Chapter 2
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 1.
Environment Protection and Biodiversity Conservation Amendment (Standing)
Bill 2015
Portfolio: Environment
Introduced: House
of Representatives, 20 August 2015
Purpose
2.3
The Environment Protection and Biodiversity Conservation Amendment
(Standing) Bill 2015 (the bill) seeks to amend the Environment Protection
and Biodiversity Conservation Act 1999 (the Environment Act) to remove
section 487 of the Environment Act. Currently, section 487 expands the meaning of
'person aggrieved' in the Administrative Decisions (Judicial Review) Act
1977.
2.4
Measures raising human rights concerns or issues are set out below.
Background
2.5
The committee first commented on the bill in its Twenty-seventh
Report of the 44th Parliament (first report), and requested
further information from the Minister for the Environment as to whether the
bill was compatible with the right to health and a healthy environment.[1]
2.6
The committee considered the minister's response in its Thirty-fifth
Report of the 44th Parliament (previous report), and sought
further information from the minister in order to conclude its examination of
the bill.[2]
Removal of extended standing to seek judicial review of decisions or
conduct under the Environment Act
2.7
Currently, section 487 of the Environment Act gives standing rights (the
right to bring an action before the courts) to individuals and organisations
who, at any time in the preceding two years, have engaged in a series of
activities for the protection or conservation of, or research into, the
Australian environment. This means that currently those individuals and
organisations can bring an action to seek judicial review of actions taken, or
not taken, under the Environment Act. The bill would remove the right of these individuals
and organisations to bring judicial review in relation to decisions made (or
failed to be made) under the Environment Act or conduct engaged under that Act
(or regulations).
2.8
The objectives of the Environment Act include protecting the environment
and ecosystems and promoting ecologically sustainable development, which
includes principles of inter-generational equity; that the present generation
should ensure the health, diversity and productivity of the environment for the
benefit of future generations.[3]
2.9
In its first report, the committee considered that removing the extended
standing provisions could result in a failure to properly enforce the
protections under the Environment Act, and as a result may engage and limit the
right to health and a healthy environment.
Right to health and a healthy
environment
2.10
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).
Compatibility of the measure with
the right to health and a healthy environment
2.11
The statement of compatibility did not consider whether the right to
health and a healthy environment was engaged by this measure. The committee
therefore sought the advice of the Minister for the Environment as to whether
the bill limits the right to a healthy environment and, if so, further
information as to the legitimate objective, rational connection and
proportionality of the measures. The minister's response explained that while
there is no standalone right to a healthy environment, the right to health
embraces a wide range of socio-economic factors that promote conditions in
which people can lead a healthy life.
2.12
The minister agreed that the existing extended standing provisions under
the Environment Act may facilitate judicial review that ensures that
environmental law is correctly applied, thereby protecting public health.
2.13
The minister's response noted the existence of an emerging risk that the
extended standing provisions are being used to deliberately disrupt and delay
key projects and infrastructure development. The committee considered that this
may be a legitimate objective to justify the limitation on the right to health
for the purposes of international human rights law, however, further evidence
as to the nature and extent of the emerging risk was required.
2.14
The committee therefore sought further advice from the Minister for the
Environment as to whether the measure imposes a justified limitation on the
right to health, including evidence as to the nature and extent of the emerging
risk of the extended standing provisions being used to disrupt and delay key
project and infrastructure development.
Minister's response
Thank you for your letter of 25 February 2016 in which the
Parliamentary Joint Committee on Human Rights requested further advice
regarding the human rights compatibility of the Environment Protection and
Biodiversity Conservation Amendment (Standing) Bill 2015.
In particular, the Committee has requested further advice as
to whether the repeal of the extended standing provisions of the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC Act) imposes a
justified limitation on the right to health. The Committee has also requested
evidence as to the nature and extent of the emerging risk of the extended
standing provisions being used to disrupt and delay key project and
infrastructure development.
In response to the Committee's request, I refer the Committee
to a campaign document titled Stopping the Australian Coal Export Boom:
Funding proposal for the Australian anti-coal movement prepared in 2011 by
a number of environmental organisations. As I mentioned in my second reading
speech, the strategy outlined in the document is "to 'disrupt and delay'
key projects and infrastructure while gradually eroding public and political
support for the industry and continually building the power of the movement to
win more."
In relation to litigation the document goes on to state that
"legal challenges can stop projects outright, or can delay them, in order
to buy time to build a much stronger movement and powerful public campaigns.
They can also expose the impacts, increase costs, raise investor uncertainty,
and create a powerful platform for public campaigns" (section 4.1).
The purpose of the Environment Protection and Biodiversity
Conservation Amendment (Standing) Bill 2015 is to bring the arrangements for
standing to make a judicial review application for a decision made under the
EPBC Act in-line with the broad Commonwealth standing provisions. This will
ensure that those people, organisations or community groups who have a genuine
and direct interest in a matter are able to challenge EPBC Act administrative
decisions as provided for under the Administrative Decisions (Judicial
Review) Act 1977 and the Judiciary Act 1903. This is consistent with
the majority of Commonwealth legislation.[4]
Committee response
2.15
The committee thanks the Minister for the Environment for his
response.
2.16
The committee notes the importance of ensuring that key projects and
infrastructure development are not delayed where all applicable environmental
standards have been met.
2.17
The committee notes the minister's advice regarding the prevalence of
disruption campaigns as the justification for the measures in the bill. The
committee considers that the minister's response has not fully explained the
link between these campaign materials and the use of the extended standing
provisions in the Environment Act so as to fully justify the provisions in the
bill.
2.18
Nevertheless, the committee notes that the bill would not change
existing environmental standards that seek to protect the right to health
through the protection of the environment. The committee also notes that the
bill preserves the ability of people with a genuine and direct interest in a
matter to challenge decisions under the Environment Act.
2.19
Accordingly, given the existing environmental protections under the Environment
Protection and Biodiversity Conservation Act 1999, which seek to protect
the right to health, removing the extended standing provisions may be
compatible with the right to health.
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
2.20
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.
2.21
Measures raising human rights concerns or issues are set out below.
Background
2.22
The committee first reported on the instrument in its Thirtieth
Report of the 44th Parliament (first report) and requested
further information from the Minister for Employment as to whether the
instrument was compatible with the right to privacy.[5]
2.23
The committee considered the minister's response in its Thirty-fourth
Report of the 44th Parliament (previous report) and sought
further information from the minister in order to conclude its examination of
the instrument.[6]
Alcohol and drug testing of construction workers
2.24
Schedule 3 of the instrument sets out requirements relating to drug and
alcohol testing that a fitness for work policy must address.
2.25
The committee considered in its previous analysis that establishing a
policy framework for testing workers for drugs and alcohol engages and limits
the right to privacy.
Right to privacy
2.26
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 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
2.27
The statement of compatibility acknowledges that drug and alcohol
testing implemented under the instrument engages the right to privacy.
2.28
The committee has previously considered that the objective, which is to
ensure that building and construction workplaces are drug and alcohol-free, is
important. The committee also considered that the objective is legitimate for
the purposes of international human rights law, and that the measures are
rationally connected to the objective.
2.29
However, the committee queried whether the instrument imposes a
proportionate limitation on the right to privacy. On the face of the
instrument, there is no requirement that the drug and alcohol policy have
appropriate and necessary safeguards, or indeed any safeguards, to protect the
privacy of individuals who are subject to testing.
2.30
The minister's first response did not explain the safeguards that would
apply to drug and alcohol testing so as to ensure that the limitation on the
right to privacy is a reasonable and proportionate measure to achieve the
stated objective.
2.31
The minister stated that the measures do not prescribe the contents of a
fitness for work policy, which would be decided at a workplace level subject to
existing safety, privacy and industrial laws.
2.32
The committee considered that more information was required to establish
that there were sufficient safeguards around drug and alcohol testing. The
committee therefore requested further advice from the Minister for Employment
as to the proportionality of the requirement that construction workers undergo
drug and alcohol testing, in particular, whether there are sufficient
safeguards in place to protect the right to privacy.
Minister's response
This letter is in response to
your letter of 23 February 2016 concerning the Building Code (Fitness for Work/Alcohol
and Other Drugs in the Workplace) Amendment Instrument 2015.
The Parliamentary Joint Committee on Human Rights (the
Committee) sought my further advice about the human rights compatibility of
this instrument. I consider the measures are proportional and it is in the
public interest to take steps to ensure that construction workers are not
affected by drugs or alcohol in the workplace.
Should the Committee require further information, please
contact my office.[7]
Committee response
2.33
The committee thanks the Minister for Employment for her response.
2.34
The committee notes that the minister's response merely states that the
measures are 'proportional' and in the public interest. The minister's response
provides no evidence or reasoning to support this view.
2.35
The committee's usual expectation where a measure may limit a human
right is that there is a reasoned and evidence-based explanation of how that
limitation is justified. Such a justification must demonstrate that the measure
is proportionate. This conforms with the committee's Guidance Note 1,[8] and the
Attorney-General's Department's guidance on the preparation of statements of
compatibility and advice on justifying limitations.[9]
2.36
Alcohol and drug testing is common in law enforcement agencies and the
committee has previously considered that such schemes are compatible with the
right to privacy on the basis that these testing regimes include rigorous
safeguards. For example, the Australian Border Force (Alcohol and Drug Tests)
Rule 2015, which sets out the rules for alcohol and drug testing of officers of
the Australian Border Force, includes a suite of safeguards including that:
-
the alcohol or drug test must be conducted in a respectful manner and in
circumstances affording reasonable privacy;
-
the test must not be conducted in the presence or view of a person whose
presence is not necessary and must not involve the removal of more clothing
than is necessary for the conduct of the test;
-
if a hair sample is required, that it collected in the least painful
manner and not from the genitals or buttocks;
-
a body sample collected for an alcohol or drug test must be kept in a
secure location and destroyed after a prescribed period; and
-
that information revealed by the drug and alcohol test be shared only
with individuals authorised by the legislative instrument.[10]
2.37
In this instance, the legislative instrument establishes a requirement
that a fitness for work policy includes frequent and periodic drug and alcohol
testing without providing for any safeguards as to how the information obtained
from such testing is to be kept, used or shared.
2.38
In the absence of any further advice or reasoning from the Minister
for Employment as to any safeguards which are in place, even recognising the
important objective of ensuring construction workplaces are drug and
alcohol-free, the committee can only conclude that the instrument provides
insufficient safeguards to ensure that the requirement that construction workers
undergo drug and alcohol testing is a proportionate limitation on the right to
privacy.
Royal Commissions Amendment Regulation 2016 (No. 1) [F2016L00113]
Portfolio:
Prime Minister and Cabinet
Authorising
legislation: Royal Commissions Act 1902
Last day to
disallow: 21 June 2016 (Senate)
Purpose
2.39
The Royal Commissions Amendment Regulation 2016 (No. 1)
(the instrument) amends the Royal Commissions Regulations 2001
(the principal regulations) to enable information gathered by the
Royal Commission into Trade Union Governance and Corruption (TURC) to be given,
accessed and used by different persons and bodies.
2.40
Witnesses before Royal Commissions are afforded only a limited privilege
against self-incrimination (as per section 6A of the Royal Commissions Act
1902 (RC Act)), and the instrument dispenses with the requirement to
individually notify the person or body who initially provided such information
to the TURC, when information will be transferred to a different person or
body.
2.41
Measures raising human rights concerns or issues are set out below.
Background
2.42
The committee previously considered the instrument in its Thirty-sixth
Report of the 44th Parliament (previous report), and
requested further information from the Assistant Minister to the Prime Minister
as to whether the instrument was compatible with the right to a fair trial,
fair hearing rights and the right to privacy.[11]
Sharing of information in circumstances where the witness was not afforded
the privilege against self-incrimination
2.43
The instrument enables information gathered by the TURC, in
circumstances where the witness was not afforded the privilege from
self-incrimination, to be given, accessed and used by different persons and
bodies without notification to the person or body who initially provided it to
the TURC.
2.44
The committee considered in its previous report that the measure engages
the right to a fair trial, fair hearing rights and the right to privacy.
Right to a fair trial and fair
hearing rights
2.45
The right to a fair trial and fair hearing rights are protected by
article 14 of the International Covenant on Civil and Political Rights (ICCPR).
The right applies to both criminal and civil proceedings, to cases before both
courts and tribunals and to military disciplinary hearings. The right
guarantees to all persons a fair and public hearing by a competent, independent
and impartial tribunal established by law.
2.46
Specific guarantees of the right to a fair trial in the determination of
a criminal charge guaranteed by article 14(1) are set out in article 14(2) to
(7). These include the presumption of innocence (article 14(2)) and minimum
guarantees in criminal proceedings, such as the right not to incriminate
oneself (article 14(3)(g)) and a guarantee against retrospective criminal laws
(article 15(1)).
Compatibility of the measure with
the right to a fair trial and fair hearing rights
2.47
The statement of compatibility explains that the provision of access and
use of information gathered by the TURC is for the purposes of expediting the
prosecution of criminal and civil wrongdoing and the committee previously
acknowledged that this is a legitimate objective. The committee also considered
that the measures are rationally connected to this legitimate objective.
2.48
However, the committee considered that the statement of compatibility
had not demonstrated that the instrument imposes a proportionate limitation on
the right to a fair trial and fair hearing rights in pursuit of that legitimate
objective.
2.49
The committee considered that sharing information gathered by the TURC,
in circumstances where the witness was not afforded the privilege from self‑incrimination,
to be given, accessed and used by different persons and bodies for purposes as
broad as 'the administration of a law' engages and limits the right to a fair
trial and fair hearing rights. The committee therefore sought the advice of the
Assistant Minister to the Prime Minister as to whether the measure is a
proportionate means of achieving the stated objective.
Right to privacy
2.50
Article 17 of the ICCPR prohibits arbitrary or unlawful interferences
with an individual's privacy, family, correspondence or home. The right to
privacy includes respect for informational privacy, including:
-
the right to respect for private and confidential information,
particularly the storing, use and sharing of such information; and
-
the right to control the dissemination of information about one's
private life.
Compatibility of the measure with
the right to privacy
2.51
Under the RC Act, it is an offence to fail to give evidence or produce documents
to a Royal Commission if a person is summonsed to appear or produce documents.[12]
When giving evidence, which may be on oath or affirmation, a person is not
excused from answering a question on the grounds of self-incrimination, or
other grounds of confidentiality.[13]
2.52
The statement of compatibility acknowledged that this engages the right
to privacy. As noted above at paragraph [2.47], the committee accepted that the
measure pursues a legitimate objective, and that it is rationally connected to
this legitimate objective. The committee had concerns regarding the proportionality
of the measure.
2.53
The statement of compatibility did not explain why it is necessary to
permit the provision of access and use of all information gathered by the TURC.
For example, it is unclear, whether the regulation could result in the
provision of confidential information to another person or body without
consent.
2.54
The committee also considered that the statement of compatibility did
not sufficiently explain why it is necessary to share information gathered by
the TURC to a person or body 'responsible for advising a Minister... about the
administration of a law,' if the intention is that the records be used to
expedite the prosecution of criminal and civil wrongdoing.
2.55
The committee therefore sought the advice of the Assistant Minister to
the Prime Minister as to whether the measure is a proportionate means of
achieving the stated objective.
Assistant Minister's response
I note the Committee considers that this transfer of
information engages the right to privacy and the rights to a fair trial and
fair hearing. These rights are said to be engaged because when a witness gives
evidence to a Royal Commission they are not able to invoke the privilege
against self‑incrimination (unless there are offence charges on foot).
The Committee acknowledges that the information transfer is 'rationally
connected' to the legitimate objective of expediting the prosecution of
criminal and civil wrongdoing. However, the Committee has requested more
information to support that the transfer of information authorised by the Regulation
is a proportionate limitation on the right to a fair trial and fair hearing
rights in pursuit of that legitimate objective.
The partial abrogation of the privilege against
self-incrimination in the Royal Commissions Act 1901 supports a
Commissioner's function to inquire into matters of public importance. To the
extent any records contain incriminating evidence given by a witness, the Royal
Commission Act also gives some protection to the witness through the engagement
of 'use' immunity (section 6DD). In this way, the evidence cannot be used
against the person in any civil or criminal proceeding but may be used to
obtain further evidence against the person. The Regulation does not abrogate
that protection.
The Letters Patent expressly commissioned Commissioner John
Dyson Heydon AC QC to inquire, in part, into any conduct which may amount to a
breach of any law, regulation or professional standard by any officers of an
employee association, in relation to that entity.
When the Royal Commission was operating, the Commissioner had
power to communicate information that may relate to a contravention of a law to
certain persons and bodies, including to Attorneys-General, the Director of
Public Prosecutions, police and a person or authority responsible for the administration
or enforcement of the law. Now that the Commission has ceased, the Regulation
appropriately complements that power by enabling the Secretary to continue to
give records, upon request, to a person or body that has law enforcement
functions or a responsibility to advise a Minister about the administration of
a law. The records would need to be relevant to the performance of those
functions.
As further safeguards to privacy, fair trial and hearing
rights, the receiving person or body will be obliged to ensure the 'use'
immunity is not infringed, as well as to comply with any other obligations
affecting a person's rights when discharging duties in connection with law
enforcement or the administration of the law.
In so far as the statement of compatibility states that
'provision of access to the Commission's records is the only way by which
criminal and civil offences can be further investigated and prosecuted', I also
note that statement is intended to clarify that while a Royal Commission has strong
information gathering powers it does not have power to enforce a law.[14]
Committee response
2.56
The committee thanks the Assistant Minister to the
Prime Minister for his response.
2.57
Under the RC Act, it is an offence to fail to give evidence or produce documents
to a Royal Commission if a person is summonsed to appear or produce documents.[15]
When giving evidence, which may be on oath or affirmation, a person is not
excused from answering a question on the grounds of self-incrimination, or
other grounds of confidentiality.[16]
These broad powers granted to a Royal Commission are not ordinarily available
to other agencies of government.
2.58
The RC Act is designed to enable the establishment of royal commissions
with significant information gathering powers but not law enforcement powers.
Royal commissions have historically been established to inquire into often
complex and systemic issues that have thwarted traditional law enforcement
efforts.
2.59
The investigative functions of a royal commission sit, in part, outside
the protections of the right to a fair trial as a royal commission is not
determining a criminal charge but undertaking a broader examination of an
issue.
2.60
However, article 14 and the right to a fair trial, is directly relevant
where a person is required to give information to a royal commission which may
incriminate themselves and that incriminating information can be used either
directly or indirectly by law enforcement agencies to investigate criminal
charges.
2.61 The assistant minister's response notes that the RC Act contains a 'use
immunity; such that where a person has been required to give incriminating
evidence, that evidence cannot be used against the person in any civil or
criminal proceeding but may be used to obtain further evidence against the person.
2.62
Ordinarily, the committee looks to both a 'use' and a 'derivative use'
immunity to justify limitations on the protections against self-incrimination. A
'derivative use' immunity provides that self-incriminatory information or
documents provided by a person cannot be used to investigate unlawful conduct
by that person but can be used to investigate third parties.
2.63
The need for both a 'use' and a 'derivative use' immunity where the
privilege against self-incrimination is abrogated is consistent with the Commonwealth
Guide to Framing Offences.[17]
2.64
The assistant minister's response does not explain the need to exclude
'derivative use' immunities from the RC Act and accordingly does not justify
the limitation on the right to a fair trial (right not to incriminate oneself).
Accordingly, the committee considers that the RC Act may warrant further
scrutiny for compatibility with human rights.
2.65
Noting these concerns with the RC Act, the instrument itself does not
expand the powers of the royal commission nor remove the 'use immunity' that
attaches to the evidence that the commission collected in circumstances where
an individual was required to provide self-incriminating evidence. Accordingly,
the committee's primary concern is with the RC Act and not the instrument.
2.66
In relation to the right to privacy, records of the royal commission may
only be given to a person or body that has law enforcement functions or a
responsibility to advise a minister about the administration of a law. In
addition, the records can only be requested when they are necessary for the
performance of these functions. The committee considers that these restrictions
are sufficient to ensure that the instrument only imposes a proportionate
limitation on the right to privacy.
2.67
The committee's assessment of the sharing of information in
circumstances where the witness was not afforded the privilege against
self-incrimination against articles 14 and 17 of the International Covenant on
Civil and Political Rights (right to a fair trial, fair hearing rights and the
right to privacy) is that the measure may be compatible with international
human rights law.
The Hon Philip Ruddock MP
Chair
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