Concluded matters
2.1
This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
2.2
Correspondence relating to these matters is included at Appendix 3.
Social Services Legislation Amendment (Enhanced Welfare Payment Integrity)
Bill 2016
|
Purpose
|
This bill enables
departure prohibition orders (DPO) to prevent social welfare payment recipients
who have outstanding debts and have failed to enter into a repayment
arrangement from leaving the country
|
|
Portfolio
|
Social services
|
|
Introduced
|
House of representatives, 2
March 2016
|
|
Rights
|
Freedom of movement (see Appendix
2)
|
|
Previous report
|
Thirty-sixth Report of
the 44th Parliament (16
March 2016)
|
Background
2.3
The committee examined the bill in its Thirty-sixth
Report of the 44th Parliament (16 March 2016) and requested a response from
the minister by 1 April 2016. The bill lapsed at the prorogation of parliament
on 17 April 2016. The measures in this bill were reintroduced in Schedule 13 of
the Budget Savings (Omnibus) Bill 2016.
2.4
The minister's response to the committee's inquiries was received on
2 May 2016. The response is discussed below and is reproduced in full at Appendix 3.
Departure prohibition orders
2.5
The bill inserts provisions into the Social Security Act 1991, A New
Tax System (Family Assistance) (Administration) Act 1999,
Paid Parental Leave Act 2010 and the Student Assistance Act
1973, which empower the Secretary of the Department of Social Services (the
secretary) to make a Departure Prohibition Order (DPO) if:
-
a person has one or more debts to the Commonwealth under a
relevant Act;
-
the person does not have satisfactory arrangements in place to
repay the debt; and
-
the secretary believes on reasonable grounds that it is desirable
to make the order to ensure the person does not leave Australia without having
paid the debt(s) or having satisfactory repayment arrangements in place.
2.6
Before making a DPO, the secretary must have regard to the following
matters:
-
the capacity of the person to pay the debt(s);
-
whether any recovery action has been taken to recover any such
debt(s), and the outcome of that action;
-
the length of time for which any debt has remained unpaid after
the day on which it became due and payable; and
-
such other matters as the secretary considers appropriate.[1]
2.7
A person in respect of whom a DPO has been issued may not leave
Australia unless authorised by the secretary or until the DPO has been revoked
or set aside by a court.
2.8
The previous human rights analysis of the bill noted that, by
prohibiting persons with social security debts from leaving Australia, the bill
engages and limits the right to freedom of movement.
2.9
That analysis noted that the measure pursued a legitimate objective,
being to encourage the repayment of social security debts by people who are no
longer recipients of social welfare, and was rationally connected to that
objective.
2.10
However, the analysis of the bill raised questions in relation to the
proportionality of the proposed measures. In particular, notwithstanding the
matters to which the secretary must have regard before making a DPO (see
paragraph [2.6] above), it expressed concerns regarding the lack of minimum
thresholds on the amount of outstanding debt or the length of time a debt
remains unpaid before a DPO could be made.
2.11
Accordingly, the committee sought the advice of the minister as to
whether the limitation is a reasonable and proportionate measure for the
achievement of its stated objective, in particular whether the power to make a
DPO is sufficiently circumscribed to ensure it operates in the least rights
restrictive manner.
Minister's response
2.12
The minister acknowledges that DPOs engage and limit the right to
freedom of movement, but states that he considers that the restriction on the
right is both proportionate and reasonable to ensure a fair and sustainable
welfare system. The minister states that the Australian Government will only
target people with a social welfare payment debt who refuse to enter into, or honour,
an acceptable repayment arrangement, and who have the means to repay their
debts to the Commonwealth.
2.13
The minister notes that the secretary will not make a DPO unless they
believe, on reasonable grounds, that it is desirable to make the order to ensure
the person does not leave Australia for a foreign country without having wholly
paid the debt, or there are satisfactory arrangements in place to repay the
debt.
2.14
The minister also advises that procedures will be put in place for the
issuing of a Departure Authorisation Certificate (DAC) to allow a person
subject to a DPO to travel overseas in certain circumstances, including on
humanitarian grounds.
2.15
The minister states that, while the bill does not set minimum thresholds
on the amount of outstanding debt or the length of time that a debt remains
unpaid, these factors will be considered. In relation to the matters to which
the secretary must have regard before making a DPO, the minister notes:
-
capacity to pay the debt: people with debts are encouraged
to talk to Centrelink about their ability to pay off their debt over time. In
cases of severe financial hardship, a thorough review of a debtor's capacity to
repay will be undertaken, and debtors will be given a reasonable amount of time
to repay their debt;
-
whether any debt recovery action has been taken and the
outcome of the recovery action: the making of a DPO will be a debt recovery
method of last resort (as is the case with child support debts) once other
viable debt recovery mechanisms have been exhausted and the debtor has
continually, without reasonable grounds, failed to make a satisfactory
arrangement;
-
the length of time the debt has remained unpaid: as
previously indicated, a DPO will be issued as a last resort and it is therefore
anticipated that the debt will have been overdue for a considerable amount of
time; and
-
any other matters the secretary considers appropriate:
these matters are not defined, and relate to the circumstances of the
particular case. It is expected that the value of the debt would be a key
factor for consideration. It is expected than any factors considered relevant
to the decision, and the impact it has on the decision, would be clearly
documented.
2.16
The consideration of the matters underlined above in the making of a DPO
is likely to aid the proportionality of the operation of the proposed scheme
and to assist with ensuring that DPOs are used in a least rights restrictive manner.
A DPO is a severe measure for debt recovery, and accordingly it is appropriate
that, as the minister has clarified, the making of a DPO is a measure of last
resort, and that the value of the debt is a key factor in the secretary's
consideration, in addition to the mandatory considerations set out in the
legislation.
2.17
It is also noted that procedures are to be in place for departure to be
authorised in certain circumstances, including humanitarian ones. In this
regard, it will be important that travel in compassionate circumstances, or for
reasons of work, be authorised in order for the measure to operate in a
reasonable and proportionate manner. The minister has not provided the detail
of the specific procedures for when authorisation is to be granted, however the
expectation is that, and in order for this authorisation to be meaningful to a
person subject to a DPO it is vital that, the authorisation will be granted
promptly and reasonably in advance of the necessary travel, which may in some
circumstances be urgent.
2.18
However, in relation to the minister's advice regarding the likely or
expected application or relevance of the matters set out in paragraph [2.15] to
the making of a DPO, and the availability of DACs, it is noted that these
factors are elements of the intended operation of the measure administratively
that have not been made express legislative requirements. For example, while
the stated intention is to rely on DPOs only as a last resort, this safeguard
is not contained in the proposed legislation itself.
2.19
Therefore, while the legislative and administrative safeguards explained
by the minister taken together may ensure that the measure operates in a manner
that is proportionate and compatible with human rights, there is a risk that, in
some cases DPOs may be applied in circumstances where they are not the least
rights restrictive way to achieve the objective of encouraging the repayment of
social security debts. Accordingly, to ensure compatibility with the right to
freedom of movement, the bill could be amended to add a wider range of specific
safeguards.
Committee comment
2.20
The committee thanks the minister for his response and has concluded
its examination of this issue.
2.21
Noting the preceding legal analysis, the committee acknowledges the
scope for reasonable differences of opinion as to whether there are sufficient
legislative safeguards to ensure that DPOs are proportionate as a matter of
international human rights law.
2.22
The committee notes that, on the one hand, it may be thought that the
matters which the secretary is required to consider in making a DPO, with the
benefit of the clarification provided by the minister regarding the intended
application of proposed section 102A of the bill, are likely to provide a
sufficient safeguard on the use of DPOs, along with the use of DACs allowing
people subject to a DPO to travel overseas in certain circumstances. On this
view, the measure is likely to be proportionate and therefore to be a
permissible limitation on the right to freedom of movement.[2]
2.23
On the other hand, notwithstanding that the minister's response has
provided useful information regarding the likely or expected considerations and
discretionary safeguards that will be applied in the making of DPOs, and these
factors could mean that a DPO imposes a proportionate limit on the right to
freedom of movement in individual cases, these factors are elements of policy
or administrative practice rather than legislatively based safeguards relating
to the making of DPOs. On this view, it could be reasonably said that there is
a real risk that DPOs may not in all cases be the least rights restrictive way
of achieving the legitimate objective of encouraging the repayment of social
security debts. To address this concern and ensure the proportionality of the
measure, the bill could be amended to insert a requirement that, before making
a DPO, the secretary must have regard to (a) the size of the debt and (b)
whether the DPO is a measure of last resort in the particular case.[3]
Migration Amendment (Resolving the Asylum Legacy
Caseload) Regulation 2015 [F2015L00551]
|
Purpose
|
The regulation makes a
number of amendments consequential to the Migration and Maritime Powers
Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014
|
|
Portfolio
|
Immigration and Border
Protection
|
|
Authorising legislation
|
Migration Act 1958
|
|
Disallowance
|
Disallowance date has
passed
|
|
Rights
|
Freedom of movement (see Appendix
2)
|
|
Previous reports
|
Twenty-fourth Report of
the 44th Parliament; Thirty-sixth
Report of the 44th Parliament
|
Background
2.24
This regulation implements aspects of the Migration and Maritime
Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014
(RALC Act).[4]
2.25
The committee reported on the regulation
in its Twenty-fourth Report of the 44th Parliament and Thirty-sixth
Report of the 44th Parliament.[5]
In that last report, the committee considered a response from the minister, and
sought a further response by 1 April 2016.
2.26
The minister's response to the committee's inquiries was received on
28 April 2016. The response is discussed below and is reproduced in full
at Appendix 3.
Safe haven enterprise visas
2.27
Safe haven enterprise visas (SHEVs) were created by the RALC Act. These
visas may be granted to persons who are found to be owed protection obligations
and who indicate an intention to work or study in regional areas in Australia.
The regulation sets out certain criteria for the grant of a SHEV.[6]
2.28
The previous human rights analysis of the regulation noted that people
who hold a SHEV, or whose last substantive visa was a SHEV, are barred from making
a valid application for a Bridging Visa B (a category of visa which allows
overseas travel). As the SHEV class visa has a more restricted travel facility than
the Bridging Visa B class, the analysis noted that prohibiting SHEV holders
from applying for a Bridging Visa B engages and limits the right to freedom of
movement.
2.29
The previous human rights analysis noted that, while the stated
objective of protecting the integrity of the protection visa regime may be
regarded as a legitimate objective for the purposes of international human
rights law, it was unclear how denying a person the right to travel overseas is
rationally connected to (that is, effective to achieve) that objective.
2.30
Further, if approved by the minister in writing, the SHEV regime allows
a visa holder to travel in compassionate and compelling circumstances to places
other than the country in respect of which protection was sought.[7]
It is unclear why it is necessary to require written approval before the
applicant is able to travel to any country rather than just to the
country in respect of which protection was sought. Travel to other countries would
not appear to indicate, in and of itself, that a person is not in need of
protection.
2.31
The minister's first response did not fully explain how the measure is
rationally connected or proportionate to its stated objective. Instead, the
minister argued that the measure was not a limit on the right to freedom of
movement as SHEV and former SHEV holders could leave Australia if they wished.
2.32
However, this view fails to acknowledge that if a SHEV holder left
Australia without the minister's approval they would be prevented from
returning to Australia. The previous human rights analysis noted that the right
to leave a country encompasses both the legal right and practical ability to
leave a 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.[8]
Being prevented from returning to Australia at the conclusion of travel is a
clear limit on a person's ability leave Australia.
2.33
The committee therefore sought the further advice of the minister as to
whether there is a rational connection between the limitation and its stated
objective.
2.34
In particular, the committee inquired as to how denying access to travel
to SHEV holders to any country furthers the objective of maintaining the
integrity of the protection visa regime; whether the limitation is a reasonable
and proportionate measure for the achievement of that objective; and why it is
necessary to prohibit access entirely to Bridging Visa B for all SHEV, or
former SHEV, holders.
Minister's response
2.35
The minister's response does not provide any additional information addressing
the rational connection or proportionality of restricting SHEV holders, or
former SHEV holders, from being able to apply for a Bridging Visa B. Instead,
the minister maintains the previously stated position that the removal of such
access is not a restriction of the right to freedom of movement.
2.36
In relation to the concerns regarding the ability of SHEV holders to
obtain travel documents, the minister's response notes the ability of anyone in
Australia or its territories to apply for a travel document to allow that
person to leave Australia. However, it also notes that this would not confer a
right to return to Australia.
2.37
As set out above, the previous human rights analysis noted that the
right to leave a country encompasses both the legal right and practical ability
to leave a country. It applies not just to departure for permanent emigration
but also for the purpose of travelling abroad; and applies to every person
lawfully within Australia, including those who have been recognised as
refugees. States are therefore required to provide necessary travel documents
to ensure this right can be realised.[9]
A person who has been recognised as a refugee, but does not have the necessary
travel documents to 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.
2.38
Without specific information from the minister 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
that objective, it cannot be concluded that the measure is a justifiable limit
on the right to freedom of movement.
Committee response
2.39
The committee thanks the minister for his further response and has
concluded its examination of this issue.
2.40
The introduction of SHEVs engages and limits the right to freedom of
movement for SHEV holders; and that the minster has not provided sufficient
justification so as to enable a conclusion that the regulation is compatible with
this right.
2.41
The committee therefore recommends that, in order for the measure to
be compatible with the right to freedom of movement, consideration be given to
amending the SHEV regime such that :
-
the restriction on access to Bridging Visa B for SHEV, or
former SHEV, holders be lifted; or
-
the restrictions on travel for SHEV holders are removed.
Mr Ian Goodenough MP
Chair
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