenditure' on social security is curbed
then there is a risk that the welfare system may collapse or will have to be
restricted in other ways. That is, there is a concern that, given a limited
pool of government resources, mounting costs could affect the availability of social
security for those who require it. To the extent this is the case ensuring the
sustainability of the welfare system in the context of budgetary constraints is
likely to constitute a legitimate objective for the purposes of international
human rights law. By improving the 'budget bottom line', the information
provided also shows that the measure is likely to be rationally connected to
that objective.
2.185
The minister's response provides a range of information as to the
proportionality of the limitation.
2.186
In terms of the scope of the application of the measure, it explains
that the waiting period will apply primarily to new migrants settling in
Australia under the permanent skilled and family streams of the migration
program. The response states that the eligibility criteria for grant of
permanent visas through these streams reflects the Government's expectation
that applicants will either support themselves or be supported by family
members during their initial period in Australia. In this respect, the
minister's response explains that the new waiting period will only apply to
people granted a permanent visa after 1 July 2018 and states that '[t]his is
designed to provide individuals and families seeking to migrate to Australia
time to be aware of the new rules so that they can make an informed decision
when applying for or accepting a permanent visa and make plans to support
themselves during the waiting period'. The new waiting period will not apply to
migrants granted permanent residency before 1 July 2018 or to those who have
already served the existing waiting period. It is noted that the prospective
application of the measure assists with the proportionality of the measure.
2.187
In relation to the extent of the reduction in access to social security
payments, the minister's response indicates that of the non-humanitarian
permanent migrants who come to Australia each year the majority did not require
welfare support either during or after their waiting period. The response
further states that:
The impact of this measure will only be felt by those
migrants who would have otherwise sought and received certain payments during
this period. It is estimated that when the measure is fully implemented in
2020-21 around 50,000 families will be serving a waiting period for Family Tax
Benefit Part A and around 30,000 will be serving a waiting period for other
payments. These figures may encompass the same individuals as these payments are
not mutually exclusive. The overall financial impact on affected individuals
and families will depend on their circumstances and the payments they would
otherwise have received.
2.188
In relation to the proportionality of the limitation, the minister's
response reiterates that there is a range of exemptions to the waiting period.
This includes exemptions for humanitarian migrants and their family members due
to their particular vulnerabilities. More broadly, the minister's response also
outlines that there will still be a 'safety net' in place in relation to those
who find themselves in need or whose circumstances change:
People who become a lone parent after becoming an Australian
resident are exempt from the [waiting period] for Parenting Payment, Newstart
Allowance, Youth Allowance and Farm Household Allowance. This exemption ensures
that parents, often mothers, who no longer have the support of a partner can
still access financial support for themselves and their children.
Migrants who experience a substantial change of circumstances
and are in financial hardship will be exempt from the [waiting period] for
Special Benefit which is delivered through the Department of Human Services.
Special Benefit is a payment of last resort that provides support for people in
financial hardship who are unable to obtain or earn a sufficient livelihood for
themselves and any dependants and who are not eligible for any other income
support payment.
Special Benefit provides a basic level of support, usually
equal to Newstart Allowance (or Youth Allowance if the person is aged under 22
years). Supplementary payments such as Rent Assistance, may also be paid in
addition to these basic rates. Recipients of Special Benefit are also entitled
to an automatic Health Care Card or Pensioner Concession Card, depending on
their circumstances.
The exemption from the [waiting period] for Special Benefit
provides a safety net for those who find themselves in hardship with no other
means of support for reasons beyond their control. Situations which constitute
a substantial change of circumstances for the purposes of this exemption
include:
- experiencing domestic violence
-
losing a job organised prior to
coming to Australia
- suffering a prolonged injury or
illness and being unable to work
- having to care for a dependent
child who develops a severe medical condition, disability or injury, or
- being left with no other means of
support after their sponsor or partner dies, becomes a missing person or is
imprisoned.
This exemption recognises that migrants who have made plans
to support themselves when they arrive in Australia may experience a change of
circumstances that prevents them from realising those plans.
There are a number of new exemptions being introduced through
this Bill in relation to the new payments that will be subject to a [waiting
period] for the first time. This includes exemptions designed to ensure the new
[waiting period] operates coherently with the existing exemptions outlined
above:
- People with a Family Tax Benefit
eligible child will be exempt from the [waiting period] for the Low-Income
Health Care Card. These families would previously have qualified for a Health
Care Card as part of their Family Tax Benefit. The exemption ensures that they
can still receive a concession card where eligible and access associated health
concessions, including discounted items under the Pharmaceutical Benefits
Scheme.
- People who are receiving a social
security pension or benefit or Farm Household Allowance (for example, because
they are exempt from the [waiting period] for that payment) will also be exempt
from the [waiting period] for family payments and Carer Allowance. This will
ensure that exemptions operate consistently across welfare payments and those
exempt can access both primary income support payments and supplementary
assistance for dependent children and/or caring responsibilities where
eligible.
Finally, New Zealand citizens on a Special Category Visa will
be exempt from the [waiting period] for Family Tax Benefit, Parental Leave Pay
and Dad and Partner Pay. This exemption only applies for certain payments as
Special Category Visa holders are generally not eligible for other payments.
This exemption ensures that New Zealand citizens in Australia will continue to
access the same benefits in recognition of the particular Trans-Tasman
arrangements between Australia and New Zealand. Special Category Visa holders
who later move to a permanent visa will continue to be eligible for this
exemption, ensuring they can continue to receive these payments while serving
the [waiting period] for other payments.
The above exemptions ensure that this measure strikes a
balance between promoting self-reliance for migrants and providing appropriate
safeguards for those in vulnerable circumstances.
2.189
These exemptions, including the availability of the Special Benefit, are
likely to act as important safeguards to ensure that those in situations of
financial hardship or whose circumstances change can afford the basic
necessities to maintain an adequate standard of living. These exemptions, in
combination with the scope of the measure, support an assessment that it is
likely to be a proportionate limitation on the right to social security and the
right to an adequate standard of living. In this respect, the minister's
response also argues that the measure is the least rights restrictive approach
to achieve its objective to balance the budget and notes that permanent
migrants will still have access to broader government funded services including
health care and education.
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 additional information provided and the
availability of safeguards, the committee notes that the measure appears likely
to be compatible with the right to social security.
Compatibility of the measure with
the right to maternity leave
2.192
The right to maternity leave is protected by article 10(2) of the
International Covenant on Economic, Social and Cultural Rights (ICESCR) and
article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW)[89] and includes an entitlement for parental leave with pay or comparable social
security benefits for a reasonable period before and after childbirth.
2.193
The UN Committee on Economic, Social and Cultural Rights has further explained
that the obligations of state parties to the ICESCR in relation to the right to
maternity leave include the obligation to guarantee 'adequate maternity leave
for women, paternity leave for men, and parental leave for both men and women'.[90] The initial analysis stated that by extending the waiting period for access to parental
leave pay and dad and partner pay, the measure engages and limits this right.
2.194
In restricting the paid maternity leave support available to newly
arrived migrants for a further year (bringing the total waiting period to three
years), the measure is a retrogressive measure, a type of limitation, for the
purposes of international human rights law.
2.195
As noted above, limitations on human rights 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.
2.196
The statement of compatibility acknowledges that the measure engages the
right to paid maternity leave but appears to argue that this limitation is
permissible. However, limited information or reasoning was provided as to whether
the objectives of ensuring financial sustainability or budgetary constraints
address a pressing or substantial concern in these specific circumstances. As
noted above, reducing government spending through this measure would appear to
be rationally connected to this stated objective.
2.197
In relation to the proportionality of the limitation, the statement of
compatibility states:
While it is acknowledged that the upbringing of children
requires a sharing of responsibility between men and women and society as a
whole, it is reasonable to expect that migrants who make the decision to have a
child during their initial settlement period should also allow for the costs of
supporting themselves and their children during the waiting period.
The Australian welfare system is targeted so that those who
most need help receive it. In order to sustain this, those who can support
their children are expected to do so.[91]
2.198
However, this does not fully take into account that the timing of having
children and a consequential need for paid maternity leave may not necessarily
be something that is fully in the hands of potential parents. Noting that the
measure applies to a range of visas, it also does not explain why newly arrived
residents would necessarily be in a better position to adequately support the
costs of having children than other individuals.
2.199
The statement of compatibility further explains in relation to the
proportionality of the measure that there is a transitional period so that
migrants who may have a baby born between 1 July 2018 and 1 January 2019 will
still be able to access paid parental leave. While having a transitional period
may be an important safeguard ensuring expectant parents who had planned care
arrangements around the existing parental leave provisions would not be
affected by the changes, it does not address broader concerns.
2.200
It was noted that increasing the waiting period to access paid parental
leave from two years to three years is a considerable reduction in the
availability of parental leave pay and dad and partner pay. It may have
particularly significant consequences for those who have no access to other
paid parental leave arrangements through their employer. In this respect, it
would be useful for further information to be provided about any consideration
of alternatives to reducing access to social security, in the context of
Australia's use of its maximum available resources.
2.201
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 in the specific
circumstances of the proposed legislation;
- 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 its stated objective (including the extent of the reduction in
access to parental leave payments; the existence of relevant safeguards; and
whether the measure is the least rights restrictive approach); and
- whether alternatives to reducing access to paid parental leave,
in the context of Australia's use of its maximum available resources, have been
fully considered.
Compatibility of the measure with the right to equality and
non-discrimination
2.202
The right to equality and non-discrimination is protected by articles 2
and 26 of the ICCPR. In addition to these general non-discrimination
provisions, articles 1, 2, 3, 4 and 15 of the CEDAW further describe the
content of these obligations, including the specific elements that state
parties are required to take into account to ensure the rights to equality for
women.[92]
2.203
'Discrimination' encompasses a distinction based on a personal attribute
(for example, race, sex or on the basis of disability),[93] which has either the
purpose (called 'direct' discrimination), or the effect (called 'indirect'
discrimination), of adversely affecting human rights.[94] The UN Human Rights
Committee has explained indirect discrimination as 'a rule or measure that is
neutral on its face or without intent to discriminate', which exclusively or
disproportionately affects people with a particular protected attribute.[95]
2.204
As women are the primary recipients of paid parental leave, increasing
the waiting period for access may have a disproportionate negative effect on
women who are newly arrived residents. Where a measure impacts on particular
groups disproportionately, it establishes prima facie that there may be
indirect discrimination.[96] Differential treatment (including the differential effect of a measure that is
neutral on its face)[97] 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.
2.205
The statement of compatibility acknowledges that the right to equality
and non-discrimination is engaged. It states that the measure pursues the
objective of 'ensuring newly arrived migrants meet their own living costs...in
order to keep the system sustainable into the future'.[98] As noted above, limited information or reasoning has been provided as to
whether the objectives of ensuring financial sustainability or budgetary
constraints address a pressing or substantial concern in these specific
circumstances. Further, while the statement of compatibility points to the
existence of particular exemptions which may operate as safeguards, no
information is provided as to whether the measure is the least rights
restrictive approach.
2.206
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 in the specific
circumstances of the proposed legislation;
- 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 its stated objective (including whether it is based on reasonable
and objective criteria; the extent of the reduction in access to parental leave
payments; the existence of relevant safeguards; and whether the measure is the
least rights restrictive approach); and
- whether alternatives to reducing access to paid parental leave,
in the context of Australia's use of its maximum available resources, have been
fully considered.
Minister's response in relation to the right to maternity leave and the
right to equality and non-discrimination
2.207
The minister's response provides a range of information as to the
compatibility of the measure with the right to paid maternity leave and the
right to equality and non-discrimination. The minister's response explains that
the Paid Parental Leave Act 2010 provides for the Paid Parental Leave
scheme, which complements the entitlement to unpaid leave under the National
Employment Standards in the Fair Work Act 2009. The minister's response
states that under the Fair Work Act 2009 parents to whom the waiting
period applies will still have access to 12 months of unpaid parental leave
without loss of employment or seniority within the workplace. However, while
there will be continued access to unpaid parental leave, the effect of the
measure is that those who are not entitled to employer funded benefits will not
have access to paid parental leave during the waiting period.
2.208
As noted above, given that women are the primary recipients of paid
parental leave, the measure will have a disproportionate negative effect on
women who are newly arrived residents. In this respect, it is noted that the very
purpose of the right to paid maternity leave is not targeted purely at meeting
necessities but providing financial support to women (and men) following the
birth of a child in order to prevent discrimination against women on the
grounds of maternity.[99]
Indeed, such purposes appear to be reflected in Australian domestic law as unlike
other social security benefits, paid maternity leave is not subject to the same
level of means testing in Australia.[100]
2.209
As set out above, the measure is likely to pursue the legitimate
objective of ensuring the financial sustainability of the welfare system and be
rationally connected to that objective. In relation to the proportionality of
the measure, the minister's response states:
The majority of newly arrived migrants in scope for this
measure are expected to be able to provide for themselves and their family
members during the [waiting period], as they are settling in Australia through
the skilled and family streams of the migration program. These migrants are
well placed to support themselves through work, existing resources or family
support. Most are also expected to be able to make informed decisions about
growing their families within the settlement period.
2.210
In relation to the groups of migrants to which the measure will apply,
the minister's response explains that the government will ensure that these
migrants have access to information about the scope of the measure 'to ensure
they are aware of the changes and can make informed decisions about whether to
apply for or accept a permanent visa'. The response also further explains that
transitional arrangements are being provided so that those who may already be
pregnant and have planned leave arrangements are not disadvantaged:
Under these arrangements, people granted a permanent or
eligible temporary visa on or after 1 July 2018 will still be able to access
Parental Leave Pay and Dad and Partner Pay if they have a newborn or adopt a
child between 1 July 2018 and 31 December 2018 (inclusive) and they are
otherwise qualified for the payment (including meeting the work test and income
test).
2.211
Providing that the measures will not apply to currently expectant
parents, who may have made plans on the basis of current arrangements, is
relevant to the proportionality of the measure. The response further notes that
the measure will not affect humanitarian migrants and their family members,
acknowledging these people are often particularly vulnerable and may have less
capacity to plan for their own support prior to coming to Australia.
2.212
The response also points to a specific exemption to the waiting period
for Parental Leave Pay and Dad and Partner Pay 'for families with children who
experience a change of circumstances and are unable to support themselves as
originally planned, including those who become a lone parent after arrival and
no longer have the support of their partner, and those in financial hardship'.
The minister's response further explains, in relation to the impact of the
measure on women that:
...while the range of exemptions from the [waiting period] are
not specifically targeted to women, some circumstances that attract an
exemption for income support payments – for example, becoming a single parent
or experiencing a change in circumstances such as domestic violence – are most
likely to be experienced by women.
These exemptions ensure that migrants in these circumstances,
particularly migrant women, can still access financial support through
payments, such as Parenting Payment or Special Benefit, where eligible. Those
who [are] granted one of these payments under an exemption will also be exempt
from the [waiting period] for the Paid Parental Leave Scheme, Family Tax
Benefit and Carer Allowance. This ensures that migrants in these circumstances
who have dependent children or caring responsibilities for a person with [a]
disability can also access additional support where eligible. For example, a
woman granted Special Benefit because she is in hardship due to a change in
circumstances would also be able to receive Family Tax Benefit for any eligible
children and would also be able to transfer to Parental Leave Pay if she has a
new baby and meets all the requirements.
The comprehensive range of exemptions and safeguards ensure
migrants, particularly migrant women, retain access to payments, including Paid
Parental Leave payments, where they find themselves in hardship. Given these
exemptions, this measure is the least restrictive way of applying consistent
rules and expectations for new migrants in order to improve the sustainability
of the welfare payments system, both in the short and longer term.
2.213
The availability of such payments is relevant to the proportionality of
the measure. In particular there appears to be a safety net in place in
relation to basic necessities. As set out above, this addresses concerns
regarding access to social security.
2.214
However, while the exemptions provide for access to paid parental leave
in some circumstances, they do not fully address the concerns as to the right
to paid maternity leave and the consequential impact on the right to equality
and non-discrimination. In relation to the measure, the minister's response
states:
Targeting expenditure remains an essential part of balancing
the distribution of available resources with the most effective measures for
addressing barriers and creating opportunity. Residency waiting periods already
play a fundamental role in targeting immediate access to social security
payments. This measure will strengthen the existing waiting periods by applying
consistent rules across welfare payments types, including social security and
family payments, ensuring that migrants support themselves and their families
for a reasonable period before becoming eligible for taxpayer-funded parental
leave or other payments.
2.215
However, the application of these rules in the context of paid parental
leave has a range of consequences that raise concerns from a human rights
perspective. It means that a woman, subject to the waiting period, who earns a
low income, will generally not have access to the paid parental leave scheme
while a woman who earns considerably more (up to $150,000) would have access to
the scheme. That is, to the extent that part of the justification for the
measure is the targeting of limited resources, the measure does not appear to
necessarily target those most in need. In this context, the extent of the
disproportionate impact on women subject to the waiting period could be
considerable, and the measure could exacerbate the disadvantage experienced by
those who are already vulnerable. The purpose of the right to paid maternity
leave is to prevent discrimination against women on the grounds of maternity.
By restricting access to paid maternity leave the measure may ultimately
exacerbate inequalities experienced by women subject to the waiting period. It
is unclear that the measure represents the least rights restrictive approach.
Accordingly, the measure does not appear to be a proportionate limit on the
right to paid maternity leave and may also constitute unlawful discrimination
against women.
Committee response
2.216
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.217
The preceding analysis indicates that the measure may be
incompatible with the right to paid maternity leave and the right to equality
and non-discrimination.
Treasury Laws Amendment (Black Economy Taskforce Measures No. 1) Bill 2018
Purpose |
Introduces offences
prohibiting the production, distribution and possession of sales suppression
tools in relation to entities that have Australian tax obligations. Also
requires entities providing courier or cleaning services that have an ABN to
report to the Australian Taxation Office information about transactions that
involve engaging other entities to undertake those courier or cleaning
services for them |
Portfolio |
Treasury |
Introduced |
House of Representatives, 7
February 2018 |
Rights |
Presumption of innocence,
privacy (see Appendix 2) |
Previous report |
3 of 2018 |
Status |
Concluded examination |
Background
2.218
The committee first reported on the Treasury Laws Amendment (Black
Economy Taskforce Measures No. 1) Bill 2018 (the bill) in its Report 3 of
2018, and requested a response from the Treasurer by 11 April 2018.[101]
2.219
The Minister for Revenue and Financial Services responded to the
committee's inquiries on 13 April 2018. The response is discussed below and is
reproduced in full at Appendix 3.
Strict liability offences relating to the production, distribution and
possession of sales suppression tools
2.220
Schedule 1 of the bill seeks to introduce offence provisions relating to
the production or supply of electronic sales suppression tools[102] and the acquisition, possession or control of such tools where the person is
required to keep or make records under an Australian taxation law.[103] A person will also commit an offence where they have incorrectly kept records
using electronic sales suppression tools.[104] Each of these offences are offences of strict liability.[105]
Compatibility of the measure with
the right to the presumption of innocence
2.221
The initial analysis explained that the proposed strict liability
offences engage and limit the right to presumption of innocence[106] because they allow for the imposition of criminal liability without the need to
prove fault. The statement of compatibility for the bill stated that the bill
did not engage 'any of the applicable rights or freedoms',[107] but stated that 'applying strict liability to
these offences covered by these amendments is appropriate because it
substantially improves the effectiveness of the prohibition on electronic sales
suppression tools'.[108]
2.222
The initial analysis drew the minister's attention to the committee's Guidance
Note 2 and restated the committee's usual expectation that the statement of
compatibility provides an assessment of whether such limitations on the
presumption of innocence are permissible such that they pursue a legitimate
objective, are rationally connected to that objective, and are a proportionate
means to achieving that objective.
2.223
The committee therefore sought advice as to:
- whether the strict liability
offences are aimed at achieving a legitimate objective for the purposes of
human rights law;
- how this measure is effective to
achieve (that is, rationally connected to)
that objective; and
- whether the limitation on the
right to be presumed innocent is proportionate to achieve the stated objective.
Minister's response
2.224
As to whether the presumption of innocence is engaged or limited by the
bill, the minister's response states:
I believe that Schedule 1 to the Bill does not engage or
limit the right to the presumption of innocence. A strict liability offence
removes the requirement for a fault element to be proven before a person can be
found guilty of an offence. However the prosecution must still prove all of the
physical elements to the offence before a court will impose any criminal
liability.
2.225
However, while it is the case that the physical elements must still be
proved by the prosecution, strict liability offences do engage and limit the
presumption of innocence because they allow for the imposition of criminal liability
without the need to prove fault (mens rea).[109] Further, as noted in the initial analysis, strict liability 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, they must meet the 'limitation criteria': they must pursue a
legitimate objective and be rationally connected and proportionate to that
objective.
2.226
While not acknowledging the limitation on the right to be presumed
innocent imposed by the offences, the minister nevertheless provides
information addressing these criteria. In relation to whether the measures are
aimed at achieving a legitimate objective for the purposes of human rights law,
the minister's response states:
The object of Schedule 1 to the Bill is to deter the
production, use and distribution of tools to manipulate or falsify electronic
point of sale records to facilitate tax evasion.
This is a legitimate objective for the purposes of human
rights law because electronic sales suppression tools serve no legitimate
function. They are specifically designed to understate income and assist in
avoiding tax obligations. Such behaviour undermines the integrity of the tax
system.
2.227
Ensuring the integrity of the tax system may be a legitimate objective
for the purposes of international human rights law. In light of the information
contained in the explanatory memorandum concerning the significant problem of
the black economy and its impact on the integrity of the tax system,[110] it seems likely that addressing this problem will constitute a legitimate
objective for the purposes of international human rights law.
2.228
As to how the measures are effective to achieve the stated objective,
the minister's response explains that strict liability offences substantially
improve the effectiveness of the prohibition on electronic sales suppression
tools. In particular, the minister's response states that the strict liability
offences would 'act as a significant and real deterrent to those entities who
seek to profit by facilitating tax evasion and fraud through the tools'
production and supply' and explains that the 'ability to prosecute people who
facilitate the fraud earlier in the supply chain will significantly reduce the
instances of fraud at the user level'. Based on the information provided, it is
likely that the measure is rationally connected to the legitimate objective.
2.229
As to the proportionality of the measure, the minister explains that the
strict liability offences are 'appropriate and proportionate' because an
electronic sales suppression tool's principal function is to facilitate tax
evasion and fraud, and there are no reasons for an entity to produce or supply
such a tool beyond those covered by the applicable defences. The minister's
response also notes that, in addition to the defence of honest and reasonable
mistake, there are offence-specific defences which will operate as safeguards
'to ensure that entities who undertake certain conduct in relation to an
electronic sales suppression tool are protected from committing an offence
where their conduct is undertaken to prevent or deter tax evasion, or to
enforce a taxation law'. Based on the information provided and the regulatory
context, on balance, the strict liability offences are likely to be considered
a proportionate limitation on the presumption of innocence.
Committee response
2.230
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.231
Based on the information provided and the above analysis, the
committee considers the strict liability offences are likely to be compatible
with the presumption of innocence.
Mr Ian Goodenough MP
Chair
Navigation: Previous Page | Contents | Next Page