New and continuing matters[1]
1.1
This chapter provides assessments of the human rights compatibility of:
- bills introduced into the Parliament, or restored to the notice
paper, between 29 July and 1 August 2019;
- legislative instruments registered on the Federal Register of
Legislation between 5 June and 1 August 2019;[2] and
- bills and legislative instruments previously deferred.[3]
Response required[4]
1.2 The committee seeks a response from the relevant minister with respect
to the following bill.
Migration Amendment (Repairing Medical Transfers) Bill 2019[5]
Purpose |
Amends the Migration Act
1958 to: remove provisions inserted by the Home Affairs Legislation
Amendment (Miscellaneous Measures) Act 2019 (the medical transfer
provisions) which created a framework for the transfer of transitory persons
(and their family members, and other persons recommended to accompany the
transitory person) from regional processing countries to Australia for the
purposes of medical or psychiatric assessment or treatment; and provide for
the removal from Australia, or return to a regional processing country, of
transitory persons who are brought to Australia under the medical transfer
provisions, once the temporary purpose for which they were brought to
Australia is complete |
Portfolio |
Home Affairs |
Introduced |
House of representatives, 4
July 2019 |
Rights |
Non-refoulement; effective
remedy; health |
Status |
Seeking additional
information |
Repeal of the medical transfer provisions
1.3 Currently, the medical transfer provisions of the Migration Act 1958 (Migration Act)[6] allow two treating doctors to recommend that a person, held under regional
processing arrangements[7] be transferred to Australia for medical treatment or assessment.[8] Within 72 hours, the minister must approve the transfer unless the
minister reasonably believes or suspects there are security, character
or medical grounds[9] for refusal.[10] If the minister's ground for refusing a transfer is medical, the matter is
reviewed by the Independent Health Advice Panel. If the panel recommends the transfer
be approved, the minister must approve the transfer unless there remain
security or character grounds for refusal.[11]
1.4 The Migration Amendment (Repairing Medical Transfers) Bill 2019 (the
bill) seeks to repeal these medical transfer provisions.[12] Additionally, the bill seeks to apply the requirement under section 198(1A) of
the Migration Act so that persons transferred to Australia under the medical
transfer provisions are to be removed from Australia or returned to a regional
processing country, as soon as reasonably practicable, unless a specified exemption
applies.[13]
The obligation of non-refoulement
and the right to an effective remedy
1.5 Australia has 'non-refoulement' obligations under the International
Covenant on Civil and Political Rights (ICCPR) and the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
This means that Australia must not return any person to a country where there
is a real risk that they would face persecution, torture or other serious forms
of harm, such as the death penalty; arbitrary deprivation of life; or cruel,
inhuman or degrading treatment or punishment.[14] Non-refoulement obligations are absolute and may not be subject to any
limitations. The obligation of non-refoulement and the right to an effective
remedy require an opportunity for independent, effective and impartial review
of decisions to deport or remove a person.[15]
1.6 As a matter of international law, the obligation of non-refoulement in
this bill does not involve the extraterritorial application of obligations. This
is because the persons who may be removed from Australia as a result of these
amendments are currently present in Australian territory. Australia therefore
owes human rights obligations to them, including an obligation not to send them
to a country where there is a real risk of that they would face persecution,
arbitrary deprivation of life, torture or cruel, inhuman or degrading treatment
or punishment.
1.7 In relation to the potential risk of harm of sending or returning
someone to a regional processing country, in 2013 the committee raised human
rights concerns about such transfers and about the conditions in regional
processing countries including in offshore immigration detention. This included
concerns in relation to the right to humane treatment in detention; the right
not to be arbitrarily detained; the right to health and the rights of the
child.[16] The United Nations (UN) Committee Against Torture has also expressed concerns
about the transfer of individuals to regional processing centres in Papua New
Guinea (Manus Island) and Nauru in view of reports of 'harsh conditions' and
'serious physical and mental pain and suffering'.[17] Similarly, the UN Special Rapporteur on the human rights of migrants has also
raised concerns about 'systemic human rights violations' and recommended the
closure of regional processing centres.[18] In relation to the conditions on Nauru and Manus Island, the UN Special
Rapporteur has specifically stated that '[t]he forced offshore confinement
(although not necessarily detention anymore) in which asylum seekers and
refugees are maintained constitutes cruel, inhuman and degrading treatment or
punishment according to international human rights law standards.'[19]
1.8 However, the statement of compatibility does not specifically address
the issue of whether sending someone back to a regional processing country
complies with Australia's non-refoulement obligations in the context of the
reported conditions for individuals in regional processing countries. More
generally, in relation to the obligation of non-refoulement, the statement of
compatibility states:
The Government takes Australia's non-refoulement obligations
seriously, and will ensure administrative arrangements are in place to support
Australia to meet its non-refoulement obligations to those individuals...
The amendments do not impact on the protections against refoulement, which
already exist in Australia's legislation, policies and procedures. In making
the amendments, the Government is not creating any new obligations or seeking
to avoid obligations. Australia will continue to meet its non-refoulement obligations
through other mechanisms under the Migration Act, policies and procedures.[20]
1.9 While it is welcome that the Australian government takes non-refoulement
obligations seriously, it is unclear from the information provided what
safeguards exist to ensure a person is not removed from Australia in violation
of Australia's non-refoulement obligations. On a number of previous occasions, the
committee has raised serious concerns about the adequacy of protections against
the risk of refoulement in the context of the existing legislative regime.[21] In the context of the proposed application of the requirement under section
198AD of the Migration Act to remove a person as soon as reasonably
practicable, it is unclear there is sufficient scope for independent and
effective review of such a removal.[22] More generally, there do not appear to be sufficient legislative and procedural
mechanisms to guard against the consequence of a person being sent to a
regional progressing country even in circumstances where there may be a risk of
harm to the person in that country including in the context of immigration
detention. Further, as noted above, the statement of compatibility does not
specifically address the issue of whether sending someone to a regional
processing country complies with Australia's non-refoulement obligations in the
context of the reported conditions for individuals in regional processing
countries.
1.10
The committee notes that the bill would provide for the removal
from Australia, or return to a regional processing country, of all persons
brought to Australia under the medical transfer provisions once the purpose for
which they were brought to Australia is complete. The committee has previously
raised human rights concerns about the conditions for individuals transferred
to regional processing countries.
1.11
The committee seeks the minister's advice as to the compatibility
of these measures with the obligation of non-refoulement and the right to an
effective remedy, in particular:
- what are the conditions for such individuals in regional
processing countries and is there a risk that such conditions could amount to
torture or cruel, inhuman or degrading treatment or punishment;
- what safeguards are in place to ensure that a person is not removed
from Australia to a regional processing country in contravention of Australia's
non-refoulement obligations; and
- is there independent, impartial and effective review of any
decision to remove the person from Australia.
Right to health
1.12
By repealing the medical transfer provisions, the measure engages and
may limit the right to health.[23] This is because restricting access to a type of medical transfer to Australia
may in turn restrict access to appropriate health care for those held under
regional processing arrangements (in circumstances where Australia may owe
human rights protection obligations, see paragraphs [1.14] to [1.15] below). The
right to health is understood as the right to enjoy the highest attainable
standard of physical and mental health, and requires available, accessible,
acceptable and quality health care. It is a right to have access to adequate
health care (including reproductive and sexual healthcare) as well as to live
in conditions that promote a healthy life (such as access to safe drinking water,
housing, food and a healthy environment). The right to health requires States
parties to ensure the right of access to health facilities, goods and services
on a non-discriminatory basis.[24]
1.13
In 2013 the committee raised concerns about the adequacy of access to
health care and the right to health for those held under regional processing
arrangements.[25] More recently, the UN Committee on Economic, Social and Cultural Rights has
expressed serious concerns about 'harsh conditions' in regional processing centres
and 'limited access to basic services, including health care.'[26] It has called on Australia to halt its policy of offshore processing of asylum
claims.[27] The UN Special Rapporteur on the human rights of migrants has also raised
concerns about the health and health care of those held in regional processing
countries including that 'protracted periods of closed detention and the
uncertainty about the future reportedly creates serious physical and mental
anguish and suffering'.[28]
1.14
In relation to the scope of Australia's human rights obligations, under
international law Australia owes obligations to everyone within its territory but
also to anyone located outside Australia over whom Australia is exercising
power, effective control or who is otherwise subject to Australia's
jurisdiction. In this respect, the statement of compatibility notes that
persons in regional processing countries are outside Australia's territory.
While the statement of compatibility acknowledges that there may be some
exceptional circumstances where Australia has obligations for persons outside
its territory, it states that 'the Government's position is that Australia does
not exercise the degree of control necessary in regional processing countries
to enliven Australia's international obligations',[29]
which would include the right to health.
1.15
However, the 'power' or 'effective control' test in international law is
essentially one of sufficient control. Therefore, whether Australia is
exercising sufficient control and authority to amount to 'effective control' is
a question of fact and degree in the particular circumstances. The committee
has previously noted that Australia's involvement in the arrangements, upkeep
and provision of services to persons transferred from Australia to regional processing
countries is significant. In 2013 the committee concluded that this evidence
demonstrated that Australia could be viewed as exercising 'effective control'
of the arrangements relating to the treatment of persons transferred to Manus
Island or Nauru.[30] The UN Committee Against Torture has also found that those held in regional
processing countries are under the 'effective control' of Australia as 'they
were transferred by the State party to centres run with its financial aid and
with the involvement of private contractors of its choice'.[31] The UN Human Rights
Committee has also considered that 'the significant levels of control and
influence exercised by [Australia] over the operation of the offshore regional
processing centres, including over their establishment, funding and service
provided therein, amount to such effective control.'[32] The UN Special Rapporteur on the human rights of migrants has further stated
that '[t]he Government of Australia is ultimately accountable for any human
rights violations that occur in the regional processing centres based in Nauru
and Papua New Guinea.'[33] Noting that Australia has been held to be exercising effective control, it
follows that as a matter of international law Australia also owes human rights
obligations to those transferred to, and held in, regional processing
countries, including in relation to the right to health.
1.16
In relation to the proposed repeal of the medical transfer provisions, the
statement of compatibility addresses the right to health in relation to those
persons currently present in Australia. It states that persons already
transferred to Australia for a temporary purpose will continue to receive
medical care in Australian medical facilities.[34] In relation to the right to health of those present in a regional processing
country, the statement of compatibility explains:
The Bill will not affect the existing provisions for the
temporary transfer of transitory persons for medical treatment in a third
country. Section 198B provides a standing authority for individuals in need of
medical care not available in the regional processing country to be brought to
a third county, including Australia, for medical treatment.[35]
1.17
However, the committee is concerned that the repeal of the medical
transfer provisions may constitute a backward step, that is, a retrogressive
measure with respect to the level of attainment of right to health including
access to health care. While the statement of compatibility points to the
ongoing availability of section 198B of the Migration Act to allow for medical
transfers, there is a serious concern that section 198B is likely to provide a
lower level of attainment of the right to health and access to health care than
the medical transfer provisions which are proposed to be repealed.[36] This is because the use of section 198B to bring a person requiring treatment
to a third country including Australia is discretionary and may or may not be
exercised. Further, it could potentially be used to transfer a person requiring
medical attention to a third country that has a lower standard of health care
than Australia.[37] Retrogressive measures, as a type of limitation, may be permissible under
international human rights law provided that they address a legitimate
objective and are rationally connected and proportionate to achieve that
objective. The statement of compatibility did not address this issue and
provided no justification as to whether any retrogressive measure is
permissible. It also does not provide any evidence or reasoning as to the adequacy
of any remaining arrangements under section 198B. As such, further information
is required in order for the committee to complete its assessment of the human
rights compatibility of the measure.
1.18
The committee has previously raised concerns about the adequacy
of access to health care and the right to health for those held under regional
processing arrangements.
1.19
The committee seeks the minister's advice as to the compatibility
of the measure with the right to health,[38] including:
- to what extent the repeal of the medical transfer provisions will
restrict access to health care for those held on Nauru and Manus Island; and
- the adequacy and effectiveness of the remaining discretionary
transfer provisions under section 198B of the Migration Act 1958 in protecting
the right to health.
Advice only[39]
1.20
The committee reiterates its views as set out in its previous reports on
the following bills. These bills have been reintroduced in relevantly
substantially similar terms to those previously commented on:
- Australian Passports Amendment (Identity-matching Services) Bill
2019
Report 3 of 2018, pp. 41-51; Report
5 of 2018, pp. 109-143.
- Counter-Terrorism Legislation Amendment (2019 Measures No. 1)
Bill 2019[40]
Report 2 of 2019, pp. 27-37.
- Identity-matching Services Bill 2019
Report 3 of 2018, pp. 41-51; Report 5 of 2018,
pp. 109-143.
1.21
The committee notes that the following private members' and senators'
bills appear to engage and may limit human rights. Should any of these bills
proceed to further stages of debate, the committee may request further
information from the legislation proponent as to the human rights compatibility
of the bill:
- Aged Care Quality and Safety Commission Amendment (Worker
Screening Database) Bill 2019
- Human Rights (Parliamentary Scrutiny) Amendment (Australian
Freedoms) Bill 2019
- Human Services Amendment (Photographic Identification and Fraud
Prevention) Bill 2019
- Ministers of State (Checks for Security Purposes) Bill 2019
1.22
Further, the committee draws the following bills and legislative instrument
to the attention of the relevant minister on an advice only basis. The
committee does not require a response to these comments.
Appropriation Bill (No.
1) 2019-2020
Appropriation Bill (No. 2) 2019-2020
Appropriation (Parliamentary Departments) Bill (No. 1) 2019-2020[41]
Purpose |
Seeks to appropriate money
from the Consolidated Revenue for services |
Portfolio |
Finance |
Introduced |
House of Representatives, 14
February 2019 |
Rights |
Multiple rights; economic,
social and cultural; civil and political; equality and non-discrimination |
Status |
Advice only |
Background
1.23
The committee has considered the human rights implications of
appropriations bills in a number of previous reports,[42] and such bills have been the subject of correspondence and meetings with the
Department of Finance.[43] In its Report 2 of 2019 the committee continued to request that
statements of compatibility for future appropriations bills contain an
assessment of human rights compatibility which met the standards outlined in
the committee's Guidance Note 1. It recommended that departmental
officials and the committee secretariat on behalf of the committee continue to
liaise regarding workable approaches to statements of compatibility for
appropriations bills.[44]
1.24
On 25 July 2019 the committee received correspondence from the
Department of Finance regarding statements of compatibility for appropriations
bills. This correspondence is discussed below and is available in full on the
committee's website.[45]
Appropriation bills: engagement, promotion and limitation of human rights
1.25
The committee has previously noted that proposed government expenditure
to give effect to particular policies may engage and limit and/or promote a range
of human rights. This includes rights under the International Covenant on Civil
and Political Rights (ICCPR) and the International Covenant on Economic, Social
and Cultural Rights (ICESCR).[46]
1.26
The committee has previously noted that:
the allocation of funds via appropriations bills is
susceptible to a human rights assessment that is directed at broader questions
of compatibility—namely, their impact on progressive realisation obligations
and on vulnerable minorities or specific groups. In particular, the committee
considers there may be specific appropriations bills or specific appropriations
where there is an evident and substantial link to the carrying out of a policy
or program under legislation that gives rise to human rights concerns.[47]
1.27
Under international human rights law, Australia has obligations to
respect, protect and fulfil human rights. These include specific obligations to progressively realise economic, social and cultural rights using the maximum
of resources available;[48] and a corresponding duty to refrain from taking retrogressive measures,
or backwards steps, in relation to the realisation of these rights. ESC rights
may be particularly affected by appropriations bills. Accordingly, any
reduction in allocated government funding for measures which realise economic,
social and cultural rights, such as specific health and education services, may
be considered as retrogressive in respect of the attainment of such rights and,
accordingly, must be justified for the purposes of international human rights
law.
Statements of compatibility for
appropriations bills
1.28
The current bills are accompanied by brief statements of compatibility
which note that the High Court has stated that, beyond authorising the
withdrawal of money for broadly identified purposes, appropriations Acts do not
or do not ordinarily 'confer authority to engage in executive action.' The
statements of compatibility state that, in particular, appropriations Acts either
do not, or do not ordinarily, 'confer legal authority to spend'.[49] The statements of compatibility conclude that, as the legal effect of
appropriations Acts are limited in this way, the bills are not seen as engaging,
or otherwise affecting, human rights.[50] The statements of compatibility also state that detailed information on the
relevant appropriations are contained in the portfolio Budget statements.[51]
1.29
However, it has been the committee's longstanding view that the cited
view of the High Court, that appropriations Acts do not create rights or duties
as a matter of Australian law, does not address the fact that appropriations
may nevertheless engage human rights for the purposes of international law, as reduced
appropriations for particular areas may be regarded as retrogressive, or as
limiting rights. The appropriation of funds also facilitates the taking of
actions which may affect both the progressive realisation of, and the failure
to fulfil, Australia's obligations under the treaties listed in the Human
Rights (Parliamentary Scrutiny) Act 2011. That is, appropriation bills
may have an impact on the implementation of human rights obligations and
potential violations.
1.30
The committee has accordingly previously expressed concerns that the
statements of compatibility for appropriations bills do not meet the standards
outlined in the committee's Guidance Note 1 and the requirement that a
statement of compatibility contain an assessment of the measures.[52] As previously stated, while such bills present some difficulties for human
rights assessments because they generally include high-level appropriations for
a wide range of outcomes and activities across many portfolios, the allocation
of funds via appropriations bills is susceptible to a human rights assessment
directed at questions of compatibility.[53]
1.31
The committee has previously recommended that the statement of
compatibility contain an assessment of:
- overall trends in the progressive realisation of economic, social
and cultural rights (including any retrogressive trends or measures);
- the impact of budget measures (such as spending or reduction in
spending) on vulnerable groups (women, Aboriginal and Torres Strait Islander
Peoples, persons with disabilities and children);[54] and
- key individual measures which engage human rights including a
brief assessment of their human rights compatibility.
1.32
In relation to overall trends and Australia's obligations to
progressively realise economic, social and cultural rights, the committee
recommended that relevant questions to guide an assessment could include:
- do funding trends indicate the progressive realisation of human
rights using the maximum of resources available (such as the right to health,
education, housing or social security)? Is there an increase in funding over
time in real terms?
- are there any trends that increase expenditure in such a way that
would benefit vulnerable groups (see further below)?
- are there are any trends towards a reduction in the allocation of
funding that may impact on the realisation of human rights (such as the right
to health, education, housing or social security)?
- if so, is this reduction a backward step, that is, a
retrogressive trend, in the realisation of such human rights, or is there
another explanation?
-
if this reduction is a backward step, is the retrogressive trend
permissible under international human rights law?
1.33
In relation to the impact of spending or reduction in spending on vulnerable
groups, the committee recommended that some relevant considerations may
include:
- are there any specific budget measures that may disproportionately
impact on particular groups (either directly or indirectly)?
- are there any budget measures or trends in spending over time
that seek to fulfil the right to equality and non-discrimination for particular
groups? [55]
1.34
As part of its project to improve statements of compatibility, the
committee has also previously provided additional resources to the Department
of Finance to assist it in preparing statements of compatibility for
appropriations bills including relevant examples.[56]
Correspondence from the Department
of Finance
1.35
In relation to the current appropriations bills, the Department of
Finance provided an explanation to as to why the Department would not be
substantially changing its approach to statements of compatibility for
appropriations bills:
Since our most recent discussions, we have reviewed the
content of the statements of compatibility included in the explanatory
memoranda accompanying the annual Appropriation Bills and have sought legal
advice. Through this process we have affirmed our view of the limited legal
operation of the annual Appropriation Acts. In this respect, the annual
Appropriation Acts only perform the function of authorising the withdrawal of
money from the Consolidated Revenue Fund and of identifying the purposes for
which that money may be withdrawn.
Accordingly, we hold the view that the annual Appropriation
Acts do not confer any legal authority to spend. We consider that this
authority must be derived from either the Constitution or from other
legislation (often a mechanism is provided through s 32B of the Financial
Framework (Supplementary Powers) Act 1997). The statements of compatibility
for the annual Appropriation Bills have been drafted accordingly.
1.36
However, consistent with the committee's longstanding view, as noted
above at paragraph [1.29], this technical response does not fully address the
fact that, as a matter of international law, authorising appropriation of funds
is part of a process that facilitates the taking of actions that may affect human
rights. As such, the statements of compatibility for appropriations bills
continue to fall short of the committee's expectations as set out in its Guidance
Note 1.
1.37
Where proposed budget measures require further legislation in order to
be given effect, the committee is required to examine the human rights
compatibility of such legislation individually, as well as any information
provided in the statement of compatibility accompanying such legislation. This
provides some human rights scrutiny of budget measures. In relation to some
legislation in this category, the Department of Finance's response states that
they are 'currently working to ensure that legislative instruments that do
authorise expenditure, better meet the requirements of the Human Rights
(Parliamentary Scrutiny) Act 2011.'[57] It is welcome that additional information will be provided in relation to these
types of instruments. However, the absence of an assessment of issues of human
rights compatibility at the appropriations level may still create challenges,
including by making it more difficult to assess where Australia is doing well with respect to realising its human rights obligations. This is because it may
be difficult to assess questions of whether Australia is progressively
realising economic, social and cultural rights to its maximum available
resources or whether a measure is a retrogressive measure without
the benefit of an appropriations level assessment. For example, a retrogressive
measure in an individual bill may not, in fact, be retrogressive when
understood within the budgetary context as a whole.
1.38
As with previous appropriations bills, the statements of
compatibility for the current bills provide no assessment of their
compatibility with human rights, on the basis that they do not engage or
otherwise impact on human rights.
1.39
As the committee has previously noted, the appropriation of funds
may engage and potentially limit or promote a range of human rights that fall
under the committee's mandate. In this respect, the committee's longstanding
view is that such bills are capable of a human rights assessment and the
statement of compatibility should provide this assessment.
1.40
Accordingly, the committee continues to recommend that statements
of compatibility for future appropriations bills should contain an assessment
of human rights compatibility which meets the standards outlined in the
committee's Guidance Note 1 including with reference to the matters
outlined at paragraph [1.31].
1.41
The committee draws this matter to the attention of the minister
and the Parliament.
Crimes Legislation Amendment (Police Powers at Airports) Bill 2019[58]
Purpose |
Seeks
to amend the Crimes Act 1914 to introduce new powers at major
airports, including the power for constables and protective service officers
to give directions to persons to provide identification, move-on, or stop |
Portfolio |
Home Affairs |
Introduced |
House of Representatives, 4
July 2019 |
Rights |
Privacy; freedom of
movement; liberty; equality and non-discrimination; freedom of expression;
freedom of assembly |
Previous reports |
Report 11 of 2018 and Report
12 of 2018 |
Status |
Advice only |
Background
1.42
The committee initially reported on the Crimes Legislation Amendment
(Police Powers at Airports) Bill 2018 (2018 bill) in its Report 11 of 2018 and concluded its examination of the bill in its Report 12 of 2018 (previous
reports).[59] The Crimes Legislation Amendment (Police Powers at Airports) Bill 2019 (2019
bill) reintroduces the 2018 bill with amendments.
Increased police powers at airports
1.43
The 2019 bill seeks to amend the Crimes Act 1914 to expand the
powers of police, and introduce new powers for protective service officers
(PSO), to require identity information, give move-on directions and give stop
and directions powers to persons at major airports.[60] Such powers would enable constables and PSOs to direct persons at airports to
produce identity documents, vacate the airport or direct them not to take a
flight.
1.44
The proposed powers can be exercised on two main grounds:
- where the constable or PSO suspects on reasonable grounds that
the person has committed, is committing, or will commit an offence,[61] or it is necessary to prevent or disrupt criminal activity; or
- where the constable or PSO considers on reasonable grounds that
it is necessary to safeguard the 'public order and safe operation' of a major
airport.
1.45
Proposed section 3UN gives a definition of 'public order and safe
operation' as meaning the public order, the safety of persons and the safe
operation of the airport and all flights to and from the airport. It also
provides:
However, the exercise of a person's right to engage lawfully
in advocacy, protest, dissent or industrial action is not, by itself, to be
regarded as prejudicial to the public order and safe operation of a major
airport.[62]
1.46
In contrast, the 2018 bill provided that the same proposed powers could
be exercised when a person was suspected of committing an offence or to prevent
criminal activity, but also where it was considered on reasonable grounds
necessary to safeguard 'aviation security'. 'Aviation security' was defined
broadly as including the 'good order and safe operation' of a major airport and
flights to and from the airport.[63] 'Good order' was not defined in the 2018 bill.
1.47
In its previous reports the committee noted that the breadth of
the definition of 'aviation security', which included the 'good order' of a
major airport, raised concerns that the power would apply to a broader range of
conduct than was strictly necessary to fulfil the legitimate objectives of the
2018 bill. As such, it concluded that there was a risk that the powers may
operate in a way that may not be a proportionate limitation on the rights to
privacy, freedom of movement, freedom of expression and freedom of assembly.
The new narrower definition of 'public order and safe operation' in the 2019
bill appears to address these human rights concerns.[64] However, it is noted that the proposed powers to require identity information
and issue move on directions remain serious from the perspective of human
rights. If the bill is passed, continued monitoring of these powers, in
practice, would assist to ensure that they are only exercised in a way that is
compatible with human rights.
1.48
The committee welcomes the changes to the Crimes Legislation Amendment
(Police Powers at Airports) Bill 2019 which provide that safeguarding the
'public order and safe operation' of a major airport does not apply, by itself,
to persons exercising their right to lawfully engage in advocacy, protest,
dissent or industrial action. The committee considers these changes adequately
address the concerns raised by the committee in its previous reports in
relation to the scope of the powers to issue identity or move on directions.
However, noting the potentially serious consequences of issuing such
directions, the committee recommends that, should the bill be passed, the
government monitor the use of the powers to ensure that, in practice, their use
is compatible with human rights.
Social Security (Administration) (Trial of Cashless Welfare Arrangements)
(Declinable Transactions and Welfare Restricted Bank Account) Determination 2019
[F2019L00911][65]
Purpose |
Sets out the kind of bank
account to be maintained by a trial participant, or voluntary participant, of
cashless welfare arrangements and the kinds of businesses in relation to
which transactions involving money in such an account may be declined by a
financial institution. |
Portfolio |
Social Services |
Authorising legislation |
Social Security
(Administration) Act 1999 |
Last day to disallow |
15 sitting days after
tabling (tabled in the Senate and the House of Representatives on 2 July
2019). Notice of motion to disallow must be given by 16 September 2019[66] |
Rights |
Social security, private
life, equality and non-discrimination |
Status |
Advice only |
Cashless welfare trial
1.49
The Social Security (Administration) (Trial of Cashless Welfare
Arrangements) (Declinable Transactions and Welfare Restricted Bank Account)
Determination 2019 (the instrument) provides for the kind of bank accounts to
be maintained by persons subject to the cashless welfare trial and sets out the
limitations to be placed on such bank accounts in order to regulate spending of
the restricted component.[67] In doing so, the instrument supports the operation of the cashless welfare
trial to 30 June 2020.[68]
1.50
The cashless welfare trial, which is being undertaken only in certain
geographical areas,[69] quarantines 80 per cent of an individual's eligible welfare payments to a debit
card linked to a 'welfare restricted bank account'.[70] The intention is that 80 per cent of a participant's welfare payments cannot be
used to purchase alcoholic beverages, conduct gambling, or obtain cash-like
products (such as gift cards) which could be used to do so.
1.51
The committee has previously considered the trial of cashless welfare
arrangements and has observed that the arrangements engage and limit a number
of human rights.[71]
Rights to equality and
non-discrimination, social security and private life
1.52
As the committee has previously noted, by compulsorily quarantining the
welfare payments of particular individuals, and restricting their ability to
make decisions about spending their welfare payments at some businesses, the
cashless welfare trial engages and limits the rights to:
- equality and non-discrimination;
- social security; and
- private life.[72]
1.53
These rights are discussed in detail in the context of the income
management regime more broadly in the committee's 2016 Review of Stronger Futures measures.[73] These rights may be subject to
permissible limitations where those limitations pursue a legitimate objective,
and are rationally connected to (that is, effective to achieve) and
proportionate to that objective.
1.54
The statement of compatibility acknowledges that the instrument, in supporting
arrangements for the cashless debit card trial, engages the rights to social
security and privacy, and provides the same justification for the measures as
previously considered by the committee. In particular, the statement of
compatibility explains that the objectives of the cashless debit card are to
reduce the amount of some restrictable payments available to be spent on
alcohol, gambling and illegal drugs, to determine whether such a reduction
decreases violence or harm in the trial areas, and to encourage socially
responsible behaviour. It also states that the program does not detract from a
person's eligibility to receive welfare, or reduce the total amount of their
entitlement, and that the limitation on the right to respect for private life
is directly related to efforts to reduce high levels of social harm in the
targeted areas.[74]
1.55
The statement of compatibility does not address the compatibility of
this measure with the right to equality and non-discrimination.[75] This is despite the committee's previous findings that such a measure, in this
context, engages and limits the right to equality and non-discrimination, and
may in fact be incompatible with the enjoyment of this right.[76]
1.56
The committee has
previously accepted that the cashless welfare trial measures may pursue a
legitimate objective,[77] however, it has raised concerns as
to whether the measures are rationally connected to, and proportionate to this
objective.[78] The committee has found that the
measures associated with the cashless welfare trial may not be compatible with
the rights to private life, social security, and to equality and
non-discrimination.[79] This instrument, in supporting the
arrangements for the cashless welfare trial raises similar human rights
concerns.
1.57
As this instrument supports arrangements for the cashless welfare
trial, the committee reiterates its previous human rights concerns regarding this
trial, in particular noting the effect of the cashless welfare measures on the
rights to equality and non-discrimination, social security and private life. The
committee draws its human rights scrutiny concerns to the attention of the minister
and the Parliament.
Bills and instruments with no
committee comment[80]
1.58
The committee has no comment in relation to the following bills which
were introduced into the Parliament, or restored to the notice paper, between
29 July and 1 August 2019, or which were previously deferred. This is on the
basis that the bills do not engage, or only marginally engage, human rights;
promote human rights; and/or permissibly limit human rights:[81]
- Australian Broadcasting Corporation Amendment (Rural and Regional
Measures) Bill 2019
- Combatting Child Sexual Exploitation Legislation Amendment Bill
2019[82]
- Constitution Alteration (Freedom of Expression and Freedom of the
Press) 2019 [No. 2]
- Constitution Alteration (Water Resources) 2019 [No. 2]
- Family Assistance Legislation Amendment (Extend Family Assistance
to ABSTUDY Secondary School Boarding Students Aged 16 and Over) Bill 2019
- Inspector-General of Live Animal Exports Bill 2019
- Landholders’ Right to Refuse (Gas and Coal) Bill 2015
- New Skilled Regional Visas (Consequential Amendments) Bill 2019
- Social Security (Administration) Amendment (Cashless Welfare)
Bill 2019[83]
- Treasury Laws Amendment (Ending Grandfathered Conflicted
Remuneration) Bill 2019
- Veterans’ Affairs Legislation Amendment (Partner Service Pension
and Other Measures) Bill 2019
1.59
The committee has examined the legislative instruments registered on the
Federal Register of Legislation between 5 June 2019 and 1 August 2019.[84] The committee has reported on one legislative instrument from this period
earlier in this chapter. The committee has determined not to comment on the
remaining instruments from this period on the basis that the instruments do not
engage, or only marginally engage, human rights; promote human rights; and/or
permissibly limit human rights.
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