Chapter 1
New and continuing matters
1.1
This report provides the Parliamentary Joint Committee on Human Rights'
view on the compatibility with human rights of bills introduced into the
Parliament from 12 to 22 October 2015, legislative instruments received from 18
September to 1 October 2015, and legislation previously deferred by the
committee.
1.2
The report also includes the committee's consideration of responses
arising from previous reports.
1.3
The committee generally takes an exceptions based approach to its
examination of legislation. The committee therefore comments on legislation
where it considers the legislation raises human rights concerns, having regard
to the information provided by the legislation proponent in the explanatory
memorandum (EM) and statement of compatibility.
1.4
In such cases, the committee usually seeks further information from the
proponent of the legislation. In other cases, the committee may draw matters to
the attention of the relevant legislation proponent on an advice-only basis.
Such matters do not generally require a formal response from the legislation
proponent.
1.5
This chapter includes the committee's examination of new legislation,
and continuing matters in relation to which the committee has received a
response to matters raised in previous reports.
Bills not raising human rights concerns
1.6
The committee has examined the following bills and concluded that they
do not raise human rights concerns. The following categorisation is indicative
of the committee's consideration of these bills.
1.7
The committee considers that the following bills do not require
additional comment as they either do not engage human rights or engage rights
(but do not promote or limit rights):
-
Australian Crime Commission Amendment (Criminology Research) Bill
2015;
-
Defence Legislation Amendment (First Principles) Bill 2015;
-
Fair Work Amendment (Prohibiting Discrimination Based On
Location) Bill 2015; and
-
High Speed Rail Planning Authority Bill 2015.
1.8
The committee considers that the following bills do not require
additional comment as they promote human rights or contain justifiable
limitations on human rights (and may include bills that contain both
justifiable limitations on rights and promotion of human rights):
-
Fair Work Amendment (Recovery of Unpaid Amounts for Franchisee
Employees) Bill 2015;
-
Higher Education Legislation Amendment (Miscellaneous Measures)
Bill 2015;
-
Higher Education Support Amendment (VET FEE-HELP Reform) Bill
2015;
-
Migration Amendment (Mandatory Reporting) Bill 2015; and
-
Tax and Superannuation Laws Amendment (2015 Measures No. 5) Bill
2015.
Instruments not raising human rights concerns
1.9
The committee has examined the legislative instruments received in the
relevant period, as listed in the Journals of the Senate.[1]
Instruments raising human rights concerns are identified in this chapter.
1.10
The committee has concluded that the remaining instruments do not raise
human rights concerns, either because they do not engage human rights, they
contain only justifiable (or marginal) limitations on human rights or because
they promote human rights and do not require additional comment.
Deferred bills and instruments
1.11
The committee has deferred its consideration of the following
instruments:
-
Charter of the United Nations (Sanctions—Iraq) Amendment
Regulation 2015 [F2015L01464];
-
Charter of the United Nations (Sanctions—Syria) Regulation 2015 [F2015L01463];
and
-
Military Superannuation and Benefits (Eligible Members)
Declaration 2015 [F2015L01527].
1.12
The committee also defers the Charter of the United Nations (UN Sanction
Enforcement Law) Amendment Declaration 2015 (No. 1) [F2015L01422] pending a
response from the Minister for Foreign Affairs regarding a number of related
instruments.[2]
1.13
The committee continues to defer its consideration of the Migration
Amendment (Protection and Other Measures) Regulation 2015 [F2015L00542]
(deferred 23 June 2015).
1.14
As previously noted, the committee continues to defer one bill and a
number of instruments in connection with the committee's current review of the Stronger
Futures in the Northern Territory Act 2012 and related legislation.[3]
Response required
1.15
The committee seeks a response or further information from the relevant minister
or legislation proponent with respect to the following bills and instruments.
Crimes Legislation Amendment (Harming Australians) Bill 2015
Portfolio and sponsor: Attorney-General
and Senator Xenophon
Introduced: Senate, 15 October 2015
Purpose
1.16
The Crimes Legislation Amendment (Harming Australians) Bill 2015 (the
bill) seeks to amend the Criminal Code Act 1995 (the Criminal Code) to extend
provisions that make it an offence to, outside of Australia, murder, commit
manslaughter or intentionally or recklessly cause serious harm to an Australian
citizen or resident to conduct that occurred at any time before 1 October 2002.
1.17
Measures raising human rights concerns or issues are set out below.
Background
1.18
The Criminal Code Amendment (Offences Against Australians) Act 2002 (the
2002 Act) inserted a new Division 104 (Harming Australians) into the Criminal Code. This established
new offences of murder, manslaughter, and the intentional or reckless
infliction of serious harm on Australian citizens or residents abroad.
The 2002 Act commenced operation on 14 November 2002 but operated
retrospectively, with effect from 1 October 2002.
1.19
Senator Xenophon then introduced the Criminal Code Amendment (Harming
Australians) Bill 2013 (the previous bill) on 11 December 2013, which was
substantially similar to the current bill, seeking to extend the retrospective
application of the above offences. The committee considered the previous bill
in its Second Report of the 44th Parliament,[4]
and sought further information from the legislation proponent as to whether the
bill was compatible with the prohibition against retrospective criminal laws.
The committee also invited comment from the Attorney-General as the minister
responsible for the Criminal Code, and considered this response in its Fourth
Report of the 44th Parliament.[5]
1.20
The current bill includes a number of amendments to the previous bill,
including amended penalty provisions, extension of absolute liability to the
new offences, and safeguards relating to double jeopardy. It also provides that
in order for an offence to have occurred under the new laws, the conduct
constituting the offence must have also constituted an offence against the law
of the country in which it occurred, at the time that it occurred.
Extended application of absolute liability
1.21
The bill proposes to amend subsections 115.1(2) and
115.2(2) of the Criminal Code to apply absolute liability to the new elements
of the offence provisions, concerning the murder or manslaughter of an
Australian citizen or resident of Australia in a foreign country before 1
October 2002. The effect of applying absolute liability to an element of an
offence means that no fault element needs to be proved as to whether, the
victim was an Australian citizen or resident or whether, at the time the
conduct was engaged in, the conduct constituted an offence against a law of a
foreign country. In addition, the defence of mistake of fact is not available
to a defendant.
1.22
The committee considers that as the existing application of absolute
liability has been expanded and applied to a new element of the offence, the
bill engages and limits the right to a fair trial (presumption of innocence).
Right to a fair trial
(presumption of innocence)
1.23
The right to a fair trial and fair hearing is protected by article 14 of
the International Covenant on Civil and Political Rights (ICCPR). Article 14(2)
of the ICCPR protects the right to be presumed innocent until proven guilty
according to law. Generally, consistency with the presumption of innocence
requires the prosecution to prove each element of a criminal offence beyond
reasonable doubt.
1.24
Absolute liability offences engage the presumption of innocence because
they allow for the imposition of criminal liability without the need to prove
fault. However, absolute liability offences will not necessarily be
inconsistent with the presumption of innocence provided that they are within
reasonable limits which take into account the importance of the objective being
sought and maintain the defendant's right to a defence. In other words, such
offences must be reasonable, necessary and proportionate to that aim.
Compatibility of the measure with
the right to a fair trial (presumption of innocence)
1.25
As set out in the committee's Guidance Note 2,[6]
absolute liability offences engage the presumption of innocence as they allow
for the imposition of criminal liability without the need to prove fault.
1.26
The statement of compatibility for the bill does not acknowledge that
the presumption of innocence is engaged by these measures, and as such has not
set out to explain how extending the application of absolute liability is a
justifiable limit on the right to a fair trial.
1.27
It is the committee's usual expectation that, where absolute liability
criminal offences or elements are introduced or expanded, legislation
proponents provide a human rights assessment in the statement of compatibility,
in accordance with the committee's Guidance Note 1.[7]
1.28
The committee's assessment of the extended application of
absolute liability against article 14 of the International Covenant on Civil
and Political Rights (right to a fair trial (presumption of innocence)) raises
questions as to whether the measure is justifiable.
1.29
As set out above, the extended application of absolute liability
engages and limits the right to a fair trial (presumption of innocence). The
statement of compatibility does not justify that limitation for the purposes of
international human rights law. The committee therefore seeks the advice of the
legislation proponents as to whether the measure is compatible with the right
to a fair hearing, and particularly:
-
whether the proposed changes are aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Retrospective application of culpability for offences committed overseas
1.30
The bill extends retrospectively the application of subsections 115.1
and 115.2 of the Criminal Code relating to the murder or manslaughter of
Australians overseas. In order for an act to constitute an offence under these
amendments, the act must have been an offence against the law in the country
where it was committed at the time that it was committed.
1.31
The bill also amends the penalty provisions that would apply to the
above offences which occurred before 1 October 2002. The new provisions provide
for the maximum term of imprisonment to be no more than what the maximum would
be under the law of the foreign country. For countries where a non-custodial
penalty would apply to the offence, the Australian maximum penalty would apply.
1.32
The committee considers that the retrospective application of
culpability for offences committed overseas in relation to the nature of the
offence and the relevant penalty provisions engages and may limit the prohibition
against retrospective criminal laws.
Prohibition
against retrospective criminal laws (nature of the offence)
1.33
Article 15 of the ICCPR prohibits retrospective criminal laws. This
prohibition supports long-recognised criminal law principles that there can be
no crime or punishment without law. This is an absolute right and it can never
be justifiably limited. Laws which set out offences need to be sufficiently
clear to ensure people know what conduct is prohibited.
1.34
Article 15 requires that laws must not impose criminal liability for
acts that were not criminal offences at the time they were committed. Laws must
not impose greater punishments than those which would have been available at
the time the acts were done. Further, if, after an offence is committed, a lighter
penalty is introduced into the law, the lighter penalty should apply to the
offender. This includes a right, where an offence is decriminalised, to the
retrospective decriminalisation (if the person is yet to be penalised).
1.35
The prohibition against retrospective criminal laws does not apply to
conduct which, at the time it was committed, was recognised under international
law as being criminal even if it was not a crime under Australian law. This
relates to crimes such as genocide, war crimes and crimes against humanity.
Compatibility
of the measure with the prohibition against retrospective criminal laws (nature
of the offence)
1.36
The statement of compatibility for the bill acknowledges that the
prohibition against retrospective criminal laws is engaged. It states that:
'While retrospective offences are generally not appropriate,
retrospective application is justifiable in these circumstances because the
conduct which is being criminalised – murder and manslaughter – is conduct
which is universally known to be conduct which is criminal in nature.'[8]
1.37
However, the committee has stated in its previous analysis that while
murder, manslaughter and the infliction of serious harm are crimes under the
ordinary criminal law of most, if not all, countries, they are not the sort of
international crimes understood as falling within the exception in article
15(2) (which applies to breaches of international humanitarian law, such as
genocide, war crimes or crimes against humanity).[9]
To constitute an exemption from the prohibition against retrospective criminal
laws, the conduct must be recognised by the general principles of law
recognised by the international community as being criminal, as discussed at [1.35]
above.
1.38
Accordingly, the test for compatibility with article 15 is whether the
conduct was criminal under national law at the time it was committed. In the
situation envisaged by the bill, the conduct in question occurs in a third
country and so it must be that the conduct is already criminal under the
national law in that third country. In this regard, the bill provides that the conduct
constituting the offence must also have constituted an offence against the law
of the foreign country in which the conduct occurred. However, the bill does
not require that the conduct was an offence of manslaughter or murder (or its
equivalents) in the third country – merely that it is 'an offence'. While it
may be that in many cases the construction of the offence provision in the
third country is equivalent to that under Australian law, there are also likely
to be differences between countries as to what constitutes the offence of
murder compared to manslaughter and the specific fault elements that apply to
each offence. There are also likely to be differences between countries as to
the liability of an individual where a person is killed as part of joint
criminal enterprise such as burglary.
1.39
The rationale behind article 15 is that it would be unfair for someone
to be found guilty of a criminal act if it was not criminal at the time they
committed the act. The UN Human Rights Council has suggested that article 15
may be violated where a person is convicted of an offence that did not exist at
the time of the alleged conduct even where the law in force at the time
criminalised that conduct under other relevant offences.[10]
Accordingly, it would likely be breach of article 15 if a person who committed
an offence that would be subject to the charge of burglary in their home
country to be subsequently, as a result of this bill, subject to the charge of
murder in Australia.
1.40
The statement of compatibility does not deal directly with the
possibility that individuals could be charged with a murder or manslaughter
offence which is not equivalent to the offence that they allegedly committed in
the foreign country.
1.41
The committee's assessment of the retrospective
application of culpability for offences committed overseas against article 15
of the International Covenant on Civil and Political Rights (prohibition
against retrospective criminal laws in relation to penalty provisions) raises
questions as to whether the measure is compatible with human rights law.
1.42
The committee therefore seeks the advice of the legislation
proponents as to how, in light of the committee's concerns raised above, the
retrospective application of culpability could be compatible with the absolute
prohibition against retrospective criminal laws.
Prohibition against retrospective
criminal laws (penalty provisions)
1.43
The prohibition against retrospective criminal laws is contained within
article 15 of the ICCPR. More information is set out above at paragraphs [1.33]
to [1.35].
Compatibility of the measure with
the prohibition against retrospective criminal laws (penalty provisions)
1.44
Items 5 and 12 of the bill seek to amend the penalties that would apply to
persons convicted of the new offences (relating to murder and manslaughter
respectively). If the conduct occurred before 1 October 2002 and is punishable
in the country in which the conduct occurred by a term of imprisonment, the
maximum sentence that may be handed down by an Australian court may not exceed
the maximum imprisonment that would apply in the other country. However, if the
conduct is punishable in the other country by a non-custodial sentence, the
maximum penalty under the Criminal Code will apply.
1.45
As noted above at [1.34], article 15 of the ICCPR provides that laws
must not impose greater punishments than those which would have been available
at the time the acts were done. While the amendments in the bill do not seek to
impose a higher custodial penalty than that which would apply in the
country where the offence was committed, it is possible that where a
non-custodial sentence would be applicable to the offence in that foreign
country, an individual may receive a substantially more severe penalty under
the proposed new law than that which applied at the time the conduct was
committed.
1.46
The statement of compatibility for the bill acknowledges that the measure
engages retrospective criminal laws, and states:
Due to the difficulty of anticipating all possible
punishments which may be applied in foreign jurisdictions for offences of
murder and manslaughter, the Bill does not attempt to prescribe all possible
punishments. Where a foreign law would impose a non-custodial punishment,
particularly those that would not be consistent with other international human
rights obligations, such as the prohibition on torture or cruel, inhuman or
degrading treatment or punishment in Article 7 of the ICCPR, these punishments
will not be considered lower penalties for the purpose of these offences. As
such, the defendant will be liable to the same maximum penalty which would be
applicable to the offences if they had been committed on or after 1 October
2002.[11]
1.47
As such, while the statement of compatibility acknowledges other
non-custodial sentences may apply in other jurisdictions, it dismisses these as
not being considered as lower penalties. It goes on to state that:
'as not all possible punishments can be foreshadowed and
prescribed, this [the maximum imprisonment penalty] provides a mechanism to
ensure that it will be open to the court to impose a term of imprisonment
commensurate with the penalty applicable in the foreign jurisdiction.[12]
1.48
The statement of compatibility does not deal with the situation where a
person would, in the third country, be liable for a fine, to pay requisite
compensation, or community service, yet by the retrospective application of
this bill may be liable for a substantial custodial sentence under Australian
law. Article 15 of the ICCPR provides that laws must not impose greater
punishments than those which would have been available at the time the acts
were done, which is an absolute right that can never be justifiably limited.
1.49
The committee's assessment of the retrospective
application of culpability for offences committed overseas against article 15
of the International Covenant on Civil and Political Rights (prohibition
against retrospective criminal laws in relation to penalty provisions) raises
questions as to whether the measure is compatible with human rights law.
1.50
The committee therefore seeks the advice of the legislation
proponents as to how, in light of the committee's concerns raised above, the
imposition of higher penalties than previously existed could be compatible the
absolute prohibition against retrospective criminal laws.
Criminal Code Amendment (Private Sexual Material) Bill 2015
Sponsor: Tim Watts MP; Terri Butler
MP
Introduced: House
of Representatives, 12 October 2015
Purpose
1.51
The Criminal Code Amendment (Private Sexual Material) Bill 2015 (the
bill) seeks to amend the Criminal Code Act 1995 (Criminal Code) to
criminalise what is colloquially referred to as 'revenge porn'. Specifically,
the bill would introduce three new telecommunications offences that would make
it an offence to:
-
use a carriage service to, without consent, publish private
sexual material;
-
threaten to do so; or
-
possess, control, produce, supply or obtain private sexual
material for use through a carriage service.
1.52
Measures raising human rights concerns or issues are set out below.
Reversal of the burden of proof
1.53
Proposed section 474.24H of the bill provides a number of exceptions to
the proposed new offences introduced by the bill, including if the conduct was:
-
engaged in for the public benefit;
-
in relation to news, current affairs, information or a
documentary (and there was no intention to cause harm);
-
by a law enforcement officer, or an intelligence or security
officer, acting in the course of his or her duties; or
-
in the course of a assisting the Children's e-Safety Commissioner
or relating to content filtering technology.
1.54
These exceptions reverse the burden of proof, requiring the defendant to
bear an evidential burden if relying on these defences.
1.55
The committee considers that the reversal of the burden of proof engages
and limits the right to a fair trial (presumption of innocence).
Right to a fair trial (presumption
of innocence)
1.56
The right to a fair trial and fair hearing is protected by article 14 of
the ICCPR. Article 14(2) of the ICCPR protects the right to be presumed
innocent until proven guilty according to law. Generally, consistency with the
presumption of innocence requires the prosecution to prove each element of a
criminal offence beyond reasonable doubt
1.57
An offence provision which requires the defendant to carry an evidential
or legal burden of proof, commonly referred to as 'a reverse burden', with
regard to the existence of some fact engages and limits the presumption of
innocence. This is because a defendant's failure to discharge the burden of
proof may permit their conviction despite reasonable doubt as to their guilt.
1.58
Where a statutory exception, defence or excuse to an offence is provided
in proposed legislation, these defences or exceptions must be considered as
part of a contextual and substantive assessment of potential limitations on the
right to be presumed innocent in the context of an offence provision. Reverse
burden offences will be likely to be compatible with the presumption of
innocence where they are shown by legislation proponents to be reasonable,
necessary and proportionate in pursuit of a legitimate objective. Claims of
greater convenience or ease for the prosecution in proving a case will be
insufficient, in and of themselves, to justify a limitation on the defendant's
right to be presumed innocent.
Compatibility of the measure with
the right to a fair trial
1.59
The statement of compatibility for the bill does not acknowledge that
the right to a fair trial is engaged by these measures. The explanatory
memorandum to the bill also provides little justification for these measures,
other than asserting:
It will generally be much easier for a defendant, rather than
the prosecution, to produce evidence showing that the circumstances to which
the defences apply do in fact exist.[13]
1.60
As set out the committee's Guidance Note 2,[14]
reverse burden offences are likely to be compatible with the presumption of
innocence where they are shown by the legislation proponent to be reasonable,
necessary and proportionate in pursuit of a legitimate objective. Claims of
greater convenience or ease for the prosecution in proving a case will be
insufficient, in and of themselves, to justify a limitation on the defendant's
right to be presumed innocent.
1.61
It is the committee's usual expectation that, where a reverse burden offence
is introduced, legislation proponents provide a human rights assessment in the
statement of compatibility, in accordance with the committee's Guidance Note 1.[15]
1.62
The committee's assessment of the reversal of the burden of proof
against article 14 of the International Covenant on Civil and Political Rights
(right to a fair trial) raises questions as to whether the measure is
justifiable.
1.63
As set out above, the reversal of the burden of proof engages and
limits the right to a fair trial. The statement of compatibility does not
justify that limitation for the purposes of international human rights law. The
committee therefore seeks the advice of the legislation proponents as to:
-
whether the proposed exceptions are aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Health Insurance Amendment (Safety Net) Bill 2015
Portfolio: Health
Introduced: House of Representatives, 21 October 2015
Purpose
1.64
The Health Insurance Amendment (Safety Net) Bill 2015 (the bill) seeks
to amend the Health Insurance Act 1973 to introduce a new Medicare
safety net, replacing three existing safety nets.
1.65
The new Medicare safety net will continue to cover up to 80 per cent of
out‑of-pocket medical costs once an annual threshold is met, however, it
will introduce a limit on the amount and type of out-of-pocket costs that can
be included in the calculation for the annual safety net threshold.
1.66
Measures raising human rights concerns or issues are set out below.
Limitations on the amount of out-of-pocket health costs that can be claimed
1.67
There are currently three Medicare safety nets:
-
the Original Medicare Safety Net – which increases the Medicare
rebate payable for out-of-hospital Medicare services to 100 per cent of the scheduled
fee once an annual threshold of gap costs has been met;
-
the Greatest Permissible Gap (GPG) – which increases the Medicare
rebate for high cost out-of-hospital services so that the difference between
the MBS fee and the Medicare rebate is no more than $78.40; and
-
the Extended Medicare Safety Net (EMSN) – which provides a rebate
for out-of-pocket medical costs (for out-of-hospital care) so that Medicare
pays up to 80 per cent of further out-of-pocket costs once an annual threshold has
been met.
1.68
Together these three schemes reduce both the individual costs of high
cost out-of-hospital services for all Medicare recipients and provide increased
rebates to individuals and families who have high annual medical bills that
exceed certain thresholds.
1.69
The bill would replace these three safety nets with a new Medicare
safety net.
1.70
The proposed new Medicare safety net would have a lower annual threshold
for most people including concession card holders, singles and families.[16]
Those receiving FTB A will have to reach a slightly higher threshold than under
current arrangements.[17]
1.71
Currently, all out-of-pocket costs for out-of-hospital Medicare service
count towards the Medicare threshold and there are caps on benefits only for
certain items.
1.72
The bill would limit the out-of-pocket costs that can accumulate per
service to the threshold for all Medicare services and limit the amount of
safety net benefits that are payable per service for all Medicare services. This
will mean that some patients will incur out-of-pocket costs that are not
included in their costs for medical expenses for the purposes of accessing the
new Medicare safety net.
1.73
In addition, it would appear that the bill would remove the GPG which
would result in some people incurring larger out-of-pocket expenses for
individual high cost medical procedures.
1.74
The committee considers that the changes to Medicare engage and may
limit the right to social security and the right to health.
Right to social security
1.75
The right to social security is protected by article 9 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR). This
right 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.
1.76
Access to social security is required when a person has no other income
and has insufficient means to support themselves and their dependents.
Enjoyment of the right requires that sustainable social support schemes are:
-
available to people in need;
-
adequate to support an adequate standard of living and health care;
-
accessible (providing universal coverage without discrimination
and qualifying and withdrawal conditions that are lawful, reasonable,
proportionate and transparent; and
-
affordable (where contributions are required).
1.77
Under article 2(1) of the ICESCR, Australia has certain obligations in
relation to the right to social security. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps that
might affect the right;
-
the obligation to ensure the right is made available in a
non-discriminatory way; and
-
the obligation to take reasonable measures within its available
resources to progressively secure broader enjoyment of the right.
1.78
Specific situations which are recognised as engaging a person's right to
social security, include health care and sickness; old age; unemployment and
workplace injury; family and child support; paid maternity leave; and
disability support.
1.79
Under article 4 of the ICESCR, economic, social and cultural rights may
be subject only to such limitations as are determined by law and compatible
with the nature of those rights, and solely for the purpose of promoting the
general welfare in a democratic society. Such limitations must be proportionate
to the achievement of a legitimate objective, and must be the least restrictive
alternative where several types of limitations are available.
Right to health
1.80
The right to health is guaranteed by article 12(1) of the International
Covenant on Economic Social and Cultural Rights (ICESCR), and is fundamental to
the exercise of other human rights. The right to health is understood as the
right to enjoy the highest attainable standard of physical and mental health,
and to have access to adequate health care and live in conditions that promote
a healthy life (including, for example, safe and healthy working conditions;
access to safe drinking water; adequate sanitation; adequate supply of safe
food, nutrition and housing; healthy occupational and environmental conditions;
and access to health-related education and information).
1.81
Article 2(1) of the ICESCR imposes on Australia the obligations listed
above at paragraph [1.77] and article 4 of the ICESCR allows limitations on the
right to health in the manner set out above at paragraph [1.79].
Compatibility of the measure with
the right to social security and the right to health
1.82
The statement of compatibility for the bill acknowledges that the bill
engages the right to social security and the right to health. It explains that
the objective of the bill is 'to ensure that the safety net arrangements for
out-of-pocket costs for out-of-hospital Medicare services are financially
sustainable'.[18]
1.83
It also notes that the bill seeks to address issues raised by two
independent reviews which found that the existing safety net arrangements may
have led to some people experiencing higher out-of-pocket costs. This is
because there is evidence to suggest that the introduction of the EMSN led to
doctors increasing their fees.[19]
1.84
The committee considers that better targeting the safety net
arrangements and ensuring they are financially sustainable is a legitimate
objective for the purposes of international human rights law. The committee
considers that the measures are rationally connected, and likely to be
effective, to achieve this objective.
1.85
The statement of compatibility addresses whether the proposed changes
are proportionate to achieving this objective:
The Commonwealth will continue to provide an additional
rebate for out-of-hospital medicare services once the threshold has been
reached...
While the average benefit paid under the new medicare safety
net will reduce, the number of people that will receive a safety net benefit
will increase compared to the number of people who will receive a benefit under
the EMSN in 2015. It is anticipated that benefits under the new medicare safety
net will be more equitably distributed between socio-economically advantaged
and disadvantaged areas...
The new medicare safety net threshold for people who qualify
for a Commonwealth concession card is lower than under the EMSN. Therefore this
Bill protects the benefits of individuals that are financially disadvantaged.
Commonwealth concession cards are provided to people who meet a range of
criteria including qualifying for a Commonwealth Seniors Health Card, Pensioner
Concession Card, Low-income Health Care Card or Newstart Allowance.[20]
1.86
Under international human rights law, one of the considerations, in
determining whether a limitation on a right is proportionate, is considering
whether any affected groups are particularly vulnerable. Lowering the
thresholds for certain groups may result in more people being eligible for the
safety net. Importantly there is a lower threshold for concession card holders
(though noting that recipients of FTB A will have their threshold increased).
1.87
However, the changes to the limits on the medical expenses included in
the calculation of eligibility for the safety net threshold and limits on
safety net benefits apply to everyone. This will mean a person is likely to
incur more out-of-pocket expenses before the threshold is reached. This change
does not take into account whether the persons incurring the costs are
financially disadvantaged.
1.88
The statement of compatibility states that the bill will mean that the
benefits of the safety net will be more equitably distributed between
socio-economically advantaged and disadvantaged areas. However it does not
explain whether the bill will result in many financially disadvantaged people
being worse off as a result of the changes. If this is the case, it is also
unclear what safeguards there are to ensure that financially disadvantaged
people are not effectively barred from accessing appropriate out-of-hospital
healthcare due to a reduction in the benefits payable to them.
1.89
The committee also notes that it would appear that the bill would remove
the GPG, which could result in some people incurring larger individual
out-of-pocket expenses for high cost medical services. There is no information
in the statement of compatibility as to how financially disadvantaged
individuals, including concession card holders, will be supported to meet these
individual one-off costs.
1.90
The committee's assessment of the measures limiting the amount of
out-of-pocket health costs that can be claimed against articles 9 and 12
of the International Covenant on Economic, Social and Cultural Rights (right to
social security and right to health) raises questions as to whether the
measures are a justifiable limitation on those rights.
1.91
As set out above, the measures engage and limit the right to
social security and the right to health. The statement of compatibility does
not sufficiently justify that limitation for the purposes of international
human rights law. The committee therefore seeks the advice of the Minister for
Health as to whether the limitation is a reasonable and proportionate measure
for the achievement of the objective, in particular, whether financially
vulnerable patients are likely to be unreasonably affected by the changes and,
if so, what safeguards are in place to protect financially vulnerable patients.
Migration Amendment (Complementary Protection and Other Measures) Bill 2015
Portfolio: Immigration and Border
Protection
Introduced: House of Representatives, 14 October 2015
Purpose
1.92
The Migration Amendment (Complementary Protection and Other Measures)
Bill 2015 (the bill) seeks to amend the Migration Act 1958 (the
Migration Act) to:
-
amend the statutory complementary protection framework standards
for equivalency with the new statutory refugee framework, as inserted by Part 2
of Schedule 5 to the Migration and Maritime Powers Legislation Amendment
(Resolving the Asylum Legacy Caseload) Act 2014;
-
amend the reference to 'protection obligations' in subsection
36(3) to specify the source of the obligations;
-
amend the definition of 'country' in subsection 5H(1), which
outlines the meaning of 'refugee', to be the same country as the 'receiving
country' as applies in subsection 5(1) of the Migration Act;
-
align the statutory provisions relating to protection in another
country (third country protection) with the definition of 'well-founded fear of
persecution' in section 5J of the Migration Act;
-
amend subsection 36(2C), to remove duplication between paragraph 36(2C)(b)
and subsection 36(1C) in the Migration Act, which both operate to exclude an
applicant from the grant of a protection visa on character-related grounds;
-
amend subsection 336F(5), which authorises disclosure of
identifying information to foreign countries or entities, to include information
pertaining to unauthorised maritime arrivals who make claims for protection as
a refugee and fall within the circumstances of subsection 36(1C) of the
Migration Act;
-
amend subsection 502(1), which allows the Minister for
Immigration and Border Protection to personally make a decision that is not
reviewable by the Administrative Appeals Tribunal (AAT), to apply to persons
who have been refused the grant of a protection visa on complementary
protection grounds for reasons relating to the character of the person; and
-
amend subsection 503(1), which relates to the exclusion of
certain persons from Australia, to apply to persons who have been refused the
grant of a protection visa on complementary protection grounds for reasons
relating to the character of the person.
1.93
Measures raising human rights concerns or issues are set out below.
Changes to the statutory framework for complementary protection – real risk
in the entire country
1.94
Currently, under the Migration Act a person will not be considered to be
entitled to a protection visa on complementary protection grounds if it would
be reasonable for that person to relocate to an area of their home country
where they would not be at risk of significant harm. Complementary protection
refers to persons who may not satisfy the criteria for recognition as a refugee
but who, nevertheless, face a real risk of suffering significant harm if
removed from Australia to the receiving country.[21]
1.95
The bill seeks to amend the Act such that a person will not be
considered eligible for protection unless the risk they face relates to all
areas of their home country. That is, if an individual is found to be able to
live without a risk of significant harm in a small part of their home country
they would be ineligible for protection regardless if it would be reasonable or
practicable for them to travel to that area of their home country.
1.96
The committee considers that this provision engages Australia's
non-refoulement obligations as a person who does not meet the statutory
criteria under the Migration Act may be subject to return to their home
country.
Non-refoulement obligations
1.97
Australia has non-refoulement obligations under the Refugee Convention
for refugees, and under both the International Covenant on Civil and Political
Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) for people who are found not to be
refugees.[22]
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.[23]
1.98
Non-refoulement obligations are absolute and may not be subject to any
limitations.
1.99
Effective and impartial review by a court or tribunal of decisions to
deport or remove a person, including merits review in the Australian context,
is integral to complying with non-refoulement obligations.[24]
1.100
Australia gives effect to its non-refoulement obligations principally
through the Migration Act.
Compatibility of the measure with
the right to non-refoulement
1.101
The statement of compatibility acknowledges that Australia's
non-refoulement obligations are engaged by the bill, but states that:
...the UN Human Rights Committee (UNHRC) has described the
non-refoulement obligation under the ICCPR as being engaged only if a person
faces a risk of harm in the whole of a country. In addition, commentary from
the UN Committee Against Torture (UNCAT) has suggested that there must exist a
risk [of harm] in the entire territory of the target State and that there must
be no internal flight alternative, thus acknowledging the same approach should
be applied in the consideration of complementary protection claims regarding
torture, as is applied by the internal relocation principle in the
consideration of Refugee Convention claims. As such, this amendment is
compatible with human rights because it reflects Australia’s non-refoulement
obligations.[25]
1.102
There are divergent views as to whether or not under international human
rights law an 'internal flight option' – the ability to find safety in one part
of your home country – negates an individual's claim for protection against
refoulement. The weight of evidence would suggest this is not the case.[26]
What is clear from the jurisprudence is that such relocation must be reasonable
and practicable.[27]
In removing the requirement that the minister must be satisfied that it is
reasonable for a person to relocate to an area of their home country the bill
would result in a person being ineligible for protection even though it may not
be reasonable for them to relocate internally. This would leave such
individuals subject to refoulement in breach of Australia's international legal
obligations.
1.103
The statement of compatibility notes that:
In considering whether a person can relocate to another area,
a decision maker would still be required to take into account whether the
person can safely and legally access an alternative flight option upon
returning to the receiving country.[28]
1.104
However, there is no statutory requirement obliging a decision maker to
consider such matters. While such matters may be considered as a matter of
departmental policy, this is an insufficiently robust protection for the
purpose of international human rights law. The committee has consistently
stated that where a measure limits a human right, discretionary or
administrative safeguards alone are likely to be insufficient for the purpose
of a permissible limitation under international human rights law.[29]
This is because administrative and discretionary safeguards are less stringent
than the protection of statutory processes and can be amended or removed at any
time.
1.105
The committee's assessment of the proposed changes to the statutory
framework for complementary protection against article 3(1) of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment and articles 6(1) and 7 of the International Covenant on Civil and
Political Rights (non-refoulement) raises questions as to whether the changes
are compatible with Australia's international human rights law obligations.
1.106
The committee therefore seeks the advice of the Minister for Immigration
and Border Protection as to how the changes can be compatible with Australia's
absolute non-refoulement obligations, in light of the committee's concerns
raised above.
Changes to the statutory framework for complementary protection—behaviour
modification
1.107
The bill would also remove Australia's protection obligations in
circumstances where an individual could avoid significant harm if the person
could take reasonable steps to modify their behaviour. A person would not be required
to modify their behaviour if to do so would conflict with a characteristic that
is fundamental to the person's identity or conscience including their religion,
race, disability status or sexual orientation.
1.108
This provision engages Australia's non-refoulement obligation as an
individual, who would otherwise be granted protection in Australia, may be
deemed ineligible if they could modify their behaviour in a way that was
considered not to be in conflict with their fundamental identity.
Non-refoulement obligations
1.109
Australia non-refoulement obligations are described above at paragraphs
[1.97] to [1.100].
Compatibility of the measure with
the right to non-refoulement
1.110
The statement of compatibility provides that:
In the complementary protection context, a person may be able
to modify their behaviour in a manner that would not conflict with their
identity or belief system (for example, by refraining from engaging in an
occupation that carries risk where it is reasonable for the person to find
another occupation) and could thereby avoid the risk of significant harm. If
this is the case, they should not necessarily be provided with protection, as
their return would not itself engage non-refoulement obligations – the
risk of harm would only arise if they chose to undertake certain actions. This
amendment is therefore consistent with Australia’s non-refoulement obligations.[30]
1.111
The jurisprudence does not support the position outlined in the
statement of compatibility. The obligation to protect against refoulement is
not contingent on the oppressed avoiding conduct that might upset their
oppressors.[31]
The courts have found that persecution does not cease to be persecution simply
because those persecuted can eliminate the harm by taking avoiding action
within the country of nationality.[32]
This principle applies equally in the refugee assessment space as it does in
assessing complementary protection under the ICCPR and CAT.
1.112
The bill would require decision makers to assess whether or not a
behaviour modification is reasonable and not in conflict with a characteristic
that is fundamental to a person's identity or conscience. This measure imposes
additional statutory hurdles as part of the assessment of protection status.
It requires an assessment of not only whether a person could refrain from
certain actions but also take positive actions to conceal aspects of their
identity or conscience that are not assessed as fundamental.
1.113
Under the bill, a person could be required to not attend or participate
in any political activity, such as attending a rally, if such conduct is not
considered to be of fundamental importance to the person's conscience.
Similarly, a person who has previously worked as a journalist in their home
country could be required to cease work as a journalist if the content of their
published work risked attracting persecution.
1.114
The committee's assessment of the proposed changes to the statutory
framework for complementary protection (behaviour modification) against
article 3(1) of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment and articles 6(1) and 7 of the International
Covenant on Civil and Political Rights (non-refoulement) raises questions as to
whether the changes are compatible with Australia's international human rights
law obligations.
1.115
The committee therefore seeks the advice of the Minister for Immigration
and Border Protection as to how the changes can be compatible with Australia's
absolute non-refoulement obligations in light of the committee's concerns
raised above.
Excluded persons
1.116
Currently, section 502 of the Migration Act provides that the Minister
for Immigration and Border Protection may declare a person to be an excluded
person on character grounds. An excluded person may not seek merits review of a
decision at the Administrative Appeals Tribunal to deny their protection visa
application. This provision currently only applies to persons who have been
denied a protection visa on refugee grounds and not those who have applied for
a protection visa on the grounds of complementary protection. This bill would
extend the application of section 502 to individuals seeking a protection visa
on the grounds of complementary protection.
1.117
This amendment, in removing a person's ability to seek merits review of
a decision to refuse a visa on character grounds, engages the protection
against refoulement, including the right to an effective remedy. Effective and
impartial review by a court or tribunal of decisions to deport or remove a
person, including merits review in the Australian context, is integral to
complying with non-refoulement obligations.
Non-refoulement obligations
1.118
Australia non-refoulement obligations are described above at paragraphs
[1.97] to [1.100].
Compatibility of the measure with
the right to non-refoulement
1.119
The statement of compatibility explains that:
While merits review can be an important safeguard, there is
no express requirement under the ICCPR or the CAT that it is required in the
assessment of non-refoulement obligations. Anyone who is found through visa or
Ministerial intervention processes to engage Australia’s non refoulement
obligations will not be removed in breach of those obligations. All persons
impacted by the personal decisions made by the Minister will remain able to
access judicial review which satisfies the obligation in Article 13 [ICCPR] to
have review by a competent authority.[33]
1.120
The committee agrees that there is no express requirement specifically
for merits review in the articles of the relevant conventions or
jurisprudence relating to obligations of non‑refoulement. However, the committee
notes its view that merits review of such decisions is required to comply with
the obligation under international law, is based on a consistent analysis of
how the obligation applies, and may be fulfilled, in the Australian domestic
legal context.
1.121
In formulating this view, the committee has followed its usual approach
of drawing on the jurisprudence of bodies recognised as authoritative in
specialised fields of law that can inform the human rights treaties that fall
directly under the committee's mandate.
1.122
In this regard, the committee notes that treaty monitoring bodies have
found that the provision of effective and impartial review of non-refoulement
decisions by a court or tribunal is integral to complying with the obligation
of non-refoulement under the ICCPR and CAT. For example, the UN Committee
against Torture in Agiza v. Sweden found:
The nature of refoulement is such...that an allegation of
breach of...[the obligation of non-refoulement in] article [3 of the CAT] relates
to a future expulsion or removal; accordingly, the right to an effective remedy...
requires, in this context, an opportunity for effective, independent and
impartial review of the decision to expel or remove...The Committee’s previous
jurisprudence has been consistent with this view of the requirements of article
3, having found an inability to contest an expulsion decision before an
independent authority, in that case the courts, to be relevant to a finding of
a violation of article 3.[34]
1.123
Similarly, the UN Committee against Torture in Josu Arkauz Arana v.
France found that the deportation of a person under an administrative
procedure without the possibility of judicial intervention was a violation of
article 3 of the CAT.[35]
1.124
In relation to the ICCPR, in Alzery v. Sweden the UN Human Rights
Committee emphasised that the provision of effective and impartial review of
non-refoulement decisions by a court or tribunal is integral to complying with the
obligation of non-refoulement (as contained in article 7 of the ICCPR):
As to...the absence of independent review of the Cabinet’s
decision to expel, given the presence of an arguable risk of torture, the...[right
to an effective remedy and the prohibition on torture in articles 2 and 7 of
the ICCPR require] an effective remedy for violations of the latter provision.
By the nature of refoulement, effective review of a decision to expel to an
arguable risk of torture must have an opportunity to take place prior to
expulsion, in order to avoid irreparable harm to the individual and rendering
the review otiose and devoid of meaning. The absence of any opportunity for
effective, independent review of the decision to expel in...[this] case
accordingly amounted to a breach of article 7, read in conjunction with article
2 of the [ICCPR].[36]
1.125
The committee notes that these statements are persuasive as
interpretations of international human rights law that are consistent with the
proper interpretation of treaties as set out in the Vienna Convention on the
Law of Treaties (VCLT).[37]
1.126
The case law quoted above therefore establishes the proposition that,
while merits review is not expressly required, there is strict requirement for
'effective review' of non-refoulement decisions.
1.127
Applied to the Australian context, judicial review in Australia is
governed by the Administrative Decisions (Judicial Review) Act 1977, and
represents a considerably limited form of review in that it allows a court to
consider only whether the decision was lawful (that is, within the power of the
decision maker). The court cannot undertake a full review of the facts (that
is, the merits) of a particular case to determine whether the case was
correctly decided.
1.128
Accordingly, in the Australian context, the committee considers that
judicial review is not sufficient to fulfil the international standard required
of 'effective review', because it is only available on a number of restricted
grounds of review that do not relate to whether that decision was the correct
or preferable decision. The ineffectiveness of judicial review is particularly
apparent when considered against the purpose of effective review of
non-refoulement decisions under international law, which is to 'avoid
irreparable harm to the individual'.
1.129
In contrast, merits review allows a person or entity other than the
primary decision maker to reconsider the facts, law and policy aspects of the
original decision and to determine what is the correct or preferable decision.
1.130
In light of the above, the committee considers that, in the Australian
context, the requirement for independent, effective and impartial review of
non-refoulement decisions is not met by the availability of judicial review,
but may be fulfilled by merits review.
1.131
The committee's assessment of the proposed extension of the
Minister's power to exclude a person from merits review against article 3(1) of
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, articles 6(1) and 7 of the International Covenant on Civil and
Political Rights; and Second Optional Protocol to the International Covenant on
Civil and Political Rights Aiming at the Abolition of the Death Penalty
(non-refoulement) raises questions as to whether the changes are compatible
with Australia's international human rights law obligations.
1.132
The committee therefore seeks the advice of the Minister for Immigration
and Border Protection as to how the changes can be compatible with Australia's
absolute non-refoulement obligations in light of the committee's concerns
raised above.
Migration and Maritime Powers Amendment Bill (No. 1) 2015
Portfolio:
Immigration and Border Protection
Introduced: House
of Representatives, 16 September 2015
Purpose
1.133
The Migration and Maritime Powers Amendment Bill (No. 1) 2015 (the bill)
seeks to amend the Migration Act 1958 (the Migration Act) to:
-
provide that when an unlawful non-citizen is in the process of
being removed to another country and if, before they enter that country, the
person is returned to Australia, then that person has a lawful basis to return
to Australia without a visa;
-
provide that when that person is returned to Australia, bars on
the person making a valid visa application for certain visas will continue to
apply as if they had never left Australia;
-
make further amendments arising out of the enactment of the Migration
Amendment (Character and General Visa Cancellation) Act 2014;
-
confirm that a person who has previously been refused a protection
visa application that was made on their behalf cannot make a further protection
visa application;
-
ensure that fast track applicants can apply to the Administrative
Appeals Tribunal for review of certain decisions; and
-
correct a referencing error in relation to maritime crew visas,
and ensure that visa ceasing provisions operate as intended.
1.134
The bill also seeks to amend the Maritime Powers Act 2013 to amend
the powers that are able to be exercised in the course of passage through or
above waters of another country in a manner consistent with the United Nations
Convention on the Law of the Sea.
1.135
Measures raising human rights concerns or issues are set out below.
Extending the statutory bar on protection visa claims in the event of an
unsuccessful removal from Australia.
1.136
The amendments in Schedule 1 of the bill provide that when an
unsuccessful attempt is made to remove a non-citizen from Australia, the
non-citizen can be returned to Australia without a visa and will be taken to
have been continuously in the migration zone.
1.137
The effect of this amendment is that the person would be ineligible to
make further applications for a protection visa because they would be
characterised as being continuously in the migration zone, such that the
refusal or cancellation of their visa continues to have effect despite their
attempted removal.
1.138
Nevertheless, the fact that the person has been refused entry by their
home country may be a relevant factor in assessing the legitimacy of their
protection claim. It may also be evidence that they are effectively stateless.
The inability of individuals in such circumstances to make a new protection
claim means that the person may be subject to indefinite immigration detention
(raising the right to liberty) or subject to further attempts at deportation
that may engage Australia's non-refoulement obligations.
1.139
These measures would also apply to children and so raise questions as to
the compatibility of the measures with the obligation to consider the best
interests of the child.
1.140
The committee's assessment of the compatibility of the measures for each
of these human rights is set out below.
Right to liberty
1.141
Article 9 of the International Covenant on Civil and Political Rights
(ICCPR) protects the right to liberty—the procedural guarantee not to be
arbitrarily and unlawfully deprived of liberty. This prohibition against
arbitrary detention requires that the state should not deprive a person of
their liberty except in accordance with law. The notion of 'arbitrariness'
includes elements of inappropriateness, injustice and lack of predictability.
1.142
Accordingly, any detention must not only be lawful, it must also be
reasonable, necessary and proportionate in all the circumstances. Detention
that may initially be necessary and reasonable may become arbitrary over time
if the circumstances no longer require the detention. In this respect, regular
review must be available to scrutinise whether the continued detention is
lawful and non-arbitrary. The right to liberty applies to all forms of
deprivations of liberty, including immigration detention.
Compatibility of the measure with
the right to liberty
1.143
The statement of compatibility explains that the measures in Schedule 1
engage the right to liberty. The statement of compatibility further explains
that while the right to liberty is engaged, any limitation on the right is
otherwise justified. In terms of the legitimate objective of the measures the
statement of compatibility notes:
While this Bill widens the scope of non-citizens who will be
ineligible to apply for a visa and subsequently liable for detention under the
Migration Act, they present a reasonable response to achieving a legitimate
purpose under the ICCPR, being the safety of the Australian community and
integrity of the migration programme. Further, the re-detention of unlawful
non-citizens who are brought back to the migration zone will also be for the
legitimate purpose of completing their removal from Australia under section 198
of the Migration Act.[38]
1.144
The committee considers that ensuring the safety of Australians is a
legitimate objective for the purpose of international human rights law.
However, the statement of compatibility does not explicitly explain how the
measures are rationally connected to that objective, nor how they are
proportionate. In particular, it is unclear whether there are sufficient
safeguards to ensure that the detention of persons after their return to
Australia following an unsuccessful return to their home country will not lead
to cases of arbitrary detention.
1.145
The statement of compatibility notes that:
The Australian Government's position is that the detention of
individuals is neither unlawful nor arbitrary per se under international law.
Continuing detention may become arbitrary after a certain period of time without
proper justification. The determining factor, however, is not the length of
detention, but whether the grounds for the detention are justifiable. In the
context of Article 9, detention that is not "arbitrary" must have a
legitimate purpose within the framework of the ICCPR in its entirety. Detention
must be predictable in the sense of the rule of law (it must not be capricious)
and it must be reasonable (or proportional) in relation to the purpose to be
achieved.[39]
1.146
However, the committee notes the UN Human Rights Committee (HRC)
decision concerning the continued detention of 46 refugees subject to adverse
ASIO security assessments. The HRC found that their indefinite detention on
security grounds amounted to arbitrary detention and to cruel, inhuman or degrading
treatment, contrary to articles 9(1), 9(4) and 7 of the ICCPR. The HRC
considered the detention of the refugees to be in violation of the right to
liberty in article 9 of the ICCPR because the government:
-
had not demonstrated on an individual basis that their continuous
indefinite detention was justified; or that other, less intrusive measures
could not have achieved the same security objectives;
-
had not informed them of the specific risk attributed to each of
them and of the efforts undertaken to find solutions to allow them to be
released from detention; and
-
had deprived them of legal safeguards to enable them to challenge
their indefinite detention, in particular, the absence of substantive review of
the detention, which could lead to their release from arbitrary detention.[40]
1.147
Accordingly, it is the blanket and mandatory nature of detention for
those who have been refused a visa but to whom Australia is unable to remove
from Australia and so remain in indefinite immigration detention, that makes
such detention arbitrary. In particular, the Australian system provides for no
consideration of whether detention is justified and necessary in each
individual case—detention is simply required as a matter of policy. It is this
essential feature of the mandatory detention regime that invokes the right to
liberty in article 9 of the ICCPR.
1.148
The committee agrees that the safety of the Australian community,
particularly in the current security environment, may be considered to be both
a pressing and substantial concern and a legitimate objective. However, as
mandatory detention applies to individuals regardless of whether they are a
threat to national security, the measure does not appear to be rationally
connected to achieve this objective and may not be proportionate because it is
not the least rights restrictive approach to achieve the legitimate objective.
1.149
The committee's assessment of the proposed extension of the
statutory bar on protection visa claims in the event of an unsuccessful removal
from Australia, in the context of Australia's mandatory immigration detention
policy, against article 9 of the International Covenant on Civil and
Political Rights (right to liberty) raises questions as to whether the measure
is justifiable under international human rights law.
1.150
As set out above, extending the statutory bar on protection visa
claims in the event of an unsuccessful removal from Australia, in the context
of Australia's mandatory immigration detention policy, limits the right to
liberty. As set out above, the statement of compatibility does not sufficiently
justify that limitation for the purposes of international human rights law. The
committee therefore seeks the advice of the Minister for Immigration and Border
Protection as to:
whether there is a rational connection between the limitation
and that objective; and
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective, in particular, is it the least
rights restrictive approach that could be taken in order to achieve the stated
objective.
Non-refoulement obligations
1.151
Australia has non-refoulement obligations under the Refugee Convention
for refugees, and under both the ICCPR and the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) for people who
are found not to be refugees.[41] 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.[42]
1.152
Non-refoulement obligations are absolute and may not be subject to any
limitations.
1.153
Effective and impartial review by a court or tribunal of decisions to
deport or remove a person, including merits review in the Australian context,
is integral to complying with non-refoulement obligations.[43]
1.154
Australia gives effect to its non-refoulement obligations principally
through the Migration Act.
Compatibility of the measure with
the right to non-refoulement
1.155
The statement of compatibility notes that the amendments:
may lead to an unlawful non-citizen being ineligible to make
a further application for a protection visa, however, Australia's implementation
of the below obligations are complemented by the ability of the Minister of
Immigration and Border Protection (the Minister) to exercise his or her
non-compellable powers under the Migration Act to grant a visa.[44]
1.156
The statement of compatibility also notes that:
My department recognises that
these non-refoulement obligations are absolute and does not seek to resile from
or limit Australia's obligations. However, the form of administrative
arrangements in place to support Australia meeting its non-refoulement
obligations is a matter for the Government.[45]
1.157
The committee's long-standing view is that the minister's
non-compellable powers are an insufficient protection against non-refoulement
and that international law is clear that administrative arrangements are
insufficient to protect against unlawful refoulement.
1.158
The obligation of non-refoulement and the right to an effective remedy
require an opportunity for effective, independent and impartial review of the
decision to expel or remove.[46]
In this regard, the committee notes that there is no right to merits review of
a decision that is made personally by the minister.
1.159
In relation to this, treaty monitoring bodies have found that the
provision of effective and impartial review of non-refoulement decisions by a
court or tribunal is integral to complying with the obligation of
non-refoulement under the ICCPR and CAT. For example, the UN Committee against
Torture in Agiza v. Sweden found:
The nature of refoulement is such...that an allegation of breach
of...[the obligation of non-refoulement in] article [3 of the CAT] relates to a
future expulsion or removal; accordingly, the right to an effective remedy...
requires, in this context, an opportunity for effective, independent and
impartial review of the decision to expel or remove...The Committee’s previous
jurisprudence has been consistent with this view of the requirements of article
3, having found an inability to contest an expulsion decision before an
independent authority, in that case the courts, to be relevant to a finding of
a violation of article 3.[47]
1.160
Similarly, the UN Committee against Torture in Josu Arkauz Arana v.
France found that the deportation of a person under an administrative
procedure without the possibility of judicial intervention was a violation of
article 3 of the CAT.[48]
1.161
In relation to the ICCPR, in Alzery v. Sweden the UN Human Rights
Committee emphasised that the provision of effective and impartial review of
non-refoulement decisions by a court or tribunal is integral to complying with the
obligation of non-refoulement (as contained in article 7 of the ICCPR):
As to...the absence of independent review of the Cabinet’s
decision to expel, given the presence of an arguable risk of torture, the...[right
to an effective remedy and the prohibition on torture in articles 2 and 7 of
the ICCPR require] an effective remedy for violations of the latter provision.
By the nature of refoulement, effective review of a decision to expel to an
arguable risk of torture must have an opportunity to take place prior to
expulsion, in order to avoid irreparable harm to the individual and rendering
the review otiose and devoid of meaning. The absence of any opportunity for
effective, independent review of the decision to expel in...[this] case
accordingly amounted to a breach of article 7, read in conjunction with article
2 of the [ICCPR].[49]
1.162
As the committee has noted previously, administrative and discretionary
safeguards are less stringent than the protection of statutory processes, and
are insufficient in and of themselves to satisfy the standards of 'independent,
effective and impartial' review required to comply with Australia’s non-refoulement
obligations under the ICCPR and the CAT.[50]
The committee notes that review mechanisms are important in guarding against
the irreversible harm which may be caused by breaches of Australia's
non-refoulement obligations.
1.163
The committee's assessment of the proposed extension of the statutory
bar on protection visa claims in the event of an unsuccessful removal from
Australia against article 3(1) of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, articles 6(1) and 7
of the International Covenant on Civil and Political Rights; and Second
Optional Protocol to the International Covenant on Civil and Political Rights
Aiming at the Abolition of the Death Penalty (non-refoulement) raises questions
as to whether the changes are compatible with Australia's international human
rights law obligations.
1.164
The committee therefore seeks the advice of the Minister for Immigration
and Border Protection as to how the changes can be compatible with Australia's
absolute non-refoulement obligations in light of the committee's concerns
raised above.
Obligation to consider the best
interests of the child
1.165
Under the Convention on the Rights of the Child (CRC), state parties are
required to ensure that, in all actions concerning children, the best interests
of the child is a primary consideration.[51]
1.166
This principle requires active measures to protect children's rights and
promote their survival, growth and wellbeing, as well as measures to support
and assist parents and others who have day-to-day responsibility for ensuring
recognition of children's rights. It requires legislative, administrative and
judicial bodies and institutions to systematically consider how children's
rights and interests are or will be affected directly or indirectly by their
decisions and actions.
Compatibility of the measure with
the obligation to consider the best interests of the child
1.167
As set out above, the measures in Schedule 1 of the bill have the effect
of denying a person who has been unsuccessfully removed from Australia from
making further applications for a protection visa. The fact that the person has
been refused entry by their home country may be a relevant factor in assessing
the legitimacy of their protection claim. It may also be evidence that they are
effectively stateless. These measures would also apply to children.
Accordingly, it is necessary to consider how it would be in a child's best interests
to be denied the right to make a new protection visa application where they had
been refused entry by their home country. The engagement of the measures in
Schedule 1 with the obligation to consider the best interests of the child is
not considered in the statement of compatibility.
1.168
The committee's usual expectation where a measure may limit a human
right is that the accompanying statement of compatibility provide a reasoned
and evidence-based explanation of how the measure supports a legitimate objective
for the purposes of international human rights law. This conforms with the
committee's Guidance Note 1,[52]
and the Attorney-General's Department's guidance on the preparation of
statements of compatibility, which states that the 'existence of a legitimate
objective must be identified clearly with supporting reasons and, generally,
empirical data to demonstrate that [it is] important'.[53] To be capable of
justifying a proposed limitation of human rights, a legitimate objective must
address a pressing or substantial concern and not simply seek an outcome
regarded as desirable or convenient. Additionally, a limitation must be
rationally connected to, and a proportionate way to achieve, its legitimate
objective in order to be justifiable in international human rights law.
1.169
The committee's assessment of the proposed extension of the statutory
bar on protection visa claims in the event of an unsuccessful removal from Australia
against article 3(1) of the Convention on the Rights of the Child
(obligation to consider the best interests of the child) raises
questions as to whether the changes are compatible with the rights of the child.
1.170
As set out above, extending the statutory bar on protection visa
claims in the event of an unsuccessful removal from Australia, limits the
obligation to consider the best interests of the child. As set out above, the
statement of compatibility does not sufficiently justify that limitation for
the purposes of international human rights law. The committee therefore requests
the Minister for Immigration and Border Protection's advice on the
compatibility of Schedule 1 of the bill with the obligation to consider the
best interests of the child and, particularly:
-
whether the proposed changes are aimed at achieving a legitimate
objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Expansion of visa cancellation powers
1.171
Schedule 2 of the bill includes amendments which the Explanatory
Memorandum (EM) describes as 'technical and consequential amendments arising
out of the Migration Amendment (Character and General Visa Cancellation)
Act 2014 (the Character Act).'[54]
The Character Act introduced new powers to refuse or cancel visas on
'character' grounds. The Character Act has the effect of automatically
cancelling a visa if, among other things, the person was imprisoned for a
sentence of 12 months or more, or was convicted of a sexually based offence
involved a child. The Character Act also creates new personal ministerial
powers to reverse decisions made by the Administrative Appeals Tribunal or an
officer of the department. In addition, the Character Act significantly
decreased the threshold under which a person would fail the 'character test'
and increased the Minister’s powers to cancel visas on the basis of incorrect
information.
1.172
When considering the bill that became the Character Act, the committee
considered that it engaged a number of human rights and related obligations.[55]
Schedule 2 of the bill now makes a number of amendments to the new cancellation
powers introduced by the Character Act which reduce procedural safeguards,
including amendments that:
-
do not require a person in detention to be informed that they
have only two working days to apply for a visa after they have had their visa
cancelled by the minister personally under section 501BA;[56]
-
require a refugee to be held indefinitely even if there is no
prospect they can ever be removed, or if the visa decision is unlawful;[57]
-
extends a ban on most further visa applications in cases where
the minister has personally cancelled a visa;[58]
-
automatically cancel or refuse any other visas in cases where the
minister has personally set aside a decision by the Administrative Appeals
Tribunal or a departmental officer;[59]
and
-
exclude a person for a prescribed time from entering Australia
who has a visa refused or cancelled personally by the minister under sections
501B, or 501BA.[60]
1.173
The committee considers that the changes in Schedule 2 widen the
circumstances in which a person may be subject to immigration detention, visa
cancellation and potential refoulement. Accordingly, Schedule 2 engages the
following rights and obligations:
-
non-refoulement obligations;
-
the right to liberty;
-
the right to freedom of movement;
-
the obligation to consider the best interests of the child; and
-
the right to equality and non-discrimination.
1.174
The committee's assessment of the compatibility of the measures for each
of these human rights is set out below.
Right to liberty
1.175
The right to liberty is described above at paragraphs [1.141] to [1.142].
Compatibility of the measures with
the right to liberty
1.176
The statement of compatibility explains that the measures in Schedule 2
engage but do not limit the right to liberty. The reasoning behind this
conclusion is unclear in the statement of compatibility.
1.177
The statement of compatibility nevertheless goes on to explain why any
limitation on the right to liberty is justified. In terms of the legitimate
objective of the measures the statement of compatibility notes:
While this Bill widens the scope of non-citizens who will be
ineligible to apply for a visa and subsequently liable for detention under the
Migration Act, these amendments present a reasonable response to achieving a
legitimate purpose under the ICCPR – the safety of the Australian community and
integrity of the migration programme.[61]
1.178
The committee considers that ensuring the safety of Australians is a
legitimate objective for the purpose of international human rights law. However,
it is unclear whether these amendments are rationally connected to that
objective. In terms of proportionality the statement of compatibility states
that:
questions of proportionality are resolved by way of
comprehensive policy guidelines on matters to be taken into account when
exercising the discretion to cancel a non-citizen's visa, or whether to revoke
a mandatory cancellation decision.[62]
1.179
However, there is no discretion once a visa is cancelled or if it is
cancelled automatically by operation of the provisions of the Migration Act.
Moreover, a decision to revoke mandatory cancellation can only be made by the
minister using his personal, non-compellable, discretionary powers.
1.180
The statement of compatibility notes that:
The detention of a non-citizen under these circumstances is
considered neither unlawful nor arbitrary under international law. The
Government has processes in place to mitigate any risk of a non-citizen's
detention becoming indefinite or arbitrary through: internal administrative
review processes; Commonwealth Ombudsman enquiry processes, reporting and
Parliamentary tabling; and, ultimately the use of the Minister's personal
intervention powers to grant a visa or residence determination where it is
considered in the public interest.[63]
1.181
However, none of these mechanisms entail a statutory requirement for
periodic review of the necessity of immigration detention in each individual
case. As noted above at paragraphs [1.146] to [1.147], it is the blanket and
mandatory nature of detention for those who have been refused a visa but who
remain in immigration detention that makes such detention arbitrary. In
particular, the Australian system provides for no consideration of whether
detention is justified and necessary in each individual case—detention is
simply required as a matter of policy. It is this essential feature of the
mandatory detention regime that invokes the right to liberty in article 9 of
the ICCPR.
1.182
The statement of compatibility also notes that:
The United Nations Human Rights Committee has expressed a
view that Article 9(2) of the ICCPR requires all persons deprived of their
liberty to be informed of the reasons for their detention. This Bill proposes
provisions to the effect that a non-citizen who has had a visa cancelled by the
Minister personally under section 501BA does not need to be informed of sections
195 and 196 of the Migration Act, which provide that they may only apply for a
visa within 2 working days and their detention will continue until they are
removed, deported, or granted a visa. However, a non-citizen who has their visa
cancelled under section 501BA will have previously had their visa cancelled
under section 501, and so will have been detained under section 189 and
informed of sections 195 and 196 at that point. Further, the Department
complies with Article 9(2) through the Very Important Notice (Form 1423) that
is given to all non-citizens on their detention under section 189 of the
Migration Act. This form provides comprehensive information to detainees about
their detention, visas they may apply for, their personal property and where to
find more information.[64]
1.183
The committee notes that no specific explanation is provided for why the
bill includes amendments that a non-citizen who has had a visa cancelled by the
minister personally under section 501BA does not need to be informed that they
may only apply for a visa within 2 working days. Moreover, given the time
critical nature of a person's response to cancellation, no justification is
provided as to how it is sufficient that such information will have been
provided previously in a different context, particularly given the very serious
consequences for the individual concerned and given their pre-existing
vulnerability as a person in detention. It is unclear how this amendment is
necessary or reasonable.
1.184
Returning to Schedule 2 as a whole, the committee accepts that the
safety of the Australian community, particularly in the current security
environment, may be considered to be both a pressing and substantial concern
and a legitimate objective. However, as mandatory detention applies to individuals
regardless of whether they are a threat to national security, the measure does
not appear to be rationally connected to this objective and may not be
proportionate as it is not likely to be the least rights restrictive approach
to achieve the legitimate objective.
1.185
The committee's assessment of the proposed expansion of visa
cancellation powers against article 9 of the International Covenant on
Civil and Political Rights (right to liberty) raises questions as to whether
the measures are justifiable under international human rights law.
1.186
As set out above, the expansion of visa cancellation powers
limits the right to liberty. The statement of compatibility does not
sufficiently justify that limitation for the purposes of international human
rights law. The committee therefore seeks the advice of the Minister for
Immigration and Border Protection as to:
-
whether there is a rational connection between the limitation
and the stated objective; and
-
whether the limitation is a reasonable and proportionate measure
for the achievement of the stated objective.
Non-refoulement obligations and the
right to an effective remedy
1.187
Australia's non-refoulement obligations are described above at
paragraphs [1.97] to [1.100].
Compatibility of the measures with
Australia's non-refoulement obligations
1.188
The statement of compatibility notes that the amendments:
may lead to an unlawful non-citizen being ineligible to make
a further application for a protection visa, however, Australia's
implementation of the below obligations are complemented by the ability of the
Minister of Immigration and Border Protection (the Minister) to exercise his or
her non-compellable powers under the Migration Act to grant a visa.[65]
1.189
The statement of compatibility also notes that:
My department recognises that
these non-refoulement obligations are absolute and does not seek to resile from
or limit Australia's obligations. Non-refoulement obligations are considered as
part of a section 501 decision not to revoke cancellation of a visa under
character grounds. Anyone who is found to engage Australia's non-refoulement
obligations during the cancellation consideration will not be removed in breach
of those obligations. There are a number of personal non-compellable powers
available for the Minister to allow a visa application or grant a visa where
this is in the public interest. The form of administrative arrangements in
place to support Australia meeting its non-refoulement obligations is a
matter for the Government.[66]
1.190
As set out above in relation to Schedule 1 at paragraphs [1.157] to [1.162]
the committee's view is that the minister's non-compellable powers are an
insufficient protection against non-refoulement and that international law is
very clear that administrative arrangements are insufficient to protect against
unlawful refoulement.
1.191
Where the processes identified as a safeguard against refoulement
involve purely administrative and discretionary mechanisms, these are
insufficient, on their own, to comply with Australia's non-refoulement
obligations.
1.192
The committee's assessment of the proposed expansion of visa
cancellation powers against article 3(1) of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, articles
6(1) and 7 of the International Covenant on Civil and Political Rights; and
Second Optional Protocol to the International Covenant on Civil and Political
Rights Aiming at the Abolition of the Death Penalty (non-refoulement) raises
questions as to whether the changes are compatible with Australia's
international human rights law obligations.
1.193
The committee therefore seeks the advice of the Minister for
Immigration and Border Protection as to how the changes can be compatible with
Australia's absolute non-refoulement obligations in light of the committee's
concerns raised above.
Right to freedom of movement
1.194
Article 12 of the ICCPR protects freedom of movement. The right to freedom
of movement includes the right to move freely within a country for those who
are lawfully within the country, the right to leave any country and the right
to enter a country of which you are a citizen. The right may be restricted in
certain circumstances.
1.195
The right to enter one's own country includes a right to remain in the
country, return to it and enter it. There are few, if any, circumstances in
which depriving a person of the right to enter their own country could be
reasonable. Australia cannot, by stripping a person of nationality or by
expelling them to a third country, arbitrarily prevent a person from returning
to his or her own country.
1.196
The reference to a person's 'own country' is not necessarily restricted
to the country of one's citizenship—it might also apply when a person has very
strong ties to the country.
Compatibility of the measures with
the right to freedom of movement
1.197
The committee notes that the expanded visa cancellation powers, in
widening the scope of people being considered for visa cancellation, may lead
to more permanent residents having their visas cancelled and potentially being
deported from Australia.
1.198
The statement of compatibility states that freedom of movement is
engaged by the provisions but only considers this right in relation to the
right to move freely around Australia (in the context of the immigration
detention). The statement of compatibility considers that the limitation is
justified in these contexts.
1.199
The statement of compatibility does not address the broader issue of
whether using any of the expanded visa cancellation powers to cancel the visa
of a permanent resident, who has lived for many years in Australia and has
strong ties with Australia, and banning them from ever returning to Australia,
is consistent with the right to freedom of movement.
1.200
The UN Human Rights Committee (HRC) has interpreted the right to freedom
of movement under article 12(4) of the ICCPR as applying to non-citizens where
they had sufficient ties to a country, and indeed noted that 'close and
enduring connections' with a country 'may be stronger than those of
nationality'.[67]
1.201
The HRC's views are not binding on Australia as a matter of
international law. Nevertheless, the HRC's views are highly authoritative
interpretations of binding obligations under the ICCPR and should be given
considerable weight by the government in its interpretation of Australia’s
obligations. Moreover, these statements of the HRC in relation to article 12(4)
are persuasive as interpretations of international human rights law that are
consistent with the proper interpretation of treaties as set out in the Vienna
Convention on the Law of Treaties (VCLT).[68]
1.202
In addition, the words of article 12(4) do not make any reference to a
requirement of 'citizenship' or 'nationality' but instead use the phrase 'own
country'. In interpreting these words according to their 'ordinary meaning' as
required by the VCLT, the phrase 'own country' clearly may be read as a broader
concept than the terms 'citizenship' or 'national'.
1.203
Article 32 of the VCLT provides that in the interpretation of treaties
recourse may be had to supplementary means of interpretation in circumstances
where the meaning is ambiguous or unreasonable. Supplementary means of
interpretation include the preparatory work of a treaty, such as the
negotiating record or travaux préparatoires. The committee notes that
the travaux préparatoires for article 12(4) show that the terms
'national' and 'right to return to a country of which he is a national' were
expressly considered and rejected by states during the negotiation of the
ICCPR.
1.204
The travaux préparatoires for article 12(4) also show that
Australia expressed concern during the negotiations about a right of return for
persons who were not nationals of a country but who had established their home
in that country (such as permanent residents in the Australian context).
Accordingly, the phrase 'own country' was proposed by Australia as a
compromise, and the right to enter one's 'own country' rather than the right to
return to a country of which one is a 'national' was agreed in the final text
of the ICCPR.[69]
1.205
In this context, the right to return to one's 'own country' applies to
persons who are not nationals, but have strong links with Australia. As such,
the measures in the bill in expanding the visa cancellation powers and the
power to ban people from returning to Australia engage and limit the right of a
person to return to one's own country. This has not been justified in the
statement of compatibility.
1.206
The committee's assessment of the proposed expansion of visa
cancellation powers, including barring a person from applying for other visas, against
article 12(4) of the International Covenant on Civil and Political Rights
(freedom of movement—right to enter one's own country) raises questions as to
whether the measures are justifiable under international human rights law.
1.207
As set out above, the expansion of visa cancellation powers
limits the right to freedom of movement. The statement of compatibility does
not sufficiently justify that limitation for the purposes of international
human rights law. The committee therefore seeks the advice of the Minister for
Immigration and Border Protection as to:
-
whether the proposed changes are aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Best interests of the child
1.208
The obligation to consider the best interests of the child is described
above at paragraph [1.165] to [1.166].
Compatibility of the measure with
the obligation to consider the best interests of the child
1.209
As set out above, the Character Act introduced provisions automatically
cancelling a visa if, among other things, the person was imprisoned for a
sentence of 12 months or more. The bill makes a number of amendments to the new
cancellation powers introduced by the Character Act which reduce procedural
safeguards. The measures will apply to children who are convicted of an offence
and imprisoned for a sentence of 12 months or more. The cancellation of a
child's visa on the grounds of character raises questions as to how the
obligation to consider the best interests of the child is considered as part of
the visa cancellation process, when the visa being cancelled is held by a
child.
1.210
This obligation to consider the best interests of the child is discussed
in the statement of compatibility, however, it is unclear whether this analysis
is focused on the children of adults who have their visa cancelled on character
grounds or children whose visas are directly cancelled on character grounds.
1.211
The procedure for automatic loss of a visa does not appear to provide
for a consideration of the best interests of the child, as the provision
applies automatically to those who have been convicted of an offence and
sentenced to more than 12 months imprisonment. The provision does not take into
account each child's capacity for reasoning and understanding in accordance
with their emotional and intellectual maturity. It does not take into account
the child's culpability for the conduct in accordance with normative standards
of Australian law. It does not take into account whether the loss of their visa
and right to stay in Australia would be in the best interests of the child
given their particular circumstances.
1.212
As set out above, the committee's usual expectation where a limitation
on a right is proposed is that the statement of compatibility provide an
assessment of whether the limitation is reasonable, necessary, and
proportionate to achieving a legitimate objective. The committee notes that to
demonstrate that a limitation is permissible, legislation proponents must
provide reasoned and evidence-based explanations of why the measures are
necessary in pursuit of a legitimate objective.
1.213
The committee's assessment of the proposed expansion of visa
cancellation powers against article 3(1) of the Convention on the
Rights of the Child (obligation to consider the best interests of the child) raises
questions as to whether the changes are compatible with Australia's
international human rights law obligations.
1.214
As set out above, the expansion of visa cancellation powers limits
the obligation to consider the best interests of the child. As set out above,
the statement of compatibility does not justify that limitation for the
purposes of international human rights law. The committee therefore requests
the Minister for Immigration and Border Protection's advice on the
compatibility of Schedule 2 of the bill with the obligation to consider the best
interests of the child and, particularly:
-
whether the proposed changes are aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Right to equality and non-discrimination (rights of persons with
disabilities)
1.215
The right to equality and non-discrimination is protected by articles 2,
16 and 26 of the ICCPR.
1.216
This is a fundamental human right that is essential to the protection
and respect of all human rights. It provides that everyone is entitled to enjoy
their rights without discrimination of any kind, and that all people are equal
before the law and entitled without discrimination to the equal and
non-discriminatory protection of the law.
1.217
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or religion),[70]
which has either the purpose (called 'direct' discrimination), or the effect (called
'indirect' discrimination), of adversely affecting human rights.[71]
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
personal attribute.[72]
1.218
The Convention on the Rights of Persons with Disabilities (CRPD) further
describes the content of these rights, describing the specific elements that
state parties are required to take into account to ensure the right to equality
before the law for people with disabilities, on an equal basis with others.
1.219
Article 5 of the CRPD guarantees equality for all persons under and
before the law and the right to equal protection of the law. It expressly
prohibits all discrimination on the basis of disability.
1.220
Article 12 of the Convention on the Rights of Persons with
Disabilities (CRPD) requires state parties to refrain from denying persons with
disabilities their legal capacity, and to provide them with access to the
support necessary to enable them to make decisions that have legal effect.
Compatibility of the measure with
the right to equality and non-discrimination (rights of persons with
disabilities)
1.221
Individuals with mental health concerns are significantly
overrepresented in Australia's prison system.[73]
Accordingly, the bill, in extending the automatic visa cancellation of
individuals sentenced to 12 months or more in prison is likely to
disproportionately affect individuals with mental health concerns. Mental
health disorders are a disability for the purposes of the CRPD and thus a
protected attribute for the purposes of the right to equality and
non-discrimination.
1.222
Where a measure impacts on particular groups disproportionately, it
establishes prima facie that there may be indirect discrimination. Indirect
discrimination does not necessarily import any intention to discriminate and
can be an unintended consequence of a measure implemented for a legitimate
purpose. The concept of indirect discrimination in international human rights
law therefore looks beyond the form of a measure and focuses instead on whether
the measure could have a disproportionately negative effect on particular
groups in practice. However, under international human rights law such a
disproportionate effect may be justifiable. More information is required to
establish if the measure does impact disproportionately on persons with
disabilities, and if so, if such a disproportionate effect is justifiable.
1.223
The statement of compatibility makes no reference to the rights of
persons with disabilities. As stated above, the committee's usual expectation
where a measure may limit a human right is that the accompanying statement of
compatibility provide a reasoned and evidence-based explanation of how the
measure supports a legitimate objective and is rationally connected to, and a
proportionate way to achieve, its stated objective. In this regard, the
committee notes that with appropriate health care and support, many individuals
who commit offences while suffering mental health issues are less likely to
reoffend. These individuals are therefore less likely to be a national security
concern.
1.224
The committee's assessment of the proposed expansion of visa
cancellation powers against articles 2, 16 and 26 of the International
Covenant on Civil and Political Rights, and article 5 of the Convention on the
Rights of Persons with Disabilities (right to equality and
non-discrimination) raises questions as to whether the changes are
compatible with Australia's international human rights law obligations.
1.225
As set out above, the expansion of visa cancellation powers may
limit the right to equality and non-discrimination on the basis of
disability. As set out above, the statement of compatibility does not justify
that limitation for the purposes of international human rights law. The
committee therefore requests the Minister for Immigration and Border
Protection's advice on the compatibility of Schedule 2 of the bill with the
obligation to consider the right to equality and non-discrimination and,
particularly:
-
whether the proposed changes are aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Bars on further applications by children and persons with a mental
impairment
1.226
Section 48A of the Migration Act provides that a non-citizen who,
while in the migration zone, has made an application for a protection visa that
was refused, or who held a protection visa that was cancelled, may not make a
further application for a protection visa. Section 48A was amended in 2014 by
the Migration Amendment Act 2014 (the MA Act) and the Migration
Legislation Amendment Act (No.1) 2014 (the MLA Act).
1.227
The MA Act prevented a further application even if the second
application was based on different protection grounds. The MLA prevented a
further application even if, at the time of the first application, the person
was a child or unable to understand the application (for example, due to their
mental health).
1.228
The effect of this bill would be to ensure that the bar on further
applications applies even if the person is both a child (for example) and makes
an application on different protection grounds.
1.229
The committee considered that the MLA engaged Australia's
non-refoulement obligations, the obligation to consider the best interests of
the child, the right of the child to be heard in judicial and administrative
proceedings, the right of persons with disabilities to be recognised as persons
before the law and to the equal enjoyment of legal capacity, and the right to
equality and non-discrimination. The amendments in this bill ensure that the
amendments in the MLA also apply in circumstances where the individual may wish
to apply for a protection visa on a different substantive ground and, as such,
the bill further restricts access to a protection visa. Accordingly, this bill
also engages these rights.
1.230
The committee's assessment of the compatibility of the measures for each
of these human rights is set out below.
Non-refoulement obligations and the
right to an effective remedy
1.231
Australia non-refoulement obligations are described above at paragraphs
[1.97] to [1.100].
Compatibility of the measures with
Australia's non-refoulement obligations
1.232
The statement of compatibility notes that while the amendments:
...engages rights under the CAT
and the ICCPR, the amendment does not remove the opportunity of persons to make
claims for protection as against these rights or to have those claims assessed.[74]
1.233
The statement of compatibility also notes that:
...where a person who has
previously had a protection visa application refused (including where the
application was made by another authorised person on their behalf) now raises
protection claims relying on a different ground to the one(s) on which the
previous application was based, the Minister has personal power under section
48B of the Migration Act to intervene to allow a further protection visa
application to be made in the public interest. For example, if a person was a
minor at the time the previous protection visa application was made on their
behalf (i.e. by being included in their parent's protection visa application as
a member of the same family unit of the parent), and now as an adult the person
has protection claims of their own, the Minister may exercise his or her
personal power under section 48B to enable the person to make a new protection
visa application so that their personal claims, which were not raised or
assessed previously, can be assessed.[75]
1.234
As set out above at paragraphs [1.157] to [1.162] in relation to
Schedule 1, the minister's personal, non-compellable powers are an insufficient
protection against non-refoulement and that international law is very clear
that administrative arrangements are insufficient to protect against unlawful
refoulement.
1.235
Where the processes identified as a safeguard against refoulement
involve purely administrative and discretionary mechanisms, these are
insufficient, on their own, to comply with Australia's non-refoulement
obligations. The committee therefore considers that the amendments could
increase the risk of Australia breaching its non-refoulement obligations.
1.236
The committee's assessment of the proposed bar on further
applications by children and persons with a mental impairment against article
3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, articles 6(1) and 7 of the International Covenant on
Civil and Political Rights; and Second Optional Protocol to the International
Covenant on Civil and Political Rights Aiming at the Abolition of the Death
Penalty (non-refoulement) raises questions as to whether the changes are
compatible with Australia's international human rights law obligations.
1.237
The committee therefore seeks the advice of the Minister for
Immigration and Border Protection as to how the changes can be compatible with
Australia's absolute non-refoulement obligations in light of the committee's
concerns raised above.
Obligation to consider the best
interests of the child
1.238
The obligation to consider the best interests of the child is described
above at paragraphs [1.165] to [1.166].
Compatibility of the measures with the
obligation to consider the best interests of the child
1.239
As noted above, the bill would prevent a child from making a further
protection visa application even in circumstances where allowing the visa
application would likely be in their best interests (such as where they had a
valid independent protection claim).
1.240
This obligation is not addressed in the statement of compatibility. The
committee notes that when the provisions were first included in the MLA the
committee concluded that the measures were likely to be incompatible with the
obligation to consider the best interests of the child.
1.241
As set out above, the committee's usual expectation where a measure may
limit a human right is that the accompanying statement of compatibility provide
a reasoned and evidence-based explanation of how the measure supports a legitimate
objective and is rationally connected to, and a proportionate way to achieve, that
objective.
1.242
The committee's assessment of the proposed bar on further
applications by children and persons with a disability against article
3(1) of the Convention on the Rights of the Child (obligation to consider the
best interests of the child) raises questions as to whether the changes
are compatible with Australia's international human rights law obligations.
1.243
As set out above, extending the bar on further
applications by children limits the obligation to consider the best interests
of the child. As set out above, the statement of compatibility does not justify
that limitation. The committee therefore requests the Minister for Immigration
and Border Protection's advice on the compatibility of Schedule 3 of the bill
with the obligation to consider the best interests of the child and,
particularly:
-
whether the proposed changes are aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Right of the child to be heard in
judicial and administrative proceedings
1.244
Article 12 of the CRC provides that state parties shall assure to a
child capable of forming his or her own views the right to express those views
freely in all matters affecting the child. The views of the child must be given
due weight in accordance with the age and maturity of the child.
1.245
In particular, this right requires that the child is provided the
opportunity to be heard in any judicial and administrative proceedings
affecting them, either directly, or through a representative or an appropriate
body, in a manner consistent with the procedural rules of national law.
Compatibility of the measures with
the right of the child to be heard in judicial and administrative proceedings
1.246
The amendments in Schedule 3 further limit the ability of children to
make a subsequent visa application on alternative protection grounds even where
they did not contribute to or consent to the first application.
1.247
When the MLA was introduced the committee noted that the effect of the
proposed amendments in Schedule 1 was to create an assumption, in cases
involving a subsequent visa application by a child, that the previous visa
application made on behalf of the child was valid. This assumption would apply
without a consideration of the age of the child, their relationship with the
person who made the application on their behalf, or an individual assessment of
the extent to which the application was consistent with the wishes of the
child. In the committee's view, to effectively deem the previous application as
valid without considering these factors represented a limitation on the right
of the child to contribute to, or be heard in, judicial and administrative
proceedings. The measures in this bill further limit a child's ability to make
a subsequent visa application and thus further restrict the rights of the
child. This right is not addressed in the statement of compatibility.
1.248
The committee's assessment of the proposed bar on further
applications by children against article 12 of the Convention on the
Rights of the Child (right of the child to be heard in judicial and
administrative proceedings) raises questions as to whether the changes
are compatible with Australia's international human rights law obligations.
1.249
As set out above, extending the bar on further applications by
children and persons with a disability, limits the right of the child to
be heard in judicial and administrative proceedings. As set out above, the
statement of compatibility does not justify that limitation. The committee
therefore requests the Minister for Immigration and Border Protection's advice
on the compatibility of Schedule 3 of the bill with the right of the child to
be heard in judicial and administrative proceedings and, particularly:
-
whether the proposed changes are aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Right of persons with disabilities
to be recognised as persons before the law and to the equal enjoyment of legal
capacity
1.250
Article 12 of the Convention on the Rights of Persons with Disabilities
(CRPD) requires states to refrain from denying persons with disabilities their
legal capacity, and to provide them with access to the support necessary to
enable them to make decisions that have legal effect.
Compatibility of the measures with
the right of persons with disabilities to be recognised as persons before the
law and to the equal enjoyment of legal capacity
1.251
As set out above, the bill provides that the bar on further
applications applies even if the person is both a person with a mental
impairment and makes an application on different protection grounds. The right
of persons with disabilities to be recognised as persons before the law and to
the equal enjoyment of legal capacity is not addressed in the statement of
compatibility. The committee notes that it previously considered the MLA
amendments which introduced these restrictions were likely to be incompatible
with the rights of persons with disabilities to be recognised as persons before
the law and to the equal enjoyment of legal capacity.
1.252
Persons with intellectual and mental impairment may be particularly at
risk as asylum-seekers. Article 12 of the CRPD affirms that all persons with
disabilities have full legal capacity. While support should be given where
necessary to assist a person with disabilities to exercise their legal
capacity, it cannot operate to deny the person legal capacity by substituting
another person to make decisions on their behalf. The UN Committee on the
Rights of Persons with Disabilities has considered the basis on which a person
is often denied legal capacity, which includes where a person's decision-making
skills are considered to be deficient (known as the functional approach). It
has described this approach as flawed:
The functional approach attempts to assess mental capacity
and deny legal capacity accordingly. It is often based on whether a person can
understand the nature and consequences of a decision and/or whether he or she
can use or weigh the relevant information. This approach is flawed for two key
reasons: (a) it is discriminatorily applied to people with disabilities; and
(b) it presumes to be able to accurately assess the inner-workings of the human
mind and, when the person does not pass the assessment, it then denies him or
her a core human right — the right to equal recognition before the law. In all
of those approaches, a person's disability and/or decision-making skills are
taken as legitimate grounds for denying his or her legal capacity and lowering
his or her status as a person before the law. Article 12 does not permit such
discriminatory denial of legal capacity, but, rather, requires that support be
provided in the exercise of legal capacity.[76]
1.253
If a person with an intellectual or mental impairment is not provided
with the support required to make an informed decision about lodging a visa
application and is then barred from making a subsequent visa application
because an application had been lodged 'on their behalf' but without the participation
of the person in that decision-making process (and on different protection
grounds), this limits the right of persons with disabilities to be recognised
as persons before the law and to the equal enjoyment of legal capacity. This
was not addressed in the statement of compatibility.
1.254
The committee's assessment of the proposed bar on further
applications by persons with a mental impairment against article 12 of the
Convention on the Rights of Persons with Disabilities (CRPD) (right of persons
with disabilities to be recognised as persons before the law and to the equal
enjoyment of legal capacity) raises questions as to whether the changes
are compatible with Australia's international human rights law obligations.
1.255
As set out above, extending the bar on further applications by persons
with a mental impairment limits the right of persons with disabilities to be recognised
as persons before the law and to the equal enjoyment of legal capacity. As set
out above, the statement of compatibility does not justify that limitation. The
committee therefore requests the Minister for Immigration and Border
Protection's advice on the compatibility of Schedule 3 of the bill with the
right of persons with disabilities to be recognised as persons before the law
and to the equal enjoyment of legal capacity and, particularly:
-
whether the proposed changes are aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Social Services Legislation Amendment (Family Payments Structural Reform
and Participation Measures) Bill 2015
Portfolio:
Social Services
Introduced: House
of Representatives, 21 October 2015
Purpose
1.256
The Social Services Legislation Amendment (Family Payments Structural
Reform and Participation Measures) Bill 2015 (the bill) seeks to amend the A
New Tax System (Family Assistance) Act 1999 to:
-
increase family tax benefit (FTB) Part A fortnightly rates by
$10.08 for each FTB child in the family up to 19 years of age;
-
restructure FTB Part B by increasing the standard rate by
$1000.10 per year for families with a youngest child aged under one;
introducing a reduced rate of $1000.10 per year for single parent families with
a youngest child aged 13 to 16 years of age and extending the rate to couple
grandparents with an FTB child in this age range; and removing the benefit for
couple families (other than grandparents) with a youngest child 13 years of age
or over; and
-
phase out the FTB Part A and Part B supplements.
1.257
The bill also seeks to amend the Social Security Act 1991 to
increase certain youth allowance and disability support pension fortnightly
rates by approximately $10.44 for recipients under 18 years of age.
1.258
Measures raising human rights concerns or issues are set out below.
Background
1.259
Similar amendments to the FTB Part B reforms in the bill were previously
introduced in the Social Services and Other Legislation Amendment (2014 Budget
Measures No. 2) Bill 2014, which the committee considered in its Ninth
Report of the 44th Parliament and Twelfth Report of the 44th
Parliament.[77]
Reduced rate of Family Tax Benefit Part B
1.260
Schedule 2 of the bill would reduce the rate payable of FTB Part B for
single parent families with a youngest child aged 13 to 16 to $1,000.10 per
year (currently $2,737.50) and would remove FTB Part B for couple families
(other than grandparents) with a youngest child aged 13 or over.
1.261
The committee considers that these changes to FTB Part B engages and
limits the right to social security and right to an adequate standard of
living.
Right to social security
1.262
The right to social security is protected by article 9 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR). This
right 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.
1.263
Access to social security is required when a person has no other income
and has insufficient means to support themselves and their dependents.
Enjoyment of the right requires that sustainable social support schemes are:
-
available to people in need;
-
adequate to support an adequate standard of living and health
care;
-
accessible (providing universal coverage without discrimination
and qualifying and withdrawal conditions that are lawful, reasonable,
proportionate and transparent; and
-
affordable (where contributions are required).
1.264
Under article 2(1) of the ICESCR, Australia has certain obligations in
relation to the right to social security. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps that
might affect the right;
-
the obligation to ensure the right is made available in a
non-discriminatory way; and
-
the obligation to take reasonable measures within its available
resources to progressively secure broader enjoyment of the right.
1.265
Specific situations which are recognised as engaging a person's right to
social security, include health care and sickness; old age; unemployment and
workplace injury; family and child support; paid maternity leave; and
disability support.
Compatibility of the measure with
the right to social security
1.266
The statement of compatibility explains that the measures engage the
right to social security. The statement of compatibility states that:
The objective of the family payment reform measures is to ensure
that the family payments system remains sustainable in the long term. The
United Nations Committee on Economic, Cultural and Social Rights recognises
that a social security scheme should be sustainable, and that the conditions
for benefits must be reasonable and proportionate.[78]
1.267
While ensuring the sustainability of the social security scheme is
likely to be a legitimate objective for the purposes of international human
rights law, a legitimate objective must be supported by a reasoned and
evidence-based explanation. This conforms with the committee's Guidance Note 1,[79] and the
Attorney-General's Department's guidance on the preparation of statements of
compatibility, which states that the 'existence of a legitimate objective must
be identified clearly with supporting reasons and, generally, empirical data to
demonstrate that [it is] important'.[80]
To be capable of justifying a proposed limitation of human rights, a
legitimate objective must address a pressing or substantial concern and not
simply seek an outcome regarded as desirable or convenient. No information is
provided in the statement of compatibility as to why the reforms are necessary
from a fiscal perspective or how the proposed measure will ensure the
sustainability of the social welfare scheme.
1.268
In terms of the proportionality of the measure, the statement of
compatibility states that:
For families with older children, family tax benefit Part B
will be better targeted, encouraging parents to participate in the workforce
when care requirements are reduced. Single parents and couple grandparents will
continue to access a rate of Part B until the end of the calendar year in which
their youngest child turns 16, recognising that these families may have fewer
resources to meet living costs.[81]
1.269
No information is provided as to the impact of these changes on families
and how those families will meet their living expenses with the reduced rates
of FTB Part B or how the measures have been targeted to avoid undue economic
hardship. No information is provided as to why the changes to FTB Part B are
structured around the age of the child and not the income of the family.
Accordingly, no information is provided as to how the measure is the least
rights restrictive way of achieving a legitimate objective.
1.270
The committee's assessment of the reduced rate of family tax
benefit Part B for single income families against article 9 of the
International Covenant on Economic, Social and Cultural Rights (right to social
security) raises questions as to whether the measure is a justifiable
limitation on that right.
1.271
As set out above, the reduced rate of family tax benefit Part B
for single income families engages and limits the right to social security. The
statement of compatibility does not sufficiently justify that limitation for
the purposes of international human rights law. The committee therefore seeks
the advice of the Minister for Social Service 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;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Right to an adequate standard of living
1.272
The right to an adequate standard is guaranteed by article 11(1) of the
ICESCR, and requires state parties to take steps to ensure the availability,
adequacy and accessibility of food, clothing, water and housing for all people
in Australia.
1.273
In respect of the right to an adequate standard of living, article 2(1)
of ICESCR also imposes on Australia the obligations listed above in relation to
the right to social security.
Compatibility of the measure with
the right to an adequate standard of living
1.274
For some low income families receipt of FTB Part B may be important in
realising an adequate standard of living. The measure, in reducing (or
removing) FTB Part B for families with the youngest child aged 13 to 16, may
engage and limit the right to an adequate standard of living.
1.275
The statement of compatibility does not specifically address how the
measures are compatible with the right to an adequate standard of living,
though notes that:
Families with low incomes will also continue to receive
ongoing assistance through various Australian Government payments, which will
assist them in maintaining an adequate standard of living.[82]
1.276
However, family tax payments are an integral part of Australia's social
welfare scheme and critical for many families to provide an adequate standard
of living. [83]
1.277
The committee's usual expectation where a measure may limit a human
right is that the accompanying statement of compatibility provide a reasoned
and evidence-based explanation of how the measure supports a legitimate
objective for the purposes of international human rights law. This conforms
with the committee's Guidance Note 1,[84]
and the Attorney-General's Department's guidance on the preparation of
statements of compatibility, which states that the 'existence of a legitimate
objective must be identified clearly with supporting reasons and, generally,
empirical data to demonstrate that [it is] important'.[85] To be capable of
justifying a proposed limitation of human rights, a legitimate objective must
address a pressing or substantial concern and not simply seek an outcome
regarded as desirable or convenient. Additionally, a limitation must be
rationally connected to, and a proportionate way to achieve, its legitimate
objective in order to be justifiable in international human rights law.
1.278
The committee's assessment of the reduced rate of family tax
benefit Part B for single income families against article 11(1) of the
International Covenant on Economic, Social and Cultural Rights (right to an
adequate standard of living) raises questions as to whether the measure is
compatible with human rights.
1.279
As set out above, the reduced rate of family tax benefit Part B
for single income families engages and may limit the right to an adequate
standard of living. The statement of compatibility does not sufficiently justify
that limitation for the purposes of international human rights law. The
committee therefore seeks the advice of the Minister for Social Service 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;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Removal of family tax benefit supplements
1.280
Schedule 3 of the bill would phase out the FTB Part A supplement by
reducing it to $602.25 a year from 1 July 2016 and to $302.95 a year from 1
July 2017, before withdrawing it entirely from 1 July 2018. The FTB Part B
supplement will be reduced to $302.95 a year from 1 July 2016 and to $153.30 a
year from 1 July 2017, before also being withdrawn from 1 July 2018.
1.281
The FTB Part A and B supplements are components of the rate of family
tax benefit, and are added into the rate after the end of the relevant income
year when certain conditions are satisfied.
1.282
The committee considers that the removal of family tax benefit
supplements engages and limits the right to social security and right to an
adequate standard of living.
Right to social security
1.283
The right to social security is contained within article 9 of the ICESCR.
More information is set out above at paragraphs [1.262] to [1.265].
Compatibility of the measure with
the right to social security
1.284
The statement of compatibility notes that the measure engages the right
to social security and explains that the measures are nevertheless justified.
1.285
In terms of the legitimate objective of the measures, the statement of
compatibility notes that:
The United Nations Committee on Economic, Cultural and Social
Rights has stated that a social security scheme should be sustainable and that
the conditions for benefits must be reasonable, proportionate and transparent.
This right is engaged by the reduction and eventual removal of the end-of-year
supplements for family tax benefit Part A and family tax benefit Part B.
However, this limitation is necessary and proportionate to the legitimate aim
of ensuring that family tax benefit as a social security scheme continues to be
sustainable.[86]
1.286
However, as noted above in relation to Schedule 2 of the bill, while
ensuring the sustainability of the social security scheme is likely to be a
legitimate objective for the purposes of international human rights law, a
legitimate objective must be supported by a reasoned and evidence-based
explanation. No information is provided in the statement of compatibility as to
why the reforms are necessary from a fiscal perspective or how the proposed
measure will ensure the sustainability of the social welfare scheme.
1.287
In terms of proportionality the statement of compatibility notes that:
Families affected by this measure are still eligible to
receive fortnightly payments of family tax benefit to assist with the costs of
raising children.
1.288
While the continued availability of family tax benefit will be important
for many families, this does not explain why removing the family tax benefit
supplement for all families (regardless of income) is proportionate.
1.289
The committee's usual expectation where a limitation on a right is
proposed is that the statement of compatibility provide an assessment of
whether the limitation is reasonable, necessary, and proportionate to achieving
a legitimate objective. The committee notes that to demonstrate that a limitation
is permissible, legislation proponents must provide reasoned and evidence-based
explanations of why the measures are necessary in pursuit of a legitimate
objective.
1.290
The committee's assessment of the removal of family tax benefit
supplements against article 9 of the International Covenant on Economic, Social
and Cultural Rights (right to social security) raises questions as to whether the
measure is compatible with human rights.
1.291
As set out above, the removal of family tax benefit supplements
engages and limits the right to social security. The statement of compatibility
does not sufficiently justify that limitation for the purposes of international
human rights law. The committee therefore seeks the advice of the Minister for
Social Service 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;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Right to an adequate standard of
living
1.292
The right to an adequate standard of living is contained within article
11(1) of the ICESCR. More information is set out above at paragraphs [1.272] to
[1.265].
Compatibility of the measure with
the right to an adequate standard of living
1.293
The statement of compatibility explains that the measure engages the
right to an adequate standard living. However, the statement of compatibility
does not specifically address how the measure is compatible with the right to
an adequate standard of living, though it notes that:
Families affected by this measure are still eligible to
receive fortnightly payments of family tax benefit to assist with the costs of
raising children. The purpose of these fortnightly payments is to ensure an
adequate standard of living for Australian children.[87]
1.294
As noted above in relation to the right to social security, while the
continued availability of family tax benefit will be important for many
families, this does not explain why removing the family tax benefit supplement
for all families is proportionate.
1.295
The committee's usual expectation where a limitation on a right is
proposed is that the statement of compatibility provide an assessment of
whether the limitation is reasonable, necessary, and proportionate to achieving
a legitimate objective. The committee notes that to demonstrate that a
limitation is permissible, legislation proponents must provide reasoned and evidence-based
explanations of why the measures are necessary in pursuit of a legitimate
objective.
1.296
The committee's assessment of the removal of family tax benefit
supplements against article 11(1) of the International Covenant on Economic,
Social and Cultural Rights (right to an adequate standard of living) raises
questions as to whether the measure is compatible with human rights.
1.297
As set out above, the removal of family tax benefit supplements
engages and limits the right to social security and right to an adequate
standard of living. The statement of compatibility does not sufficiently
justify that limitation for the purposes of international human rights law. The
committee therefore seeks the advice of the Minister for Social Services 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;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Building Code (Fitness for Work/Alcohol and Other Drugs in the Workplace)
Amendment Instrument 2015 [F2015L01462]
Portfolio: Employment
Authorising
legislation: Fair Work (Building Industry) Act 2012
Last day to disallow: 3 December 2015 (Senate)
Purpose
1.298
The Building Code (Fitness for Work/Alcohol and Other Drugs in the
Workplace) Amendment Instrument 2015 (the instrument) amends the Building Code
2013 (the Code). The amendments require building contractors or building
industry participants to show the ways in which they are managing drug and
alcohol issues in the workplace in their work health safety and rehabilitation
(WHS&R) management systems. For certain types of building work, to which
the Commonwealth is making a significant contribution, building contractors and
industry participants must also include a fitness for work policy to manage
alcohol and other drugs in the workplace in their management plan for
WHS&R.
1.299
Measures raising human rights concerns or issues are set out below.
Alcohol and drug testing of construction workers
1.300
Schedule 3 of the instrument sets out requirements relating to drug and
alcohol testing that a fitness for work policy must address.
1.301
The committee considers that establishing a policy framework for testing
workers for drugs and alcohol engages and limits the right to privacy.
1.302
The committee also considers the instrument engages the rights of
persons with disabilities under the Convention on the Rights of Persons with
Disabilities, as drug and alcohol dependency is a disability under
international human rights law. However, the committee considers that any
limitation on such rights is likely to be justifiable.
Right to privacy
1.303
Article 17 of the International Covenant on Civil and Political Rights
(ICCPR) prohibits arbitrary or unlawful interferences with an individual's privacy,
family, correspondence or home. The right to privacy includes protection of our
physical selves against invasive action, including:
-
the right to respect for individual sexuality (prohibiting
regulation of private consensual adult sexual activity);
-
the right to personal autonomy and physical and psychological
integrity, including respect for reproductive autonomy and autonomy over one's
own body (including in relation to medical testing); and
-
the prohibition on unlawful and arbitrary state surveillance.
Compatibility of the measure with
the right to privacy
1.304
The statement of compatibility acknowledges that drug and alcohol
testing implemented under the instrument engages the right to privacy. The
statement of compatibility states that drug and alcohol testing is 'legitimate
to seek to eliminate the risk that employees might come to work impaired by
alcohol or drugs such that they could pose a risk to health and safety'[88]
and that:
To the extent that drug and alcohol testing implemented in
accordance with the amending instrument may limit a person’s right to privacy,
the limitation is reasonable, necessary and proportionate in pursuit of the
legitimate policy objective of protecting the right to safe and healthy working
conditions for all workers.[89]
1.305
The committee considers that drug and alcohol-free workplaces are
important in a building and construction context and the measures are likely to
be considered as pursuing a legitimate objective for the purposes of
international human rights law.
1.306
The committee also considers that the measures are rationally connected
to that objective, in that drug and alcohol testing policies may encourage
compliance with the prohibition on drugs and alcohol in the workplace.
1.307
However, it is unclear whether the policy framework for drug and alcohol
policies is proportionate to achieving that objective as, under the policy,
there does not appear to be any safeguards required to be put in place to
protect the privacy of individuals who are subject to testing.
1.308
The fitness for work policy set out in the instrument does not include
any requirements relating to how drug and alcohol tests are to be conducted, whether
any blood, hair or saliva samples might be taken in order to conduct the test,
the procedure for managing test results, and how long samples or records of the
testing will be retained.
1.309
Additionally, the policy framework does not include requirements that
the testing has to be done in the least personally intrusive manner or that the
records be destroyed after a certain period of time.
1.310
The taking and retention of bodily samples for testing purposes can
contain very personal information. The international jurisprudence has noted
that genetic information contains 'much sensitive information
about an individual' and given the nature and amount of personal information
contained in cellular samples 'their retention per se must be regarded as
interfering with the right to respect for the private lives of the individuals
concerned'.[90]
1.311
The instrument is silent as to whether such samples will
be retained and the committee is unaware whether there is other existing
legislation that would govern the retention and destruction of samples taken in
accordance with drug and alcohol policies as required by the instrument.
1.312
This issue was not addressed in the statement of compatibility. The
committee's usual expectation where a measure may limit a human right is that
the accompanying statement of compatibility provide a reasoned and
evidence-based explanation of how the measure supports a legitimate objective,
is rationally connected to that objective and is a proportionate way to achieve
that objective.
1.313
The committee's assessment of the policy framework for the drug
and alcohol testing for construction workers against article 17 of the International
Covenant on Civil and Political Rights (right to privacy) raises questions as
to whether there are effective safeguards in place to protect the privacy of
individuals who are subject to drug and alcohol testing in accordance with the
policies required by the instrument.
1.314
As set out above, the instrument engages and limits the right to
privacy. The statement of compatibility does not sufficiently justify that
limitation for the purposes of international human rights law. The committee
therefore seeks the advice of the Minister for Employment as to whether the
limitation is a reasonable and proportionate measure for the achievement of
that objective, in particular whether there are sufficient safeguards in place
to protect the right to privacy.
Fair Work (State Declarations — employer not to be national system
employer) Endorsement 2015 (No. 1) [F2015L01420]
Portfolio:
Employment
Authorising
legislation: Fair Work Act 2009
Last day to
disallow: This instrument is exempt from disallowance (see
subsection 14(5) of the Fair Work Act 2009)
Purpose
1.315
This instrument endorses a declaration by the New South Wales (NSW) government
that Insurance and Care NSW is not a national system employer for the purposes
of section 14(2) of the Fair Work Act 2009 (Fair Work Act).
1.316
Measures raising human rights concerns or issues are set out below.
Background
1.317
Section 14(1) of the Fair Work Act provides that a national system
employer means any of the following in its capacity as an employer of an
individual:
-
a constitutional corporation;
-
the Commonwealth or a Commonwealth authority;
-
a person who employs a flight crew officer, maritime employee or
waterside worker in connection with constitutional trade or commerce;
-
a body corporate incorporated in a territory; or
-
a person who carries on an activity in a territory and employs a
person in connection with the activity.
1.318
A national system employee is an individual employed by a national
system employer (section 13 of the Fair Work Act).
1.319
The Parliaments of Victoria, South Australia, Tasmania, Queensland and
New South Wales referred power to the Commonwealth Parliament to extend the
Fair Work Act to employers and their employees in these states that are not
already covered by sections 13 and 14. Division 2A and Division 2B of Part 1-3
of the Fair Work Act give effect to state workplace relations references by
extending the meaning of national system employee and national system employer
(sections 30C, 30D, 30M and 30N of the Fair Work Act).
1.320
Section 14(2) of the Fair Work Act allows states and territories to
declare (subject to endorsement by the Commonwealth Minister) that certain
employers over which the Commonwealth would otherwise have jurisdiction are not
national system employers.
1.321
The effect of an endorsement is that an employer specified in it will
not generally be subject to the Fair Work Act and will instead be subject to
the workplace relations arrangements prescribed by the relevant state or
territory. An endorsement has the effect that a specified employer’s employees
are not generally subject to the Fair Work Act, because only employees of
national system employers can be national system employees. However, Parts 6-3
and 6-4 of the Fair Work Act, which relate to unlawful termination of
employment, notice of termination and parental leave and which apply to
employers and employees nationally, will continue to apply.
1.322
This instrument endorses a declaration made under the Industrial
Relations Act 1996 (NSW) that Insurance and Care NSW is not a national
system employer, commencing 9 September 2015.
Alteration of persons' workplace relations arrangements
1.323
The instrument, in removing Insurance and Care NSW as a national system
employer generally subject to the Fair Work Act, will instead see employees of
Insurance and Care NSW subject to the workplace relations arrangements
prescribed by NSW, and so engages and may limit the right to just and
favourable conditions of work.
Right to just and favourable
conditions of work
1.324
The right to work and rights in work are protected by articles 6(1), 7
and 8(1)(a) of the International Covenant on Economic, Social and Cultural
Rights (ICESCR).[91]
1.325
The UN Committee on Economic, Social and Cultural Rights has stated that
the obligations of state parties to the ICESCR in relation to the right to work
include the obligation to ensure individuals their right to freely chosen or
accepted work, including the right not to be deprived of work unfairly,
allowing them to live in dignity. The right to work is understood as the right
to decent work providing an income that allows the worker to support themselves
and their family, and which provides safe and healthy conditions of work.
1.326
Under article 2(1) of ICESCR, Australia has certain obligations in
relation to the right to work. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps
(retrogressive measures) that might affect the right;
-
the obligation to ensure the right is made available in a
non-discriminatory way; and
-
the obligation to take reasonable measures within its available
resources to progressively secure broader enjoyment of the right.
1.327
The right to work may be subject only to such limitations as are
determined by law and compatible with the nature of the right, and solely for
the purpose of promoting the general welfare in a democratic society.
Compatibility of the measure with
the right to just and favourable conditions of work
1.328
The instrument is not accompanied by a statement of compatibility as the
instrument is not specifically required to have such a statement under section
9 of the Human Rights (Parliamentary Scrutiny) Act 2011 (the Act).
However, the committee's role under section 7 of the Act is to examine all
instruments for compatibility with human rights (including instruments that are
not required to have statements of compatibility).
1.329
The explanatory statement to the instrument states:
The effect of an endorsement is that an employer specified in
it will not generally be subject to the Fair Work Act and will instead be
subject to the workplace relations arrangements prescribed by the relevant
State or Territory. An endorsement has the effect that a specified employer’s
employees are not generally subject to the Fair Work Act, because only
employees of national system employers can be national system employees.
However, Parts 6-3 and 6-4 of the Fair Work Act, which relate to unlawful
termination of employment, notice of termination and parental leave and which
apply to employers and employees nationally, will continue to apply.[92]
1.330
The committee notes that to the extent that the NSW workplace relations
arrangements could be less generous than the arrangements under the Fair Work
Act, the measure in the instrument may be regarded as a retrogressive measure.
1.331
Under article 2(1) of the ICESCR, Australia has certain obligations in
relation to economic and social rights. These include an obligation not to
unjustifiably take any backwards steps (retrogressive measures) that might
affect the right to just and favourable conditions of work. A lessening in
workplace relations arrangements available to an employee may therefore be a
retrogressive measure for human rights purposes. A retrogressive measure is not
prohibited so long as it can be demonstrated that the measure is justified.
That is, it addresses a legitimate objective, it is rationally connected to
that objective and it is a proportionate means of achieving that objective.
1.332
The committee's assessment of the instrument against the
International Covenant on Economic, Social and Cultural Rights (ICESCR) raises
questions as to whether the instrument promotes or limits the right to just and
favourable conditions of work.
1.333
The committee therefore seeks the advice of the Minister for
Employment as to the existence of any differences between the workplace
relations arrangements under the Fair Work Act 2009 and those under NSW
law and whether the instrument promotes or limits the right to just and
favourable conditions of work.
Migration Amendment (Conversion of Protection Visa Applications) Regulation
2015 [F2015L01461]
Portfolio: Immigration and Border
Protection
Authorising
legislation: Migration Act 1958
Last day to disallow: 3 December 2015 (Senate)
Purpose
1.334
The Migration Amendment (Conversion of Protection Visa Applications)
Regulation 2015 (the regulation) amends the Migration Regulations 1994 to confirm
that the effect of regulation 2.08F is to provide that any application made by
certain visa applicants for a Permanent Protection Visa (PPV) will be converted
into an application for a Temporary Protection Visa (TPV).
1.335
Measures raising human rights concerns or issues are set out below.
Background
1.336
The instrument concerns the operation of regulation 2.08F of the Migration
Regulations 1994. This regulation was inserted by the Migration and Maritime
Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014
(RALC Act), which commenced on 16 December 2014.
1.337
The committee considered the Migration and Maritime Powers Legislation
Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (RALC bill) in
its Fourteenth Report of the 44th Parliament.[93]
Conversion of permanent protection visa applications into temporary
protection visa applications
1.338
The regulation amends regulation 2.08F of the Migration Regulations 2004,
which provides that certain applications for a PPV made before 16 December
2014 are to be converted to applications for a TPV. The amendment will
affect persons whose application for a PPV was made before
16 December 2014 and:
-
has been the subject of a court order requiring the minister to
reconsider the application;
-
has been remitted to the minister for reconsideration by the
Administrative Appeals Tribunal; or
-
had not been decided by the minister before 16 December 2014 (due
to, for example, a remittal from the Administrative Appeals Tribunal or a
court).
1.339
The effect of the conversion is that people covered by the amendment who
have applied for a PPV will be considered to have never applied for a PPV and
will be taken to have applied for a TPV, and will only be granted temporary
protection in Australia if found to engage Australia's protection obligations.
1.340
The regulation, in converting PPV applications to TPV applications,
engages a number of human rights, including non-refoulement obligations; the right
to health; the right to protection of the family; the obligation to consider
the best interests of the child and the right to freedom of movement. These
rights are considered in detail below.
Non-refoulement obligations
1.341
Australia has non-refoulement obligations under the Refugee Convention
for refugees, and under both the International Covenant on Civil and Political
Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) for people who are found not to be
refugees.[94]
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.[95]
1.342
Non-refoulement obligations are absolute and may not be subject to any
limitations.
1.343
Effective and impartial review by a court or tribunal of decisions to
deport or remove a person, including merits review in the Australian context,
is integral to complying with non-refoulement obligations.[96]
1.344
Australia gives effect to its non-refoulement obligations principally
through the Migration Act. In particular, section 36 of the Migration Act sets
out the criteria for the grant of a protection visa.
Compatibility of the measure with non-refoulement
obligations
1.345
The changes under the regulation provide for the conversion of existing
applications for PPVs into applications for TPVs.
1.346
TPVs are granted for a period of up to three years at one time, rather
than being permanent as is the case with PPVs.[97]
The statement of compatibility acknowledges that TPVs engage Australia's
non-refoulement obligations, but states that the amendments:
... will not result in
the return or removal of persons found to engage Australia’s protection
obligations in contravention of its non-refoulement obligations. The position
of the Government has always been that grant of a protection visa is not the
only way of giving protection to persons who engage Australia’s protection
obligations, and that grant of a temporary visa is a viable alternative.[98]
1.347
However, TPVs require refugees to prove afresh their claims for
protection every three years. The international legal framework does provide
for the cessation of refugee status or protection obligations where, for example,
the conditions in the person’s country of origin have materially altered such
that the reasons for a person becoming a refugee have ceased to exist. However,
as noted by the the United Nations High Commissioner for Refugees, the
international protection regime 'does not envisage a potential loss of status
triggered by the expiration of domestic visa arrangements,'[99]
which is to say the expiry of a visa should not, of itself, affect a person's
refugee status.
1.348
The statement of compatibility has not addressed whether there will be
sufficient safeguards in place to ensure that any reapplication process takes
account of the risk of refoulement if the person is denied continuing
protection. In addition, while the statement of compatibility states that the
grant of a visa is not the only way of giving protection to persons, the
committee reiterates its long-standing view that administrative and discretionary
safeguards are less stringent than the protection of statutory processes, and
are insufficient in and of themselves to satisfy the standards of 'independent,
effective and impartial' review required to comply with Australia’s
non-refoulement obligations under the ICCPR and the CAT.[100]
1.349
The committee's assessment of the conversion of permanent protection
visa applications into temporary protection visa applications against article
3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, articles 6(1) and 7 of the International Covenant on
Civil and Political Rights; and Second Optional Protocol to the International
Covenant on Civil and Political Rights Aiming at the Abolition of the Death
Penalty (non-refoulement) raises questions as to whether the changes are
compatible with Australia's international human rights law obligations.
1.350
The committee therefore seeks the advice of the Minister for
Immigration and Border Protection as to how, in light of the committee's
concerns raised above, the changes are compatible with Australia's absolute non-refoulement
obligations.
Right to health
1.351
The right to health is guaranteed by article 12(1) of the International
Covenant on Economic, Social and Cultural Rights (ICESCR), and is fundamental
to the exercise of other human rights. The right to health is understood as the
right to enjoy the highest attainable standard of physical and mental health,
and to have access to adequate health care and live in conditions that promote
a healthy life (including, for example, safe and healthy working conditions;
access to safe drinking water; adequate sanitation; adequate supply of safe
food, nutrition and housing; healthy occupational and environmental conditions;
and access to health-related education and information).
1.352
Under article 2(1) of the ICESCR, Australia has certain obligations in
relation to the right to health. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps that
might affect the right;
-
the obligation to ensure the right is made available in a non-discriminatory
way; and
-
the obligation to take reasonable measures within its available
resources to progressively secure broader enjoyment of the right.
1.353
Under article 4 of the ICESCR, economic, social and cultural rights may
be subject only to such limitations as are determined by law and compatible
with the nature of those rights, and solely for the purpose of promoting the
general welfare in a democratic society. Such limitations must be proportionate
to the achievement of a legitimate objective, and must be the least restrictive
alternative where several types of limitations are available.
Compatibility of the measure with the
right to health
1.354
As noted above, the changes made by the regulation confirm the
conversion of existing applications for PPVs into applications for TPVs.
1.355
The right to health was not addressed in the statement of compatibility
for the regulation, and instead the statement of compatibility refers to the
discussion of these issues in the statement of compatibility for the RALC bill.
The statement of compatibility for the RALC bill noted that, under the new
arrangements, people who were found to engage Australia’s non-refoulement
obligations would be granted a TPV for a period of up to three years at one
time (rather than a permanent protection visa).[101] The statement of
compatibility noted that the right to health was engaged by the amendments, and
that TPV holders are entitled to access Medicare and the Australian public
health system.[102]
1.356
The committee's usual expectation where a measure may limit a human
right is that the accompanying statement of compatibility provide a reasoned
and evidence-based explanation of how the measure supports a legitimate
objective for the purposes of international human rights law. This conforms with
the committee's Guidance Note 1, and the Attorney-General's Department's
guidance on the preparation of statements of compatibility, which states that
the 'existence of a legitimate objective must be identified clearly with
supporting reasons and, generally, empirical data to demonstrate that [it is]
important'. To be capable of justifying a proposed limitation of human rights,
a legitimate objective must address a pressing or substantial concern and not
simply seek an outcome regarded as desirable or convenient. Additionally, a
limitation must be rationally connected to, and a proportionate way to achieve,
its legitimate objective in order to be justifiable in international human
rights law.
1.357
The practical operation and consequences of TPVs may have significant
adverse consequences for the health of TPV holders. TPVs require refugees to
prove afresh their claims for protection every three years. Research shows that
TPVs lead to insecurity and uncertainty for refugees which, in turn, may cause
or exacerbate existing mental health problems, or cause anxiety and
psychological suffering. Such research indicates that restrictions on family
reunion places further stress on TPV holders which may lead to mental health
problems.[103]
This regulation expands the class of people who would become TPV holders,
rather than holders of a PPV, and as such, engages and limits the right to
health, which includes mental health. The committee also notes that while
access to Medicare is clearly an important aspect of protecting the right to
health, it does not fully mitigate against the health-related harm
(particularly psychological harm) that may be caused to individuals through the
issuing of TPVs rather than providing permanent protection. These issues were
not addressed in the statements of compatibility for either the RALC bill or
this regulation.
1.358
The committee's assessment of the conversion of permanent protection
visa applications into temporary protection visa applications against article
12(1) of the International Covenant on Economic, Social and Cultural Rights raises
questions as to whether the changes are compatible with the right to health.
1.359
As set out above, converting permanent protection
visa applications into temporary protection visa applications, limits
the right to health. The statement of compatibility does not justify that
limitation for the purposes of international human rights law. The
committee therefore seeks the advice of the Minister for Immigration and Border
Protection as to:
-
whether the proposed changes are aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Right to protection of the family
1.360
The right to respect for the family is protected by articles 17 and 23
of the ICCPR and article 10 of the ICESCR. Under these articles, the family is
recognised as the natural and fundamental group unit of society and, as such, is
entitled to protection.
1.361
An important element of protection of the family, arising from the
prohibition under article 17 of the ICCPR against unlawful or arbitrary
interference with family, is to ensure family members are not involuntarily
separated from one another. Laws and measures which prevent family members from
being together, impose long periods of separation, or forcibly remove children
from their parents, will engage this right.
Obligation to consider the best
interests of the child
1.362
Under the Convention on the Rights of the Child (CRC), Australia is
required to ensure that, in all actions concerning children, the best interests
of the child is a primary consideration.[104]
1.363
This principle requires active measures to protect children's rights and
promote their survival, growth, and wellbeing, as well as measures to support
and assist parents and others who have day-to-day responsibility for ensuring
recognition of children's rights. It requires legislative, administrative and
judicial bodies and institutions to systematically consider how children's
rights and interests are or will be affected directly or indirectly by their
decisions and actions.[105]
1.364
The committee notes that, while there is no universal right to family
reunification, article 10 of the CRC nevertheless obliges Australia to deal
with applications by minors for family reunification in a positive, humane and
expeditious manner. This obligation is consistent with articles 17 and 23 of
the ICCPR, which prohibit interference with the family, and require family
unity to be protected by society and the state.
Compatibility of the measure with
the right to protection of the family and the obligation to consider the best
interests of the child
1.365
The statement of compatibility for the RALC bill explained that:
The temporary protection regime provides that
refugees granted temporary protection visas are not eligible to sponsor family
members.[106]
1.366
This has the consequence that a person holding a TPV cannot
access family reunion and, if separated from their close family members, will
remain so separated while holding a TPV. Converting all PPV applications into
TPV applications will mean that those grant a TPV will be unable to access
family reunion, regardless of whether this would result in permanent family
separation and whether this is in the best interests of the child.
1.367
The committee notes that the right to protection of the family and the obligation
to consider the best interests of the child as a primary consideration may only
be limited if the measure is reasonable, necessary and proportionate in pursuit
of a legitimate objective.
1.368
The statements of compatibility for both the RALC bill and this
regulation do not address these issues. As set out above, committee's usual
expectation where a limitation on a right is proposed is that the statement of
compatibility provide an assessment of whether the limitation is reasonable,
necessary, and proportionate to achieving a legitimate objective. The committee
notes that to demonstrate that a limitation is permissible, legislation
proponents must provide reasoned and evidence-based explanations of why the
measures are necessary in pursuit of a legitimate objective.
1.369
The committee's assessment of the conversion of permanent protection
visa applications into temporary protection visa applications against articles
17 and 23 of the International Covenant on Civil and Political Rights and
article 10 of the International Covenant on Economic, Social and Cultural
Rights (right to protection of the family) and the Convention on the Rights of
the Child (obligation to consider the best interests of the child) raises
questions as to whether the measures are justifiable under international human
rights law.
1.370
As set out above, converting permanent protection
visa applications into temporary protection visa applications, limits
the right to protection of the family and the obligation to consider the
best interests of the child. The statement of compatibility does not justify
that limitation for the purposes of international human rights law. The
committee therefore seeks the advice of the Minister for Immigration and Border
Protection as to:
-
whether the proposed changes are aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate measure
for the achievement of that objective.
Right to freedom of movement
1.371
Article 12 of the ICCPR protects freedom of movement. The right to
freedom of movement includes the right to move freely within a country for
those who are lawfully within the country, the right to leave any country and
the right to enter a country of which you are a citizen. The right may be
restricted in certain circumstances.
1.372
The right to freedom of movement is linked to the right to liberty – a
person's movement across borders should not be unreasonably limited by the
state. It also encompasses freedom from procedural impediments, such as
unreasonable restrictions on accessing public places.
1.373
The right to freedom of movement also includes a right to leave
Australia, either temporarily or permanently. This applies to both Australian
citizens and non-citizens. As international travel requires the use of
passports, the right to freedom of movement encompasses the right to obtain
necessary travel documents without unreasonable delay or cost.
1.374
Limitations can be placed on the right as long as they are lawful and
proportionate. Particular examples of the reasons for such limitations include
the need to protect public order, public health, national security or the
rights of others.
Compatibility of the measure with
the right to freedom of movement
1.375
A TPV only allows a visa holder to travel in compassionate and
compelling circumstances, as approved by the minister in writing, and to places
other than the country in respect of which protection was sought.[107]
1.376
The right to leave a country is a right both to legally leave the
country as well as practically leave the country. It applies not just to
departure for permanent emigration but also for the purpose of travelling
abroad. States are required to provide necessary travel documents to ensure
this right can be realised.[108]
A person who has been recognised as a refugee but does not have the necessary
travel documents that would allow them to travel (and return to Australia at
the conclusion of their travel) is not able to practically realise their right
to leave the country. This right applies to every person lawfully within
Australia, including those who have been recognised as refugees. The committee
therefore considers that the right to freedom of movement is engaged and
limited by the measure.
1.377
This right was not addressed in the statement of compatibility. As set
out above, the committee's usual expectation where a limitation on a right is
proposed is that the statement of compatibility provide an assessment of
whether the limitation is reasonable, necessary, and proportionate to achieving
a legitimate objective. The committee notes that to demonstrate that a
limitation is permissible, legislation proponents must provide reasoned and
evidence-based explanations of why the measures are necessary in pursuit of a
legitimate objective.
1.378
The committee's assessment of the conversion of permanent protection
visa applications into temporary protection visa applications against article
12 of the International Covenant on Civil and Political Rights raises questions
as to whether the measures are justifiable under international human rights law.
1.379
As set out above, converting permanent protection
visa applications into temporary protection visa applications, limits
the right to freedom of movement. The statement of compatibility does
not justify that limitation for the purposes of international human rights law.
The committee therefore seeks the advice of the Minister for Immigration
and Border Protection as to:
-
whether the proposed changes are aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is a reasonable and proportionate
measure for the achievement of that objective.
Radiocommunications (27 MHz Handphone Stations) Class Licence 2015
[F2015L01441]
Portfolio: Communications
Authorising
legislation: Radiocommunications Act 1992
Last day to disallow: 2 December 2015 (Senate)
Purpose
1.380
The Radiocommunications (27 MHz Handphone Stations) Class Licence
2015 (27 MHz Class Licence) revokes and replaces the Radiocommunications
(27 MHz Handphone Stations) Class Licence 2002 (2002 Class Licence).
1.381
The use of handphone stations on specified carrier frequencies in the
27 MHZ band is subject to the regulatory arrangements set out in the 27
MHz Class Licence. The 27 MHz Class Licence also sets out the conditions for
operating 27 MHz handphone stations. 27 MHz handphone stations are typically
used by bushwalkers or in the conduct of sporting events and other group
activities.
1.382
Measures raising human rights concerns or issues are set out below.
Conditions of 27 MHz Class Licence not to seriously alarm or affront a
person
1.383
The 27 MHz Class Licence sets out the general conditions which apply to
a person operating a 27 MHz headphone station, including that a person must
not operate the station:
- in a way that would be likely to cause a
reasonable person, justifiably in all the circumstances, to be seriously
alarmed or seriously affronted; or
-
for the purposes of harassing a person.
1.384
A person who operates the station in a way that causes a reasonable
person to be 'seriously alarmed or seriously affronted' may be liable to
imprisonment for up to two years.[109]
1.385
The committee considers that this condition limits the right to freedom
of expression.
Right to freedom of expression
1.386
The right to freedom of opinion and expression is protected by article
19 of the International Covenant on Civil and Political Rights (ICCPR). The
right to freedom of opinion is the right to hold opinions without interference
and cannot be subject to any exception or restriction. The right to freedom of
expression extends to the communication of information or ideas through any
medium, including written and oral communications, the media, public protest,
broadcasting, artistic works and commercial advertising.
1.387
Under article 19(3), freedom of expression may be subject to limitations
that are necessary to protect the rights or reputations of others, national
security, public order, or public health or morals. Limitations must be
prescribed by law, pursue a legitimate objective, be rationally connected to
the achievement of that objective and a proportionate means of doing so.[110]
Compatibility of the measure with
the right to freedom of expression
1.388
The statement of compatibility acknowledges that the relevant condition
of the class licence engages and limits the right to freedom of expression but
argues that this limitation is justifiable.[111]
The statement of compatibility provides:
The ACMA believes it is prudent to limit freedom of
expression when granting the right to use a 27 MHz
handphone station in order to meet the legitimate objectives of protecting
public order and public morality...
People using the devices may be communicating with people
they know or do not know and can use the device to transmit and receive on
publicly available frequencies. In this circumstance, it is possible that a
person may use the device to incite crime, violence or mass panic, and thereby
cause a reasonable person, justifiably in all circumstances, to be seriously
alarmed or affronted. Thus, in part, the limitation on freedom of expression is
necessary and appropriate to ensure public order...
The protection of individuals from harassment through unsolicited
communication is a legitimate objective and the ACMA considers that it is
reasonable and appropriate to limit the right granted to use such devices [27
MHz handphone stations] to deter harassing speech.[112]
1.389
The committee agrees that if the objective behind the measure is to
protect public order, this objective may be regarded as a legitimate objective
for the purposes of international human rights law. However, protecting
individuals from unsolicited communication may not necessarily meet the test for
a legitimate objective as the statement of compatibility does not explain how
this is a pressing and substantial concern.
1.390
The proposed conditions may be rationally connected to the stated
objective as the licence condition would appear capable of discouraging
individuals using a 27 MHz handphone station to harass or alarm others.
However, a condition prohibiting speech that could cause a person to be
seriously alarmed or affronted goes much further than is necessary to maintain
public order. A key aspect of whether a limitation on a right can be justified
is whether the limitation is proportionate to the objective being sought,
including whether there are less restrictive ways to achieve the same aim.
1.391
Maintaining public order is a basis on which it may be permissible to
regulate speech in public places. Common 'public order' limitations include
prohibiting speech which may incite crime, violence or mass panic. However,
speech that merely alarms or affronts (even if it 'seriously' alarms or
affronts a person) would not generally be sufficient to justify limiting
freedom of expression. In this context, the committee notes the statement of
compatibility provides that the instrument's limitation on freedom of
expression is necessary and appropriate to ensure public order.[113]
However, speech which may incite crime, violence or mass panic are already
criminalised under existing law. Indeed, the statement of compatibility itself
refers to the prohibition in section 474.17 of the Criminal Code Act 1995,
stating that these conditions are consistent with this provision. That section
makes it an offence for a person to use a carriage service in a way that a
reasonable person would regard as being menacing, harassing or offensive. A
'carriage service' would include the operation of a 27 MHz headphone station.[114]
As there is already a broad offence in the Criminal Code there appears no need
to include the provision as a condition of the licence (breach of which becomes
a criminal offence).
1.392
While the statement of compatibility refers only to seeking to prevent
incitement of crime, violence or mass panic, the condition itself, not to
seriously 'alarm or affront' a person, is much broader. It would prohibit
speech that might be simply offensive to a person, such that they feel seriously
affronted, but which has no link to crime, violence or the causation of mass
panic. The right to freedom of expression includes a right to use expression
'that may be regarded as deeply offensive'.[115]
The right to freedom of expression protects not only favourable information and
ideas but also those that offend, shock or disturb because 'such are the
demands of that pluralism, tolerance and broadmindedness without which there is
no democratic society'.[116]
1.393
In order to limit the right to freedom of expression it must be
demonstrated that there is a specific threat that requires action which limits
freedom of speech, and it must be demonstrated that there is a direct and
immediate connection between the expression and the threat.[117]
The broad nature of the wording of the condition would not appear to meet this
criteria.
1.394
The committee considers that the statement of compatibility has not
demonstrated that the conditions in 27 MHz Class Licence not to seriously alarm
or affront a person impose a necessary or proportionate limitation on the right
to freedom of expression.
1.395
The committee's assessment against article 19 of the
International Covenant on Civil and Political Rights (right to freedom of
expression) of the conditions in 27 MHz Class Licences not to seriously alarm
or affront a person raises questions as to whether the condition is compatible
with the right to freedom of expression.
1.396
The committee considers that the conditions in 27 MHz Class Licences
not to seriously alarm or affront a person engage and limit the right to
freedom of expression. As noted above, the statement of compatibility has not
sufficiently justified this limitation for the purposes of international human
rights law. The committee therefore seeks the advice of the Minister for
Communications as to whether the conditions are a proportionate means to
achieving the stated objective.
Further response required
1.397
The committee seeks a further response from the relevant minister or
legislation proponent with respect to the following bills and instruments.
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014
Portfolio:
Attorney-General
Introduced:
Senate, 24 September 2014
Purpose
1.398
The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014
(the bill) sought to make amendments to a number of Acts, primarily the Crimes
(Foreign Incursions and Recruitment) Act 1978, the Criminal Code Act
1995, the Crimes Act 1914, the Australian Security Intelligence
Organisation Act 1979, the Intelligence Services Act 2001, the Telecommunications
(Interception and Access) Act 1979, the Australian Passports Act 2005,
the Foreign Passports (Law Enforcement and Security) Act 2005, the Terrorism
Insurance Act 2003, the Customs Act 1901, the Anti-Money
Laundering and Counter-Terrorism Financing Act 2006, the Migration Act
1958, the Foreign Evidence Act 1994, the A New Tax System (Family
Assistance) Act 1999, the Paid Parental Leave Act 2010, the Social
Security Act 1991 and the Social Security (Administration) Act 1999.
1.399
The bill also seeks to make consequential amendments to the Administrative
Decisions (Judicial Review) Act 1977, the Sea Installations Act 1987,
the National Health Security Act 2007, the Proceeds of Crime Act 2001
and the AusCheck Act 2007.
1.400
Key amendments in the bill are set out below.
1.401
Schedule 1 of the bill sought to:
-
amend the Anti-Money Laundering and Counter-Terrorism Financing
Act 2006 (AML/CTF Act) to expand Australian Transaction Reports and
Analysis Centre's (AUSTRAC) ability to share information;
-
amend the Australian Passports Act 2005 (Passports Act) to
introduce a power to suspend a person's Australian travel documents for 14 days
and introduce a mechanism to provide that a person is not required to be
notified of a passport refusal or cancellation decision by the Minister for
Foreign Affairs;
-
amend the Australian Security Intelligence Organisation Act
1979 (ASIO Act) in relation to the power to use force in the execution of a
questioning warrant, and provide for the continuation of the questioning and
questioning and detention warrant regime for a further 10 years;
-
amend the Crimes Act 1914 (Crimes Act) to:
-
introduce a delayed notification search warrant scheme for
terrorism offences;
-
extend the operation of the powers in relation to terrorist acts
and terrorism offences for a further 10 years;
-
lower the legal threshold for arrest of a person without a
warrant for terrorism offences and the new advocating terrorism offence;
-
amend the Criminal Code Act 1995 (Criminal Code Act) to:
-
limit the defence of humanitarian aid for the offence of treason
to instances where the person did the act for the sole purpose of providing
humanitarian aid;
-
create a new offence of 'advocating terrorism';
-
make various amendments to the terrorist organisation listing
provisions;
-
amend the terrorist organisation training offences;
-
extend the control order regime for a further 10 years and make
additional amendments to the regime;
-
extend the preventative detention order (PDO) regime for a
further 10 years and make additional amendments to the regime;
-
make various amendments to the Crimes (Foreign Incursions and
Recruitment) Act 1978;
-
amend the Foreign Evidence Act 1994 to increase the court's
authority to admit material obtained from overseas in terrorism-related
proceedings; and
-
amend the Foreign Passports (Law Enforcement and Security) Act
2005 to introduce a 14-day foreign travel document seizure mechanism.
1.402
Schedule 2 of the bill sought to amend the A New Tax System (Family
Assistance) Act 1999, Paid Parental Leave Act 2010 and the Social
Security Act 1991 to provide for the cancellation of a number of social
welfare payments for individuals on security grounds.
1.403
Schedule 3 of the bill sought to amend the Customs Act 1901 to
expand the detention power of customs officials.
1.404
Schedule 4 of the bill sought to amend the Migration Act 1958 to
include an emergency visa cancellation power.
1.405
Schedule 5 sought to amend the Migration Act 1958 to enable
automated border processing control systems, such as SmartGate or eGates, to
obtain personal identifiers (specifically an image of a person's face and
shoulders) from all persons who use those systems.
1.406
Schedule 6 sought to amend the Migration Act 1958 to extend the
Advance Passenger Processing (APP) arrangement, which currently applies to
arriving air and maritime travellers, to departing air and maritime travellers.
1.407
Schedule 7 sought to amend the Migration Act 1958 to grant the
Department of Immigration and Border Protection (DIBP) the power to retain
documents presented that it suspects are bogus.
Background
1.408
The committee recognises the importance of ensuring that national
security and law enforcement agencies have the necessary powers to protect the
security of all Australians. Moreover, the committee recognises the specific
importance of protecting Australians from terrorism.
1.409
The committee notes that international human rights law allows for
reasonable limits to be placed on most rights and freedoms, although some
absolute rights cannot be limited.[118]
All other rights may be limited as long as the limitation is reasonable,
necessary and proportionate to the achievement of a legitimate objective. This
is the analytical framework the committee applies when exercising it statutory
function of examining bills for compatibility with human rights.
1.410
The committee reported on the bill in its Fourteenth Report of the 44th
Parliament.[119]
The bill passed both Houses of Parliament and received Royal Assent on
3 November 2014.
1.411
The committee then considered the Attorney-General's response in its Nineteenth
Report of the 44th Parliament, and concluded its examination of
a number of measures in the bill.[120]
The committee requested further information from the Attorney-General in
relation to certain measures in Schedule 1 and Schedule 2.
National security laws and indirect discrimination
Right to equality and
non-discrimination
1.412
The committee previously requested the advice of the Attorney-General as
to whether the operation of the counter-terrorism laws will, in practice, be
compatible with the rights to equality and non-discrimination, with particular
attention to the issue of indirect discrimination.
1.413
The committee noted that the UN Committee on the
Elimination of Racial Discrimination has previously raised concerns that
counter-terrorism legislation in Australia may disproportionately
affect Arab and Muslim Australians.[121]
In its most recent concluding observation on Australia, that committee emphasised Australia’s obligation 'to ensure that measures
directed at combating terrorism do not discriminate in purpose or effect
on grounds of race, colour, descent, or national or ethnic origin'[122]
(emphasis added).
1.414
The committee noted that the Attorney-General's response
identified the cultural awareness training that law enforcement officers
receive as supporting the non-discriminatory application of the law. However,
no information was provided as to the specific nature or content of the
training, or its effectiveness.
1.415
The committee considered that more information was required to
explain how Australia's counter-terrorism laws are enforced in a
non-discriminatory manner. Specifically, information as to how the government
is addressing the UN concerns that measures directed at combating terrorism do
not indirectly discriminate would assist the committee in its assessment of the
bill.
1.416
The committee therefore requested the further advice of the
Attorney-General as to whether the operation of the counter-terrorism laws
would, in practice, be compatible with the rights to equality and
non-discrimination. In particular, the committee requested information
regarding specific policy and administrative arrangements, and any relevant
training or guidance, that applies to law enforcement officers in exercising
the expanded and amended powers.
Attorney-General's response
National security law and
indirect discrimination
Right to equality and
non-discrimination
The Committee has requested further advice as to whether the
operation of the counterterrorism laws will, in practice, be compatible with
the rights to equality and non-discrimination. In particular, the Committee has
requested information regarding specific policy and administrative
arrangements, and any relevant training or guidance, that applies to law
enforcement officers in exercising the expanded or amended powers.
As noted in my response to the Committee of 17 February 2015,
the enforcement of counter-terrorism laws is subject to the operations of a
number of government agencies, principally the Australian Security Intelligence
Organisation (ASIO), the Australian Federal Police (AFP) and the Australian
Border Force (ABF) (previously known as the Australian Customs and Border
Protection Service (ACBPS)).
With regards to ASIO special powers relating to terrorism
offences, section 34C(1) of the Australian Security Intelligence
Organisation Act 1979 (ASIO Act) requires the Director-General to prepare a
written statement of procedures to be followed in the exercise of ASIO's
questioning and questioning and detention warrants under Division 3 Part III of
the ASIO Act.
The current statement of procedures, which is a legislative
instrument, was approved by the former Attorney-General Philip Ruddock in 2006
and is publicly available on the Federal Register of Legislative Instruments. A
copy of the statement of procedures is at Annexure A.
In addition to the statement of procedures, ASIO has drafted
and complies with extensive internal policies and procedures relating to the
implementation of questioning and questioning and detention warrants. ASIO also
has administrative arrangements in place with the AFP in relation to the
exercise of powers conferred by ASIO's questioning and questioning and
detention warrants.
ASIO are also subject to the Attorney-General's guidelines
issued pursuant to section 8A of the ASIO Act, which must be observed by ASIO
in the performance of its functions. A copy of the guidelines is at Annexure
B. Paragraph 10.4 of the guidelines requires ASIO to, wherever possible,
collect information using the least intrusive techniques and to undertake
inquiries and investigations with due regard to cultural values, mores and
sensitivities of individuals of particular cultural or racial backgrounds,
consistent with the national interest.
ASIO staff members are required to comply with ASIO's
Professional Conduct and and Behaviour Strategy which takes a multifaceted
approach to addressing all forms of inappropriate behaviour including
discrimination and harassment. Staff members are able to undertake a range of
training courses relating to cultural awareness and understanding.
The AFP's approach to equality and non-discrimination begins
with its people. A strong focus of recruitment in recent years has been
attracting people from diverse cultural and linguistic backgrounds so that the
AFP workforce best reflects the diverse community that it serves.
Beyond this and irrespective of background or rank, all AFP
appointees are subject to the AFP Integrity Framework which encompasses four
pillars: prevention, detection, investigation/response and continuous learning.
Part V of the Australian Federal Police Act 1979 (Cth) (AFP Act) sets
the professional standards of the AFP and establishes procedures by which AFP
conduct and practice issues may be raised and dealt with, including holding AFP
appointees to account for any action that may amount to discrimination.
The AFP's Commissioner's Order on Professional Standards
(C02) sets out the standards expected of AFP appointees both in the performance
of their duties and off-duty conduct. The AFP Core Values and the AFP Code of
Conduct require all AFP appointees to exercise their powers and conduct
themselves in accordance with legal obligations and the professional standards
expected by the AFP, the Government and the broader community, including acting
in a non-discriminatory manner. The AFP Code of Conduct provides that an AFP
appointee must act with fairness, reasonableness, courtesy and respect, and
without discrimination or harassment, in the course of AFP duties. Every member
exercising police powers makes an oath of office in which the member affirms
that they will faithfully and diligently exercise and perform all powers and
duties as a sworn member without 'fear or favour' and 'affection or ill will.'
The AFP employment character guideline also defines the
minimum AFP character standards for potential applicants across all AFP roles
and responsibilities. Applicants are assessed per subsection 24(2) of the AFP
Act in relation to their character and his/her ability to comply with the AFP's
professional standards both in an official and private capacity.
The AFP College, via Learning & Development, develops and
conducts cultural and language programs, including the Islamic Awareness
Workshop. These workshops address Islamic beliefs, culture, doctrine, history
and current issues as well as incorporating presentations on Muslim
communities. These workshops are delivered across Australia and focus on the
non-discriminatory application of the law through cultural understanding and
respecting the Muslim community in order to achieve mutual goals through
fairness and collaboration.
The AFP conducts training for its appointees as an ongoing
priority in relation to any significant body of legislative change and this has
recently included the new powers and offences as a result of the Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014 (Cth) (Foreign Fighters
Act).
There is mandatory online legislation training (regarding the
above Act) for members of the Counter-Terrorism Portfolio and the new
legislation and associated powers/offences have been integrated into the AFP's
Counter-Terrorism Investigators Workshop (CTIW) and Advanced Counter-Terrorism
Investigator Program (ACTIP). AFP Learning & Development Portfolio conducts
these programs.
For example, the CTIW has been delivered once in 2015 with an
additional four planned for the 2015-16 financial year. Two ACTIPs are planned
to be delivered in Sydney and Melbourne in 2015 and one in Brisbane in the
first half of 2016.
AFP's Counter Terrorism Portfolio in conjunction with AFP
Legal have also delivered 'CT roadshows' across Australia to each Joint
Counter-Terrorism Team (JCTT members include AFP, state police and intelligence
partners) as well as other AFP appointees in general regarding powers and
offences under the Foreign Fighters Act.
Since the enactment of the Foreign Fighters Act, the AFP has
developed an extensive range of supporting governance, advisory documents and
training tools to address powers afforded to the AFP under the Act, including:
-
delayed notification search
warrants
-
new arrest thresholds and offences
-
preventative detention orders
-
control orders, and
-
stop search and seize powers.
The AFP Investigator's Toolkit (the toolkit) is the central
resource for AFP appointees to access information, templates, forms and guides
relating to AFP investigations. The toolkit has a specific page dedicated to
counter-terrorism investigations providing up-to-date and continuously revised
information, inclusive of the provisions of the Foreign Fighters Act and the Counter-Terrorism
Legislation Amendment Act (No. 1) 2014. For example, within the toolkit the
following resources can be found:
-
AFP National Guideline on delayed
notification search warrants
-
AFP National Guideline on control
orders
-
AFP Commissioner delegations for
the purposes of Part 1AAA Crimes Act 1914
-
AFP Operational Summary of the
Foreign Fighters Act, and
-
The AFP Pocketbook Guide for
Counter-Terrorism Investigations.
In April 2015 the AFP's Pocketbook Guide for
Counter-Terrorism Investigations (V5) was updated to set out key Commonwealth
powers available to police under the Crimes Act 1914 (Cth) and the Criminal
Code Act 1995 (Cth), as well as other powers and offences that may be
applicable in Australian-based counter terrorism operations. This Pocketbook
Guide has been widely distributed within the AFP. The AFP also advises that AFP
National Guidelines are currently in the process of being amended by AFP's
Counter-Terrorism Portfolio in response to the acquisition of new legislative
tools, including delayed notification search warrants and stop, search and
seize powers. This includes the National Guidelines on Preventative Detention
Orders and Control Orders.
On 1 July 2015 the Australian Customs and Border Protection
Service (ACBPS) and the Department of Immigration and Border Protection (DIBP)
was consolidated into the single Department of Immigration and Border
Protection. The Australian Border Force (ABF), a single frontline operational
border agency, has been established as the new frontline agency within the
Department to protect Australia's border and manage the movement of people and
goods across it.
The Foreign Fighters Act amended the Customs Act 1901
(Cth) (Customs Act) to:
-
permit detention of an individual
where an officer has reasonable grounds to suspect that the person has
committed, is committing or intends to commit a serious Commonwealth offence
(an offence punishable on conviction by imprisonment for 12 months or more)
-
permit detention of a person who
is, or is likely to be, involved in an activity that is a threat to national
security or the security of a foreign country, and
-
extend the time period within
which an officer is obliged to inform a detained person's family or another
person has been increased from 45 minutes to two hours.
The
detention powers are not new to ABF officers. The amendments made by the
Foreign Fighters Act to the Customs Act expanded on existing powers to provide
for detention on national security grounds. Officers exercising these powers
will have undergone substantial six month entry level training consisting of
both class room and on the-job instruction (National Trainee Training or NTT).
That training includes a focus on statutory powers exercised by officers under
the Customs Act and other legislation, and includes training in the exercise of
detention powers.
The NTT
course curriculum includes:
-
APS Values and Code of Conduct
-
cultural awareness, equity and
diversity
-
counter-terrorism awareness
-
powers of officers
-
elements of offences
-
Part 1C, Crimes Act 1914
-
general search techniques
-
on the job training - consolidation
and practice of legislation and powers
-
questioning techniques
-
travel document information and
indicators, and
-
detection and search.
As part of the NTT, officers are provided with detailed
written materials and procedures relevant to the exercise of their statutory
powers, including their detention powers. These written materials are also
available to officers at any time through the DIBP intranet.
These written materials include:
-
Operational Training and
Development Practice Statement
-
Detention and Search of Travellers
Instruction and Guideline - outlining recording requirements, detainee rights,
roles of officers and registrations and powers
-
Powers of Officers in the
Passenger Environment Instruction and Guideline, and
-
Powers of Officers in the Seaports
and Maritime Environment Instruction and Guideline.
The materials reflect that officers need to be able to search
travellers in a range of circumstances in order to maintain the integrity of
border controls but are required to do so in a way that reflects community
expectations for the preservation of civil liberties and privacy of all
persons.
Additionally, divisions responsible for operational
activities issue notifications to communicate policy or procedural changes and
urgent operational advice to operational personnel. The Strategic Border
Command (SBC), which is responsible for a large range of ABF's operational
activities before, at and after the border, issues operational notifications to
advise officers of changes to procedure and practice. For example, SBC issued
an operational notification regarding the expanded detention powers when the
legislative amendments came into effect.
Officers who are authorised to carry firearms undergo
specific, additional training. Once authorised, each officer must be
successfully re-certified every 12 months to continue that authorisation. Many
officers working in maritime command areas, as well as the Counter Terrorism
Unit (CTU) teams at the eight major international airports, are use of force trained.
The use of force curriculum includes the following elements:
-
Legislation and Powers
-
Authority to carry arms and power
to use force
-
Power to detain
-
Power to physically restrain
-
Power of arrest
-
Powers in the Maritime Environment
-
Use of force under various
legislation
-
Power to enter and remain on
coasts
-
Executing a search or seizure
warrant
-
Power to remove persons from a
restricted area
-
Power to remove vehicles
-
Implications of misuse of power
-
Officer response, communication
and de-escalation, and
-
Defensive tactics and the use of
personal defensive equipment.
Over the past several years the ACBPS, now the ABF, has made
significant investment in reforming its workplace culture and in strengthening
the integrity and professionalism of its workforce. This has included a number
of both legislative and administrative measures applying specifically to ABF
personnel. In addition, all ABF officers are engaged under the Public
Service Act 1999 (Cth) (Public Service Act) and, as such, are required to
abide by the Australian Public Service (APS) Values and Code of Conduct.
The Australian Border Force Act 2015 (Cth) replaced
the Customs Administration Act on 1 July 2015. The new Act retains provisions
that allow the Secretary and the Commissioner to make directions with respect
to Immigration and Border Protection employees, including in respect of
professional standards. A proven failure to comply with these directions is a
breach of the Code of Conduct and may result in the imposition of a sanction
under the Public Service Act.
One new feature of the ABF, provided for by the legislation,
is that the ABF Commissioner is able to require officers of the ABF to take an
oath or affirmation. The intention of this new power is to further support a
professional and ethical culture and provide a clear up-front marker about the
standards of conduct and professionalism expected. An ABF officer who has
subscribed to an oath or affirmation must not engage in conduct that is
inconsistent with the oath or affirmation. Proven instances of inconsistent
conduct will amount to breaches of the Code of Conduct and may give rise to
disciplinary action in accordance with Public Service Act.
The ABF requires its officers to undertake annual mandatory
training covering officer integrity, conduct and professional standards. This
includes training regarding the standards of conduct and behaviour expected of
officers both as APS employees and as officers of the ABF. An officer who
exercises his or her powers in a manner that is discriminatory on grounds of
race, ethnicity, religion or any other unlawful ground under
anti-discrimination legislation will have acted both in breach of the
directions and the code of conduct and may face disciplinary action.
Given the extensive training, guidance and administrative
arrangements that the relevant government agencies have in place in relation to
the expanded and amended powers, I consider that operation of the
counter-terrorism laws will, in practice, be compatible with the rights to
equality and non-discrimination.[123]
Committee response
1.417
The committee thanks the Attorney-General for his detailed response.
The committee notes the Attorney-General's advice as to the agencies
involved in counter-terrorism efforts and the training and safeguards in place
to prevent discriminatory conduct, including relevant awareness workshops at
the Australian Federal Police (AFP) College.
1.418
However the committee notes that the Attorney-General's response does
not address the specific concern raised by the committee in its initial analysis,
that the UN Committee on the Elimination of Racial Discrimination has
previously raised concerns that counter-terrorism legislation in Australia may
disproportionately affect Arab and Muslim Australians. The committee notes that
the Attorney-General's response only mentions the AFP as having specific
training targeted towards countering this, and that the response contained no
indication as to the effectiveness of such training.
1.419
If a provision has a disproportionate negative effect or is indirectly
discriminatory it may nevertheless be justified if the measure pursues a
legitimate objective, the measure is rationally connected to that objective and
the limitation on the right to equality and non-discrimination is a
proportionate means of achieving that objective. While the committee is
satisfied that the measure pursues a legitimate objective and is rationally
connected to that objective, the Attorney‑General has not explained how
the measure's limitation on the right to equality and non-discrimination is a
proportionate means of achieving that objective. In lieu of that explanation,
the Attorney-General has offered an assurance that officers are trained to be
impartial and non-discriminatory. The committee notes that the conduct of
officers is also subject to the Racial Discrimination Act 1975.
1.420
The committee considers that the operation of counter-terrorism
laws engage and may limit the right to equality and non-discrimination, particularly
in relation to profiling and targeting of individuals. However, the committee
notes the Attorney-General's assurance that such powers are used by officers
trained to be impartial and non-discriminatory. Accordingly, on the basis of
such an assurance, the committee considers that the powers may be justified.
Schedule 1 – AUSTRAC amendments
Expanding the power of AUSTRAC to disclose information
Right to privacy
1.421
The committee previously sought the advice of the Attorney-General as to
whether the proposed amendment to permit AUSTRAC to share financial information
with the Attorney-General's Department (AGD) is compatible with the right to
privacy, and particularly:
-
whether the proposed changes are aimed at achieving a legitimate
objective;
-
whether there is a rational connection between the measure and
that objective; and
-
whether the amendments are reasonable and proportionate to the
achievement of that objective.
1.422
The committee noted that no response was received from the
Attorney-General in relation to this particular request for further
information. The committee noted that the committee's initial examination of
the bill gave rise to a significant number of inquiries, and that these issues
may have been overlooked in the response provided by the Attorney-General. The
committee therefore reiterated its request for further information on these
issues.
Attorney-General's response
AUSTRAC amendments
I apologise for the oversight and not providing a response to
the Committee's request for further information about the proposed AUSTRAC
amendments in response to the Committee's Fourteenth Report of the 4lh
Parliament.
Expanding the power of AUSTRAC to disclose information -
right to privacy
The amendments to section 5 of the Anti-Money Laundering
and Counter-Terrorism Financing Act 2006 (Cth) (AML/CTF Act) permit AUSTRAC
to share financial data with the Attorney-General's Department (AGD) as a
'designated agency' for the purposes of the Act.
I consider these amendments to be aimed at achieving a
legitimate objective as they recognise and support the role of AGD as
Australia's lead policy agency for AML/CTF. Specifically, they will enable AGD
to receive broad statistical information to support the development of a
comprehensive and evidence-based AML/CTF regime.
There is a rational connection between the amendments and the
objective outlined above, as the amendments rectify a deficiency which
inhibited AGD's ability to properly fulfil its role in administering the
AML/CTF Act. Previously, as a non-designated agency under the AML/CTF Act, the
Act's disclosure regime limited:
-
the circumstances under which AGD
could access information
-
the type of information that AGD
could access
-
AGD's ability to forward documents
containing AUSTRAC information to agencies who were otherwise entitled to
access (e.g. AFP, Australian Crime Commission, the Department of Foreign
Affairs and Trade), and
-
the ability of partner agencies to
share AUSTRAC information considered relevant to the development of policy with
AGD.
This regime imposed significant constraints on the ability of
AGD to efficiently and effectively develop policy in response to emerging money
laundering and terrorism financing typologies. The amendments will enable AGD
to develop more effective and targeted AML/CTF policy. For example:
-
when developing targeted
countermeasures against high risk jurisdictions, it is useful for AGD to
consider statistical information on how much money is flowing to that
jurisdiction, through which entities, and average amounts
-
when considering AML/CTF policy
responses to overseas corruption, to consider jurisdictions of interest, the
quantum and method of fund flows and potentially the range of actors involved,
or
-
when considering terrorism
financing policy responses, to consider the latest trend analysis and
intelligence reports produced by AUSTRAC to assess where and how funds are
moving.
AUSTRAC supported the proposal to list AGD as a designated
agency, noting that providing the Department with designated agency status
assisted both AUSTRAC and the AUSTRAC CEO in performing their functions under
the AML/CTF Act. In its review of the Counter Terrorism Legislation Amendment
(Foreign Fighters) Bill 2014, the Parliamentary Joint Committee on Intelligence
and Security also recognised the legitimate need for AGD to access AUSTRAC
information to formulate whole-of-government policy.
I consider the amendments to be reasonable and proportionate
in the achievement of their stated objective, while remaining compatible with
the right to privacy. Although the amendments will result in the disclosure of
AUSTRAC information to a wider class of persons, Part 11 of the AML/CTF Act
will continue to provide strict limitations on the use and disclosure of
AUSTRAC information. In essence, the AML/CTF Act prohibits the disclosure of
AUSTRAC information, regardless of the type or format, unless a specified
exception applies.
As a Commonwealth agency subject to the Australian Privacy
Principles, AGD has a statutory obligation to properly protect the privacy and
security of any personal information it may receive. It has extensive experience
in dealing with sensitive information, and has appropriate controls in place to
ensure that the integrity of such information is maintained.
AGD has also indicated that certain additional safeguards
will be implemented over and above those present in the AML/CTF Act and the Privacy
Act 1988 (Cth). For instance, AGD only intends to seek access to the
minimum amount of information necessary to support its policy functions. In
general terms, this will be aggregated and de-identified data which will assist
in the policy-making process. AGD will also not seek direct access to the
AUSTRAC database through a dedicated computer terminal, but will request
relevant information through AUSTRAC.
AGD is currently negotiating a formal agreement with AUSTRAC
that will specify the terms of AGD's access to information held by AUSTRAC.[124]
Committee response
1.423
The committee thanks the Attorney-General for his response. The
committee notes the Attorney-General's advice as to the objective of the
measures, which is to enable AGD to support the development of a comprehensive
and evidence-based anti-money laundering and counter-terrorism financing regime.
This may be considered a legitimate objective for the purposes of international
human rights law. The committee notes that the Attorney-General response
explains that AGD 'intends to seek access to the minimum amount of information
necessary to support its policy functions' and that this will generally be
'aggregated and de-identified data'.
1.424
However, regarding the proportionality of the measures, no information
has been provided as to why AGD, as a policy agency and not a law enforcement
agency, needs access to identifiable data nor why de-identified information is
not sufficient for AGD to 'efficiently and effectively develop policy in
response to emerging money laundering and terrorism financial typologies.' It
would appear that more information than is strictly necessary may be shared as
a result of these amendments and the amendments do not represent the least
rights restrictive approach as required by international human rights law.
1.425
While the response indicates policies will be developed to guide AGD's
access to AUSTRAC information, these policies are not equivalent to statutory
safeguards and as such are insufficient for the purposes of international human
rights law.
1.426
The committee's assessment of the proposed expansion of AUSTRAC's
power to disclose information against article 17 of the International Covenant
on Civil and Political Rights (right to privacy) raises questions as to whether
the changes are justifiable under international human rights law. As set out
above, the Attorney-General's response has not demonstrated that the limitation
on the right to privacy is the least rights restrictive approach (in that
de-identified information could be made available instead of identifiable
information) and accordingly, the committee seeks further information from the
Attorney-General as to why it is necessary for AGD to receive identifiable data
from AUSTRAC.
Expanding the information that AUSTRAC may disclose to partner
organisations
Right to privacy
1.427
The committee sought the advice of the Attorney-General as to whether
the proposed amendment to permit AUSTRAC to share information obtained under
section 49 of the AML/CTF Act with partner agencies is compatible with the
right to privacy, and particularly, whether the proposed changes are aimed at
achieving a legitimate objective; whether there is a rational connection between
the measure and that objective; and whether the proposed amendments are
reasonable and proportionate to the achievement of that objective.
1.428
The committee noted that no response was received from the
Attorney-General in relation to this particular request for further
information. The committee noted that the committee's initial examination of
the bill gave rise to a significant number of inquiries, and that these issues
may have been overlooked in the response provided by the Attorney-General. The
committee therefore reiterated its request for further information on these
issues.
Attorney-General's response
Expanding the information that AUSTRAC may disclose to partner
organisations - right to privacy
The amendments to Part 11 of the AML/CTF Act remove certain
restrictions on AUSTRAC's ability to share information collected under section
49 of the Act with partner agencies.
I consider these changes to be aimed at achieving a
legitimate objective as they provide AUSTRAC's partner agencies with greater
access to AUSTRAC information – improving their ability to cross-reference it
against their own intelligence holdings. This enhanced information-sharing will
greatly increase the utility of information gathered by AUSTRAC under section
49, particularly where information is gathered in a systematic way to address particular
threats such as foreign fighters. The amendments will also better enable AUSTRAC
to carry out its statutory objectives of being a regulator and a gatherer of financial
intelligence to assist in the prevention, detection and prosecution of crime.
There is a rational connection between the measures and the
objective outlined above, as they address an identified deficiency in Part 11
of the AML/CTF Act. Section 49 of the Act allows a select group of agencies
(AUSTRAC, AFP, ACC, Australian Taxation Office and DIBP) to collect additional
information from reporting entities on reports provided to AUSTRAC. Previously,
however, all information collected under section 49 was subject to a restrictive
access regime, which goes beyond the restrictions placed on other AUSTRAC information
under Part 11 of the AML/CTF Act.
The initial rationale for the restricted access was to
minimise the risk that the subject of a section 49 request became aware that
they are of interest to an investigating agency, and to prevent investigations
from being prejudiced by the disclosure of the fact that a section 49 information
request is in existence. However, since the AML/CTF Act has been in operation, it
has been found that these statutory protections have had the unintended
consequence of hampering the sharing of information among AUSTRAC's partner
agencies. The amendments to Part 11 will now allow AUSTRAC to share valuable
information it gathers with partner agencies.
I consider the amendments to be reasonable and proportionate
to the achievement of the objectives outlined above, while remaining compatible
with the right to privacy – particularly given that the additional restrictions
relating to the distribution of section 49 information will remain in place for
all other relevant agencies, aside from AUSTRAC. As Australia's AML/CTF
regulator and Financial Intelligence Unit, AUSTRAC is best placed to determine the
most appropriate method for distributing section 49 information to partner
agencies.
In addition, all section 49 information accessed by AUSTRAC's
partner agencies will continue to be subject to the same secrecy and access
regime in Part 11 of the AML/CTF Act as other AUSTRAC information. These
provisions put in place significant safeguards to protect AUSTRAC information
and limit its access and disclosure.
Any personal information collected under section 49 remains
subject to the provisions of the Privacy Act and the Australian Privacy
Principles. AUSTRAC continues to ensure that all employees are aware of their
obligations under the Privacy Act.[125]
Committee response
1.429
The committee thanks the Attorney-General for his response. The
committee considers that the response demonstrates that the amendments are
aimed at the legitimate objective of combating the threat of foreign fighters
by improving the ability of agencies to share relevant financial intelligence
and that the measures are rationally connected to that objective and
proportionate. Accordingly, the committee considers that the powers are compatible
with the right to privacy.
Schedule 2 – Stopping welfare payments
Cancellation of welfare payments to certain individuals
Right to social
security and an adequate standard of living
1.430
The committee previously sought the advice of the Attorney-General as to
the compatibility of Schedule 2 with the right to social security and the right
to an adequate standard of living, and particularly whether the measure may be
regarded as proportionate for the purposes of international human rights law.
1.431
The committee noted that the Attorney-General's initial response did not
address these concerns, and that this specific aspect of the request may have
been overlooked by the Attorney-General given the significant number of
inquiries raised.
Attorney-General's response
Cancellation of welfare payments
I apologise for the oversight and not providing a response to
part of the Committee's request for information about the cancellation of
welfare amendments in response to the Committee's Fourteenth Report of the 44th
Parliament.
Right to social security and the right to an adequate
standard of living
Article 4 of the International Covenant on Economic, Social
and Cultural Rights (ICESCR) recognises that the State may subject economic,
social and cultural rights to such limitations 'as are determined by law only
in so far as this may be compatible with the nature of these rights and solely
for the purpose of promoting the general welfare in a democratic society'.
The welfare cancellation measures may limit the rights of
affected persons to social security under Article 9 of the ICESCR by providing
the Attorney-General with the power to make individuals ineligible for social
security benefits where they have been the subject of a passport refusal or a
passport or visa cancellation on security grounds. I consider that this power
is rationally connected and is reasonable, necessary and proportionate to
achieving the legitimate objective of ensuring that funds, specifically social
security payments, are not able to be made available to support terrorist acts,
terrorists or terrorist organisations.
The powers are only available when an individual has been
subject to a passport refusal or passport or visa cancellation on national
security grounds. When deciding whether to issue a Security Notice to the
Minister for Social Services seeking the cancellation of social security
payments, the Attorney-General must have regard to whether welfare payments are
being, or may be used for a purpose that might prejudice the security of
Australia or a foreign country. Accordingly, there is a rational connection
between the exercise of the power and the legitimate objective, being the
prevention of funding of terrorism-related activities.
Similarly, the measures may limit the rights of affected
persons to an adequate standard of living under Article 11 of the ICESCR by
providing the Attorney-General with the power to make individuals ineligible
for social security benefits where they have been the subject of a passport refusal
or a passport or visa cancellation on security grounds. Where an individual has
been the subject of an adverse security assessment and security agencies have
identified a link between their receipt of social security and conduct of
security concern it is appropriate that access to social security is
restricted. Individuals who choose to use their social security payments to
support terrorist acts, terrorists or terrorist organisations should not
continue to receive social security. If that funding is being used to support
terrorism-related activities then it is not being used for the purposes of
providing an adequate standard of living. Individuals who are the subject of a
Security Notice and become ineligible for social security can still seek employment
to support an adequate standard of living. I consider this power is rationally
connected and is reasonable, necessary and proportionate to achieving the
legitimate objective of ensuring that funds, specifically social security
payments are not able to be made available to support terrorist acts,
terrorists or terrorist organisations.
The power to cancel welfare is therefore compatible with the
right to social security and the right to an adequate standard of living.[126]
Committee response
1.432
The committee thanks the Attorney-General for his response. The
committee notes that the prevention of the use of social security to fund
terrorism related activities is a legitimate objective for the purposes of
international human rights law.
1.433
However, in terms of proportionality, the committee notes that the
decision to cancel a person's social welfare payment is entirely discretionary
once the threshold of passport refusal or cancelation has been reached and that
there is no specific criteria used to guide ministerial decision-making.
Accordingly, there is no statutory requirement that the power to cancel welfare
payments is used strictly in the manner set out in the response.
1.434
Moreover, there is not a necessary link between the cancellation of a
passport and the use of social security to fund terrorism. The basis on which
this will be determined remains unclear in the response.
1.435
As noted in the committee's initial analysis, the availability of review
of decisions to cancel welfare payments is relevant to the question of whether
the measure is reasonable and proportionate. However, the ability to
effectively seek review under the Administrative Decisions Judicial Review
Act 1977 (ADJR Act) is likely to be limited given there is no requirement
to provide reasons for any such decision (with review under the Judiciary Act
also being limited in terms of the available grounds and remedies). In
addition, no information is given as to how a person who has had their social
security benefits cancelled is able to support themselves if they are unable to
gain employment, and therefore, maintain an adequate standard of living.
1.436
The committee's assessment of the proposed powers to cancel
welfare payments against articles 9 and 11 of the International Covenant on
Economic, Social and Cultural Rights (right to social security and an adequate
standard of living) raises questions as to whether the changes are justifiable
under international human rights law.
1.437
As set out above, the committee agrees that preventing the use of
social security to fund terrorism related activities is a legitimate objective
for the purposes of international human rights law. The committee recommends
that the Attorney-General adopt regulations and guidelines that provide
objective criteria and safeguards for the cancellation of welfare payments
including that there must be a link between the social security payment and the
funding of terrorism.
Right to equality and
non-discrimination
1.438
The committee previously requested the advice of the Attorney-General as
to whether the operation of powers to cancel welfare payments will, in
practice, be compatible with the rights to equality and non-discrimination,
with particular attention to the issue of indirect discrimination.
1.439
The committee noted that the Attorney-General's initial response did not
address these concerns, and that this specific aspect of the request may have
been overlooked by the Attorney-General given the significant number of
inquiries raised.
Attorney-General's response
Right to equality and non-discrimination
As noted above, the power to prevent the use of funds,
including social security, to fund terrorism-related activities is a legitimate
objective.
While Australia has a range of obligations to ensure equality
and non-discrimination, including Article 26 of the International Covenant on
Civil and Political Rights (ICCPR), Article 2(2) of ICES CR most relevantly
requires States Parties to ensure that all of the rights under that Covenant,
including to social security, are provided without discrimination of any kind
as to race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status. However, not all
distinctions in treatment will constitute discrimination if the justification
for the differentiation is reasonable and objective. In order for differential
treatment to be permissible, the aim and effects of the measures must be
legitimate, compatible with the nature of the Covenant rights, solely for the
purpose of promoting the general welfare in a democratic society and there must
be a reasonable and proportionate relationship between the aim to be realised
and the measures.
I consider the power to cancel social security benefits is
consistent with Australia's obligations in relation to rights to equality and
non-discrimination as the measures do not attach to a particular category of
person. They apply equally to anyone who is refused an Australian passport or
is the subject of a passport or visa cancellation on security grounds
regardless of race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
The measures therefore do not discriminate and are consistent
with these obligations.[127]
Committee response
1.440
The committee thanks the Attorney-General for his response. The
response states that the measure would:
apply equally to anyone who is refused an Australian passport
or is the subject of a passport or visa cancellation on security grounds
regardless of race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
1.441
However, the cancellation of welfare does not happen automatically as a result
of those circumstances, instead welfare cancellation only happens as a result of
a discretion exercised by the minister.
1.442
In its initial analysis, the committee noted that this measure does not
have as its purpose discrimination against any person. However, the committee
was concerned that the wide executive discretion to cancel welfare payments, in
practice, could be indirectly discriminatory. The Attorney-General's response
does not explain how the discretion will be appropriately circumscribed in a
manner that ensures that any disproportionate impact on the grounds of race or
religion is not arbitrary.
1.443
The committee's assessment of the proposed powers to cancel
welfare payments against articles 2, 16 and 26 of the International Covenant on
Civil and Political Rights (right to equality and non-discrimination) raises
questions as to whether the changes are justifiable under international human
rights law.
1.444 As set
out above, the committee agrees that preventing the use of social security to
fund terrorism related activities is a legitimate objective for the purposes of
international human rights law. The committee recommends that the
Attorney-General adopt regulations and guidelines that provide objective
criteria and safeguards for the cancellation of welfare payments that ensure
that the measure is compatible with Australia's human rights obligations.
Federal Financial Relations (National Specific Purpose Payments)
Determination 2013-14 No. 1 [F2015L00877]
Federal Financial Relations (National Specific Purpose Payments)
Determination 2013-14 No. 2 [F2015L00878]
Federal Financial Relations (National Partnership payments) Determination
No. 87 (December 2014) [F2015L01093]
Federal Financial Relations (National Partnership payments) Determination
No. 88 (January 2015) [F2015L01094]
Federal Financial Relations (National Partnership payments) Determination
No. 89 (February 2015) [F2015L01095]
Federal Financial Relations (National Partnership payments) Determination
No. 90 (March 2015) [F2015L01096]
Federal Financial Relations (National Partnership payments) Determination
No. 91 (April 2015) [F2015L01097]
Federal Financial Relations (National Partnership payments) Determination
No. 92 (May 2015) [F2015L01098]
Federal Financial Relations (National Partnership payments) Determination
No. 93 (June 2015) [F2015L01099]
Portfolio:
Treasury
Authorising
legislation: Federal Financial Relations Act 2009
Last day to
disallow: 16 September 2015 (Senate) (but only in relation to Federal Financial
Relations (National Specific Purpose Payments) Determination 2013-14 No. 1
[F2015L00877] and Federal Financial Relations (National Specific Purpose
Payments) Determination 2013-14 No. 2 [F2015L00878]
Purpose
1.445
The Federal Financial Relations (National Specific Purpose Payments)
Determination 2013-14 No. 1 (Determination 1) specifies the amounts payable for
the schools, skills and workforce development, and housing National Specific
Purpose Payments (National SPPs) for 2013-14. The Federal Financial Relations
(National Specific Purpose Payments) Determination 2013‑14 No. 2 (Determination 2)
specifies the amount payable for the Disability National SPP for 2013-14.
1.446
The remaining instruments[128]
specify the amounts to be paid to the states and territories to support the
delivery of specified outputs or projects, facilitate reforms by the states or
reward the states for nationally significant reforms. Schedule 1 to these
instruments sets out the amounts of payments by reference to certain outcomes,
including healthcare, education, community services and affordable housing.
1.447
Together these instruments are referred to as 'the Determinations'.
1.448
Measures raising human rights concerns or issues are set out below.
Background
1.449
The committee commented on the Determinations in its Twenty-eighth
Report of the 44th Parliament, and requested further
information from the Treasurer as to whether the Determinations were compatible
with Australia's human rights obligations.[129]
Payments to the states and territories for the provision of health,
education, employment, housing and disability services—National Specific
Purpose Payments
1.450
Under the Intergovernmental Agreement on Federal Financial
Relations (the IGA), the Commonwealth provides National SPPs to the states and
territories as a financial contribution to support state and territory service
delivery in the areas of schools, skills and workforce development, disability
and housing.
1.451
The Federal Financial Relations Act 2009 provides for the minister,
by legislative instrument, to determine the total amounts payable in respect of
each National SPP, the manner in which these total amounts are indexed, and the
manner in which these amounts are divided between the states and
territories. The Determinations have been made in accordance with these
provisions.
1.452
Payments under the Determinations assist in the delivery of services by
the states and territories in the areas of health, education, employment,
disability and housing. Accordingly, the Determinations engage a number of
human rights. Whether those rights are promoted or limited will be determined
by the amounts of the payments in absolute terms and in terms of whether the
amounts represent an increase or decrease on previous years.
1.453
The committee has previously noted, in its assessment of appropriations
bills, 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).[130]
Multiple rights
1.454
The committee considered in its previous analysis that the
Determinations engage and may promote or limit the following human rights:
-
right to equality and non-discrimination (particularly in
relation to persons with disabilities);[131]
-
rights of children;[132]
-
right to work;[133]
-
right to social security;[134]
-
right to an adequate standard of living;[135]
-
right to health;[136] and
-
right to education.[137]
Compatibility of the Determinations
with multiple rights
1.455
The statement of compatibility for the Federal Financial Relations
(National Specific Purpose Payments) Determination 2013-14 No. 1 and the
Federal Financial Relations (National Specific Purpose Payments) Determination
2013-14 No. 2 each simply state that the instruments do not engage human
rights.[138]
1.456
Australia has obligations to progressively realise economic, social and
cultural rights using the maximum of resources available and this is reliant on
government allocation of budget expenditure. The obligations under
international human rights law are on Australia as a nation state - it is
therefore incumbent on the Commonwealth to ensure that sufficient funding is
provided to the states and territories to ensure that Australia's international
human rights obligations are met.
1.457
Where the Commonwealth seeks to reduce the amount of funding pursuant to
National SPPs, such reductions in expenditure may amount to retrogression or
limitations on rights.
1.458 The committee
therefore sought the advice of the Treasurer as to whether the Determinations
are compatible with Australia's human rights obligations, and particularly,
whether the Determinations are compatible with Australia's obligations of
progressive realisation with respect to economic, social and cultural rights;
whether a failure to adopt these Determinations would have a regressive impact
on other economic, social and cultural rights; whether any reduction in the
allocation of funding (if applicable) is compatible with Australia's
obligations not to unjustifiably take backward steps (a retrogressive measure)
in the realisation of economic, social and cultural rights; and whether the
allocations are compatible with the rights of vulnerable groups (such as
children; women; Aboriginal and Torres Strait Islander Peoples; persons with
disabilities; and ethnic minorities).
Treasurer's response
All of the instruments in question fall into one of two
categories: annual Determinations for National Specific Purpose Payments
(NSPPs) for 2013‑14; and monthly Determinations for National Partnership
payments (NPs) made over the period December 2014 to June 2015.
2013-14 National Specific Purpose Payments
NSPPs are payments made by the Commonwealth to the states and
territories that are to be used in specifically agreed sectors, in accordance
with the Federal Financial Relations Act 2009 (the FFR Act). The FFR Act
requires the Treasurer to determine the total payment amounts for each NSPP in
2013-14 by applying a relevant indexation factor to the total payment amounts
from 2012-13.
The determination and payment of NSPPs assist in the
realisation of a number of human rights:
-
Both the NSPP for schools and the
NSPP for skills and workforce development promote the right to education (art
13, International Covenant on Economic Social and Cultural Rights (ICESCR); art
28, Convention of the Rights of the Child (CRC) and art 24, Convention on the
Rights of Persons with Disabilities (CRPD)), and the full realisation of the right
to work through vocational training (art 6, ICESCR and art 27, CRPD).
-
The NSPP for housing services
promotes the right to an adequate standard of living (specifically in relation
to housing) (art 11, ICESCR; art 27, CRC and art 28, CRPD).
-
The NSPP for disability services
promotes:
- the right of children with disabilities to education,
training and health care (art 23, CRC and art 7, CRPD);
- rights concerning the ability of persons with
disabilities to live independently and be included in the community (art 19,
CRPD);
- rights concerning the personal mobility of persons
with disabilities (art 20, CRPD);
- rights concerning the habilitation and
rehabilitation of persons with disabilities (art 26, CRPD); and
- the right to take part in cultural life (art 30,
CRPD).
I do not consider that either the determination or payment of
NSPPs has a detrimental impact on any human rights.[139]
Committee response
1.459
The committee thanks the Treasurer for his detailed response.
1.460
The Treasurer has explained the various rights that the instruments
engage and promote. However, the response does not explain whether the payments
have changed over time (if there is any reduction in payments this could limit
or have a retrogressive impact on human rights). As noted in the previous report,
information that provides a detailed comparison for the amounts provided in the
Determinations with the amounts provided in previous years would assist the
committee in assessing the instruments' compatibility with human rights.
1.461
The committee therefore requests further information from the
Treasurer as to whether the Determinations are compatible with Australia's
international human rights obligations, in particular whether there has been any
reduction in the allocation of funding, and if so, whether this is compatible
with Australia's obligations not to unjustifiably take backward steps (a
retrogressive measure) in the realisation of economic, social and cultural
rights.
Payments to the states and territories for the provision of health,
education, employment, housing and disability services—National Partnership
payments
1.462
Under the the IGA, the Commonwealth provides National SPPs to the
states and territories as a financial contribution to support state and
territory service delivery. The Federal Financial Relations Act 2009
provides for the minister, by legislative instrument, to determine the total
amounts payable in respect of each National SPP.
1.463
As noted above at [1.452], the Determinations engage a number of human
rights. Whether those rights are promoted or limited will be determined by the
amounts of the payments in absolute terms and in terms of whether the amounts
represent an increase or decrease on previous years.
1.464
The committee has previously considered 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 ICCPR and the
ICESCR.[140]
Multiple rights
1.465
The committee considered in its previous analysis that the
Determinations engage and may promote or limit a number of rights as set out
above at [1.454].
Compatibility of the Determinations
with multiple rights
1.466
The National Partnership payments instruments are not accompanied by
statements of compatibility as the instruments are not specifically required to
have such statements under section 9 of the Human Rights (Parliamentary
Scrutiny) Act 2011. However, the committee's role under section 7 of that
Act is to examine all instruments for compatibility with human rights
(including instruments that are not required to have statements of
compatibility).
1.467
As noted at [1.456], Australia has obligations to progressively realise
economic, social and cultural rights using the maximum of resources available
and this is reliant on government allocation of budget expenditure.
1.468
Where the Commonwealth seeks to reduce the amount of funding pursuant to
National SPPs, such reductions in expenditure may amount to retrogression or
limitations on rights.
1.469 The committee
therefore sought the advice of the Treasurer as to whether the Determinations
are compatible with Australia's human rights obligations, and particularly,
whether the Determinations are compatible with Australia's obligations of
progressive realisation with respect to economic, social and cultural rights;
whether a failure to adopt these Determinations would have a regressive impact
on other economic, social and cultural rights; whether any reduction in the
allocation of funding (if applicable) is compatible with Australia's obligations
not to unjustifiably take backward steps (a retrogressive measure) in the
realisation of economic, social and cultural rights; and whether the
allocations are compatible with the rights of vulnerable groups (such as
children; women; Aboriginal and Torres Strait Islander Peoples; persons with
disabilities; and ethnic minorities).
Treasurer's response
National Partnership Payments (December 2014 - June 2015)
NPs are payments made by the Commonwealth to the states and
territories to support the delivery of specified outputs or projects,
facilitate reforms, and to reward them for undertaking nationally significant
reforms. The FFR Act requires the Treasurer to determine NP amounts to be paid
to each state and territory. As these payments are generally made on the 7th
day of each month, the Treasurer usually makes an NP determination at least
once a month.
NP amounts are generally only determined, and then paid, once
a state or territory achieves pre-determined milestones or performance benchmarks
as set out in the relevant National Partnership Agreement. As shown in the
table below, the Commonwealth provided NP funding to the states and territories
across a variety of sectors during 2014-15. Further information on the various
National Partnership Agreements that make up these totals can be found in the
2014-15 Final Budget Outcome.
Sector
|
Total value of NPs
in 2014-15 ($m)
|
Health
|
1,338
|
Education
|
750
|
Skills
and workforce development
|
395
|
Community
services
|
902
|
Affordable
housing
|
638
|
Infrastructure
|
4,874
|
Environment
|
531
|
Contingent
liabilities
|
522
|
Other
purposes
|
3,732
|
Total
|
13,681
|
It is difficult to assess the human rights compatibility of
the determination and payment of NP amounts. The amounts paid to each state and
territory vary each month; this reflects the fact that payments are made as
individual states and territories meet varying milestones or benchmarks, as
stipulated in the various National Partnership Agreements.
However, in general, the provision of NPs could be said to
assist the advancement of:
-
the right to education (art 13,
ICESCR; art 28, CRC and art 24, CRPD),
-
the full realisation of the right
to work through vocational training (art 6, ICESCR and art 27, CRPD).
-
the right to an adequate standard
of living (art 11, ICESCR; art 27, CRC and art 28, CRPD).
-
the right to the highest
attainable standard of physical and mental health (art 12(1), ICESCR; art 24,
CRC and art 25, CRPD).
-
the right of children with
disabilities to education, training and health care (art 23, CRC and art 7,
CRPD);
-
rights concerning the ability of
persons with disabilities to live independently and be included in the
community (art 19, CRPD);
-
rights concerning the personal
mobility of persons with disabilities (art 20, CRPD);
-
rights concerning the habilitation
and rehabilitation of persons with disabilities (art 26, CRPD); and
-
the right to take part in cultural
life (art 30, CRPD).
I do not consider that either the determination or payment of
NPs has a detrimental impact on any human rights.[141]
Committee response
1.470
The committee thanks the Treasurer for his response. The
committee notes the Treasurer's advice that determining the human rights
compatibility of the National Partnership Payments instruments
set out at [1.446] above is difficult due to a constant fluctuation in payment
amounts from month to month. The committee therefore agrees that a human rights
analysis for National Partnership Payments may not be amenable in a meaningful
way, and has concluded its
examination of these instruments.
Advice only
1.471
The committee draws the following bills and instruments to the attention
of the relevant minister or legislation
proponent on an advice only basis. The committee does not require a response to
these comments.
Commonwealth Grants Commission Amendment (GST Distribution) Bill 2015
Sponsor: Senator
Wang
Introduced:
Senate, 13 October 2015
Purpose
1.472
The Commonwealth Grants Commission Amendment (GST Distribution)
Bill 2015 (the bill) seeks to amend the Commonwealth Grants Commission
Act 1973 to require that the Commonwealth Grants Commission (CGC), when
considering the capacity of a state or territory to raise mining revenue in
preparing its annual recommendation on the distribution of goods and services
tax (GST) revenue, only takes into account the most recent financial year for
which mining revenue data is available.
1.473
Measures raising human rights concerns or issues are set out below.
Service delivery dependent on taxation revenue
1.474
The statement of compatibility states that the bill does not engage any
rights or freedoms.
1.475
Australia has obligations to progressively realise
economic, social and cultural rights using the maximum of resources available
and this is reliant on taxation revenue and the subsequent
allocation of that revenue through budget expenditure. The states and territories have limited revenue capacity and rely heavily
on distribution of GST
revenue payments. This revenue enables the provision
of a range of government
services which facilitate
and support the implementation of multiple human rights.
1.476
The obligations under international human rights
law are on Australia as a nation state - it
is therefore incumbent on the Commonwealth to ensure that
there is a fair and equitable allocation of GST tax revenue between the states and territories to ensure that Australia's international human rights obligations are met.
1.477
Accordingly, the committee
considers that there is a sufficiently close connection between the distribution of GST revenue and the implementation of new legislation, policy or programs,
or the discontinuation or reduction
in support of a particular policy or program
that may engage human rights. As a result,
the statement of compatibility for this
bill should provide
an assessment of any limitation
or promotion of human rights that may arise from that engagement. This would include information that provides a detailed comparison of how the bill would impact on the distribution of GST revenue to states and territories and the consequential
ability to provide services.[142]
1.478
The committee notes that it would be very difficult for a private
senator, without the resources of the Department of Finance and Department of
Treasury, to undertake such a comprehensive analysis.
1.479
The committee considers that the bill engages multiple human rights
as there is a sufficiently close connection between the distribution of goods and services tax
revenue and the implementation of legislation, policy or programs
that may engage human rights.
1.480
Accordingly, the committee encourages the legislation proponent
to consult the committee's Guidance Note 1 which provides more information as
to the role of the committee in scrutinising legislation for compatibility with
Australia's international human rights obligations and guidance on how statements
of compatibility may be prepared.
Marriage Legislation Amendment Bill 2015
Sponsors: Hon
Warren Entsch MP; Hon Teresa Gambaro MP; Ms Terri Butler MP; Mr Laurie
Ferguson MP; Mr Adam Bandt MP; Ms Cathy McGowan MP; Mr Andrew Wilkie MP
Introduced: House
of Representatives, 17 August 2015
Purpose
1.481
The Marriage Legislation Amendment Bill 2015 (the bill) seeks to amend
the Marriage Act 1961 (the Marriage Act) to:
-
define marriage as a union of two people;
-
clarify that ministers of religion or chaplains are not bound to
solemnise marriage by any other law; and
-
remove the prohibition of the recognition of same-sex marriages solemnised
in a foreign country.
1.482
The bill also seeks to amend the Sex Discrimination Act 1984 to
make consequential amendments.
1.483
Measures engaging human rights are set out below.
Changes to the Marriage Act to permit same-sex marriage
1.484
The bill seeks to make a number of changes to the Marriage Act in order
to permit same-sex couples to marry.
1.485
It is important to note that the bill seeks to remove the existing
domestic law prohibition on same-sex couples marrying. To date, the available
international jurisprudence has focused primarily on whether a prohibition on
same-sex couples marrying is compatible with human rights. The task of the
committee, in examining the bill for compatibility with human rights, is not to
consider whether there is a right under international human rights law to
same-sex marriage, but to consider whether the removal of the prohibition on
same-sex marriage is compatible with Australia's human rights obligations.
1.486
In this regard, the bill engages the right to equality and
non-discrimination; the right to freedom of thought, conscience and religion or
belief; the right to respect for the family; and the rights of the child.
1.487
The right of minority groups and the right to freedom of expression are
not engaged by the bill.[143]
This is because the bill does not prevent religious minority groups from
professing and practising their own religion, or prevent any person from
exercising their right to freedom of expression. The following analysis
therefore does not examine these rights.
Right to equality and
non-discrimination
1.488
The right to equality and non-discrimination is protected by articles 2
and 26 of the International Covenant on Civil and Political Rights
(ICCPR).
1.489
This is a fundamental human right that is essential to the protection
and respect of all human rights. It provides that everyone is entitled to enjoy
their rights without discrimination of any kind, and that all people are equal
before the law and entitled without discrimination to the equal and
non-discriminatory protection of the law.
1.490
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or religion),[144]
which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.[145]
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
personal attribute.[146]
Compatibility of the measure with
the right to equality and non-discrimination
1.491
The statement of compatibility acknowledges that the bill engages the
right to equality and non-discrimination 'because it extends the right to marry
to any two people regardless of sex, sexual orientation, gender identity or
intersex status'. On this basis the statement concludes that the bill promotes
those rights.
1.492
Under article 26 of the ICCPR, states are required to prohibit any
discrimination and guarantee to all people equal and effective protection
against discrimination on any ground. Article 26 lists a number of grounds as
examples as to when discrimination is prohibited, which includes sex and 'any
other status'. While sexual orientation is not specifically listed as a
protected ground the treaty otherwise prohibits discrimination on 'any ground',
and the UN Human Rights Committee has specifically recognised that the treaty
includes an obligation to prevent discrimination on the basis of sexual
orientation.[147]
1.493
On this basis, by restricting marriage to between a man and a woman the
current Marriage Act appears to directly discriminate against same-sex couples
on the basis of sexual orientation.
1.494
In Joslin v New Zealand (2002) the United Nations Human Rights
Committee (the UN Committee) determined that the right to marry under the ICCPR
is confined to a right of opposite-sex couples to marry, and that in light of
this a refusal to provide for same-sex marriage does not breach the right to
equality and non‑discrimination.[148]
However, the UN Committee provided no reasoning as to whether the prohibition
on same-sex marriage discriminated against same-sex couples. Rather, it said
that in light of its findings as to the right to marry it could not find that a
mere refusal to legislate for same-sex marriage violated the right to
equality and non-discrimination. If it had examined this question, the UN
Committee would have had to assess whether the differential treatment of
same-sex couples is reasonably and objectively justifiable.[149]
It is important to note that the committee is not required to determine this
question, because the bill does not propose to treat same-sex couples
differently.
1.495
While not relevant to the analysis of the bill, it should be noted that
since Joslin v New Zealand (2002) was decided there has been a significant evolution of social attitudes towards same-sex
couples. Many countries have afforded legal recognition to same-sex couples and
international jurisprudence has recognised that same-sex couples are just
as capable as opposite-sex couples of entering into stable, committed
relationships and are in need of legal recognition and protection of their
relationship, be it marriage or legally recognised civil partnerships.[150] This change in views is relevant in considering whether there
is objective and reasonable justification for treating same-sex couples
differently.
1.496
As noted above, the bill would remove the current prohibition on
same-sex couples marrying. The committee therefore must consider whether
extending the legal recognition of marriage to same-sex couples limits or
promotes the right to equality and non-discrimination. Given that
discrimination on the grounds of sexual orientation is recognised as a ground
on which states are required to guarantee all persons equal and effective protection
against, it seems clear that extending the definition of marriage to include a
union between two people (rather than only for opposite-sex couples) promotes
the right to equality and non-discrimination.
1.497
It should be noted that the view that extending the legal definition of
marriage promotes the right to equality and non-discrimination does not suggest
that extending marriage more broadly would promote human rights. International
human rights jurisprudence has established that in order for a measure to
engage the rights of equality and non-discrimination there must be a difference
in the treatment of persons in relevantly similar situations.[151]
While it has been held that same-sex couples 'are just as capable as
different-sex couples of entering into stable, committed relationships',[152]
it has not been established that other relationships would be classified as a
relevantly similar situation. For example, the case law establishes that the
relationship between two cohabitating siblings is 'qualitatively of a different
nature to that between married couples'.[153]
1.498
The committee has assessed the bill
against article 26 of the International Covenant on Civil and Political Rights
(the right to equality and non-discrimination) and is of the view that the bill,
in expanding the definition of marriage, promotes the right to equality and
non-discrimination.
Right to freedom of religion
1.499
Article 18 of the ICCPR protects the rights of all persons to think
freely, and to entertain ideas and hold positions based on conscientious or
religious or other beliefs. Subject to certain limitations, persons also have
the right to demonstrate or manifest religious or other beliefs, by way of
worship, observance, practice and teaching. The right includes the right to
have no religion or to have non-religious beliefs protected.
1.500
The right to freedom of religion not only requires that the state should
not, through legislative or other measures, impair a person's freedom of
religion, but that the state should also take steps to prevent others from
coercing persons into having, or changing, religion.
1.501
The right to hold a religious or other belief or opinion is an absolute
right. However, the right to exercise one's belief can be limited given its
potential impact on others. The right can be limited as long as it can be
demonstrated that the limitation is reasonable and proportionate and is
necessary to protect public safety, order, health or morals or the rights of
others. The right to non-discrimination often intersects with the right to freedom
of religion and each right must be balanced against one another.
Compatibility of the measure with
the right to freedom of religion
1.502
The Marriage Act currently grants a minister of religion of a recognised
denomination the discretion whether to solemnise a marriage.[154]
1.503
The bill would amend the Marriage Act to extend this discretion to
ensure that nothing in the Marriage Act 'or in any other law' imposes an
obligation on a minister of religion to solemnise any marriage. Accordingly,
ministers of religion would be free not to solemnise a same-sex marriage for
any reason, including if this was contrary to their religious beliefs.
1.504
Importantly, provided that a minister of religion is authorised by their
religion to solemnise marriages, they retain absolute discretion under the law
as to whether or not they wish to solemnise a particular marriage. This
discretion exists notwithstanding the particular view of same-sex marriage that
a denomination of religion has adopted.
1.505
In contrast, under the Marriage Act registered civil celebrants are
required to abide by existing anti-discrimination laws. The amendments in the
bill would mean that civil celebrants (who are not ministers of religion) would
be prohibited from refusing to solemnise same-sex marriages on the ground that
the couple are of the same sex. This would apply even if the civil celebrant
had a religious objection to the marriage of same-sex couples. This engages and
limits the right to freedom of religion under article 18 of the ICCPR.
1.506
To the extent that this limits a civil celebrant's right to freedom of
religion, it is necessary to consider whether this limitation pursues a
legitimate objective, is rationally connected to that objective and is a
proportionate means of achieving that objective.
1.507
The statement of compatibility states that the objective of the bill is
to allow any two people to marry and thereby recognise the right of all people
to equality before the law. Ensuring that persons are not discriminated against
on the basis of a prohibited ground is a legitimate objective for the purposes
of human rights law; and the measure is clearly rationally connected to this
objective (that is, would be effective to achieve that objective).The central
question is whether, by not providing an exemption for civil celebrants to
solemnise marriage where to do so may be contrary to their religious beliefs,
the bill is proportionate to the objective of promoting equality and
non-discrimination. On the scope of the exemption the statement of
compatibility states:
It is not considered appropriate to extend the right to
refuse to solemnise marriages to other authorised celebrants. Under the Code of
Practice for Marriage Celebrants and existing Commonwealth, State and Territory
discrimination legislation, authorised celebrants who are not ministers of
religion or chaplains cannot unlawfully discriminate on the grounds of race,
age or disability. To allow discrimination on the grounds of a person’s sex,
sexual orientation, gender identity or intersex status would treat one group of
people with characteristics that are protected under discrimination legislation
differently from other groups of people with characteristics that are also
protected.[155]
1.508
Article 18(3) of the ICCPR permits
restrictions on the freedom to manifest religion or belief only if limitations
are prescribed by law and are necessary to protect public safety, order, health
or morals, or the fundamental rights and freedoms of others. The UN Committee
has explained:
In interpreting the scope of
permissible limitation clauses, States parties should proceed from the need to
protect the rights guaranteed under the Covenant, including the right to
equality and non-discrimination on all grounds specified in articles 2, 3 and
26 [equality and non-discrimination]. Limitations imposed must be established
by law and must not be applied in a manner that would vitiate the rights
guaranteed in article 18...Limitations may be applied only for those purposes for
which they were prescribed and must be directly related and proportionate to
the specific need on which they are predicated. Restrictions may not be imposed
for discriminatory purposes or applied in a discriminatory manner.[156]
1.509
The UN Committee has thus concluded that
the right to exercise one's freedom of
religion may be limited to protect equality and non-discrimination. As set out
above, the right to equality and non-discrimination has been extended to sexual
orientation. It is therefore permissible to limit the right to exercise
one's freedom of religion in order to protect
the equal and non-discriminatory treatment of individuals on the grounds of
sexual orientation, provided that limitation is proportionate.
1.510
This point has been addressed by the South African Constitutional Court
in Fourie;[157]
and by the British Columbia Court of Appeal (Canada) in Halpern,[158]
in which the court concluded that marriage as a legal institution, does not
interfere with each religion determining what marriage is for the purposes of
that religious institution.[159]
1.511
In
Eweida and Ors v United Kingdom,[160] the
European Court of Human Rights dismissed Ms Ladele's complaint that she was
dismissed by a UK local authority (the Islington Council) from her job as a
register of births, death and marriages, because she refused on religious
grounds to have civil partnership duties of same-sex couples assigned to her.
The court upheld the finding of the UK courts that the right to freedom of
religion (under article 9 of the European Human Rights Convention) did not
require that Ms Ladele’s desire to have her religious views respected should
'override Islington’s concern to ensure that all its registrars manifest equal
respect for the homosexual community as for the heterosexual community.'[161]
1.512
On the question of proportionality, the bill appears to take the least
rights restrictive approach to the limit placed on the right to freedom of
religion, because it maintains the exception for ministers of religion to
refuse to solemnise a marriage on any basis. While it does not provide an
exception for civil celebrants this is in line with existing laws and, as
explained above, seeks to balance the competing rights of same-sex couples to
be treated equally by civil celebrants once the law is in force. Accordingly, the fact that civil celebrants may be
required to officiate at same-sex weddings, regardless of their religious
views, is not a disproportionate limit on the right to freedom of religion.
1.513
It should be noted in the Australian context that civil celebrants,
acting under the Marriage Act, are performing the role of the state in
solemnising marriages. It is irrelevant to this analysis that civil celebrants
are not directly employed by the state. Further, nothing in the bill affects
the body of existing anti-discrimination law provisions which prohibit persons
who provide goods or services to the public from discriminating against persons
on the basis of their sexual orientation.
1.514
The committee has assessed the
bill against article 18, read in conjunction with articles 2 and 26 of the
International Covenant on Civil and Political Rights (the right to freedom of
religion and the right to equality and non-discrimination) and a number of
committee members are of the view that the bill is compatible with the right to
freedom of religion, as any limitation on the right to freedom of religion is
proportionate to the objective of promoting equality and non-discrimination.
1.515
However, the committee was divided on the issue of the limitation
which the bill places on the right to freedom of religion. A number of
committee members considered that this limitation is not justified as the bill
does not provide civil celebrants with the option to refuse to solemnise
marriages that are contrary to their religious beliefs.
Right to respect for the family
1.516
The right to respect for the family is protected by articles 17 and 23
of the ICCPR and article 10 of the International Covenant on Economic, Social
and Cultural Rights (ICESCR). Under these articles, the family is recognised as
the natural and fundamental group unit of society and, as such, being entitled
to protection. Article 23 of the ICCPR recognises the right of men and women of
marriageable age to marry and found a family.
1.517
An important element of protection of the family, arising from the
prohibition under article 17 of the ICCPR against unlawful or arbitrary
interference with family, is to ensure family members are not involuntarily
separated from one another. Laws and measures which prevent family members from
being together, impose long periods of separation or forcibly remove children
from their parents, will therefore engage this right.
Compatibility of the measure with
the right to respect for the family
1.518
By allowing same-sex couples to marry the bill would not impose any limitation
on the right to respect for the family. This is because it would not reduce in
any way the existing protections afforded to married couples and their
families.
1.519
To the extent that the bill would expand the protections afforded to
married couples under Australian domestic law to same-sex couples, it may
engage the right to respect for the family. The statement of compatibility
states that it supports families 'by extending the stability embodied in a
marriage relationship to all families, regardless of the sex, sexual
orientation, gender identity or intersex status of the parents'.[162]
1.520
The right to respect for the family under international human rights law
applies to all families, including same-sex couples, and the bill is consistent
with this expanded view of the family under international human rights law.
1.521
For example, recognising the diversity of family structures worldwide,
the UN Committee has adopted a broad conception of what constitutes a family,
noting that families 'may differ in some respects from State to State...and it is
therefore not possible to give the concept a standard definition'.[163]
Consistent with this approach, the European Court of Human Rights noted in 2010
that same-sex couples without children fall within the notion of family, 'just
as the relationship of a different-sex couple in the same situation would'.[164]
1.522
Similarly, the UN Committee on the Rights of the Child noted in 1994
that the concept of family includes diverse family structures 'arising from
various cultural patterns and emerging familial relationships', and stated:
...[the Convention on the Rights of the Child (CRC)] is
relevant to 'the extended family and the community and applies in situations of
nuclear family, separated parents, single-parent family, common-law family and
adoptive family'.[165]
1.523
This statement on family diversity, along with the UN Committee's
more recent inclusion of sexual orientation as a prohibited ground of
discrimination against a child and a child’s parents, is consistent with the
view that the Convention on the Rights of the Child (CRC) extends protection of
the family to same-sex families.[166]
Further, the UN Committee has recognised that 'the human rights of
children cannot be realized independently from the human rights of their
parents, or in isolation from society at large'.[167]
1.524
It is relevant to note that views on what constitutes marriage under
international human rights law are changing, and have changed since the time
when the ICCPR was drafted. The ICCPR is a living document and is to be
interpreted in accordance with contemporary understanding. The UN Committee has
emphasised that the ICCPR should be 'applied in context and in the light of
present-day conditions'.[168]
1.525
In addition, state practice is an important element of international
law, both as a key component of customary international law and as a crucial
tool for interpreting treaties. The definitions of marriage and family in the
ICCPR should therefore be interpreted in accordance with current state practice.
1.526
Currently, a large number of countries recognise same-sex partnerships
to some degree (through civil unions, registries and same-sex marriage), and
there is a clear trend towards further recognition. Interpreting the ICCPR
consistent with emerging state practice thus requires an expansive view of
marriage and family.[169]
1.527
The committee has assessed the bill against articles 17 and 23 of
the International Covenant on Civil and Political Rights and article 10 of the
International Covenant on Economic, Social and Cultural Rights (right to
respect for the family) and is of the view that the bill promotes the
right to respect for the family by extending the availability of marriage to
same-sex couples.
Rights of the child
1.528
Children have special rights under human rights law taking into account
their particular vulnerabilities. Children's rights are protected under a
number of treaties, particularly the CRC. All children under the age of 18
years are guaranteed these rights. The rights of children include:
-
the right to develop to the fullest;
-
the right to protection from harmful influences, abuse and
exploitation;
-
family rights; and
-
the right to access health care, education and services that meet
their needs.
1.529
Under the CRC, state parties are required to ensure that, in all actions
concerning children, the best interests of the child is a primary
consideration.[170]
1.530
This principle requires active measures to protect children's rights and
promote their survival, growth and wellbeing, as well as measures to support
and assist parents and others who have day-to-day responsibility for ensuring
recognition of children's rights. It requires legislative, administrative and
judicial bodies and institutions to systematically consider how children's
rights and interests are or will be affected directly or indirectly by their
decisions and actions.
Compatibility of the measure with
the rights of the child
1.531
The statement of compatibility states that the bill promotes the best
interests of children by:
...extending the stability embodied in a marriage relationship
to all families, regardless of the sex, sexual orientation, gender identity or
intersex status of the parents.[171]
1.532
It also states that the bill does not affect the status quo regarding
the parentage of children and therefore does not 'adversely affect the rights
of children'.[172]
1.533
It is noted that the bill proposes to make one amendment which would
engage the rights of the child, namely a consequential amendment to Part III of
the Schedule to the Marriage Act, which would recognise that when a minor is an
adopted child and wishes to get married, consent to the marriage is in relation
to two adopted parents (removing a reference to 'husband and wife'). This
marginally engages, but does not promote or limit, the rights of the child.
1.534
However, as the bill relates strictly to marriage it does not directly
engage the rights of the child. The regulation of marriage provides legal
recognition for a relationship between two people, which in and of itself has
no impact on whether the persons in that relationship have children—there are
many married couples who do not have children and many unmarried couples that
do have children.
1.535
Further, the bill would not amend any laws regulating adoption,
surrogacy or in vitro fertilisation (IVF), including existing laws that allow
same-sex couples to have children. Such laws therefore fall outside the scope
of the committee's examination of the bill for compatibility with human rights.
1.536
In addition, whether or not a child's parents or guardians are married
has no legal effect on the child. In compliance with the requirements of
international human rights law, there are no laws in Australia that
discriminate against someone on the basis of their parents' marital status.[173]
Therefore, amending the definition of marriage in the Marriage Act will not
affect the legal status of the children of married or unmarried couples.
1.537
It is noted that the CRC refers to 'parents' and 'legal guardians'
interchangeably and refers to 'family' without referencing mothers or fathers.[174]
The preamble notes that a child 'should grow up in a family environment, in an
atmosphere of happiness, love and understanding'.[175]
There is no reference to marriage in the Convention. Provisions in the CRC
relating to a child's right to know its parents and a right to remain with its
parents,[176]
are not engaged by the bill, which is limited to the legal recognition of
relationships.
1.538
There is an obligation in the CRC to take into account the best
interests of the child 'in all actions concerning children', and this legal
duty applies to all decisions and actions that directly or indirectly affect
children. The UN Committee on the Rights of the Child has said that this
obligation applies to 'measures that have an effect on an individual child,
children as a group or children in general, even if they are not the direct
targets of the measure'.[177]
This applies to the legislature in enacting or maintaining existing laws, and
the UN Committee has given the following guidance as to when a child's
interests may be affected:
Indeed, all actions taken by a State affect children in one
way or another. This does not mean that every action taken by the State needs
to incorporate a full and formal process of assessing and determining the best
interests of the child. However, where a decision will have a major impact on a
child or children, a greater level of protection and detailed procedures to
consider their best interests is appropriate.[178]
1.539
In this regard, it is questionable whether the legal recognition of a
parent's relationship would have a major impact on a child.
1.540
However, assuming it would, it is necessary to assess whether
legislating to allow same-sex marriage would promote or limit the rights of the
child to have his or her best interests assessed and taken into account as a
primary consideration. There is no evidence to demonstrate that legal
recognition of same-sex parents' relationships would be contrary to the best
interests of the children of those couples.
1.541
In contrast, there is some evidence suggesting that children living with
cohabiting, but unmarried, parents may do less well than those with married
parents.[179]
There is also some evidence that children of same-sex parents 'felt more secure
and protected' when their parents were married.[180]
1.542
Further, to the extent that any existing laws provide greater protection
for married couples compared to non-married couples, extending the protection
of marriage to same-sex couples may indirectly promote the best interests of
the child.
1.543
Therefore, there is nothing to demonstrate that extending the legal
recognition of marriage to same-sex couples would constitute a limitation on
the best interests of the child; rather, it may promote the best interests of
the child.[181]
The committee has assessed the bill against the rights in
the Convention on the Rights of the Child. As the bill is limited to the legal
recognition of a relationship between two people, and does not regulate
procreation or adoption, the committee is of the view that the rights of the
child are not engaged by the bill. In relation to the obligation to consider
the best interests of the child, to the extent that the bill engages this
right, the committee is of the view that the bill does not limit, and may
promote, the obligation to consider the best interests of the child.
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