New and continuing matters

1.1        This chapter provides assessments of the human rights compatibility of:

• bills introduced into the Parliament between 8 and 10 August (consideration of 2 bills from this period has been deferred);[1]
• legislative instruments received between 23 June and 6 July (consideration of 10 legislative instruments from this period has been deferred);[2] and
• bills and legislative instruments previously deferred.

1.2        The chapter also includes reports on matters previously raised, in relation to which the committee seeks further information following consideration of a response from the legislation proponent.

1.3        The committee has concluded its consideration of the Broadcasting Legislation Amendment (Broadcasting Reform) Bill 2017 that was previously deferred.

Instruments not raising human rights concerns

1.4        The committee has examined the legislative instruments received in the relevant period, as listed in the Journals of the Senate.[3] Instruments raising human rights concerns are identified in this chapter.

1.5        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.

Response required

1.6                  The committee seeks a response or further information from the relevant minister or legislation proponent with respect to the following bills and instruments.

Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017

Purpose	Seeks to make a range of amendments to the Australian Citizenship Act 2007 and other legislation including eligibility requirements, good character requirements and review of decisions
Portfolio	Immigration and Border Protection
Introduced	House of Representatives, 15 June 2017
Rights	Obligation to consider the best interests of the child; children's right to nationality; children to be heard in judicial and administrative proceedings; quality of law; fair hearing; to take part in public affairs; freedom of movement (see Appendix 2)
Status	Seeking additional information

Background

1.7                  The committee previously examined the Australian Citizenship and Other Legislation Amendment Bill 2014 (2014 bill) in its Eighteenth Report of the 44^th Parliament and Twenty-Fourth Report of the 44^th Parliament.[4]

1.8                  The 2014 bill lapsed at the prorogation of the 44^th parliament.

1.9                  The Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 (2017 bill) contains a number of reintroduced measures that were previously contained within the 2014 bill as well as a number of new measures.

1.10             The analysis below deals with both new and reintroduced measures. 

Requirement to provide evidence of English language proficiency

1.11      The bill proposes to amend the general eligibility criteria under section 21(2) of the Australian Citizenship Act 2007 (Citizenship Act), to require that applicants have 'competent English'. This is a new measure not previously introduced. The current provision requires applicants to possess 'basic English', demonstrated via the existing citizenship test.^[5] Proposed section 23(9)(a) provides that the minister may, by legislative instrument, determine the circumstances in which a person has competent English.

Compatibility of the measure with the right to equality and non-discrimination

1.12      The right to equality and non-discrimination is protected by articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR), article 2 of International Convention on Economic, Social and Cultural Rights (ICESCR), article 2 of the Convention on the Rights of the Child (CRC), article 5 of the Convention on the Rights of Persons with Disabilities (CRPD), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).  

1.13      'Discrimination' under the ICCPR encompasses both measures that have a discriminatory intent (direct discrimination) and measures which have a discriminatory effect on the enjoyment of rights (indirect discrimination).^[6] The UN Human Rights Committee has explained indirect discrimination as 'a rule or measure that is neutral at face value or without intent to discriminate', which exclusively or disproportionately affects people with a particular personal attribute (for example race, national origin, language, social origin or disability).^[7]

1.14      Whilst states enjoy some discretion in differentiating between nationals and non-nationals, they still remain bound by non-discrimination obligations where differentiating between non-nationals in requests for naturalisation and citizenship.^[8] The UN Committee on the Elimination of Racial Discrimination has stated that States are obliged to:

Ensure that particular groups of non-citizens are not discriminated against with regard to access to citizenship or naturalization, and to pay due attention to possible barriers to naturalization that may exist for long-term or permanent residents;

Recognize that deprivation of citizenship on the basis of race, colour, descent, or national or ethnic origin is a breach of States Parties’ obligations to ensure non-discriminatory enjoyment of the right to nationality...^[9]

1.15      Differential treatment will not constitute unlawful discrimination if based on reasonable and objective criteria such that it serves a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.^[10]

1.16      The measure differentiates between non-nationals in requests for citizenship on the basis of their language competency. It therefore engages the right to equality and non-discrimination on the basis of language, and may also indirectly discriminate on the basis of national origin, in causing a disproportionate impact on individuals from countries where English is not the national language or widely spoken.^[11] Raising the level of English required from basic to competent may also increase the disproportionate impact on those with disabilities that do not rise to 'mental incapacity', those who have not benefited from regular education, and/or those whose education was interrupted by war, trauma or other events.

1.17             The concern that the measure would have a disproportionately negative effect on particular groups finds some support in data on the current test, which indirectly tests basic English. The top ten countries of birth for the offshore humanitarian programme are all countries where English is not an official language.^[12] Humanitarian migrants are also more likely to have experienced traumatic events and interrupted schooling prior to migration.^[13] From 2014-2015, 98.6% of those who sat the current citizenship test passed, and 1,635 people failed. Humanitarian Programme applicants fail the current test at higher rates than other migration streams, with 8.8% failing the test compared to 0.03% of Skill Stream applicants, and 2% of the Family Stream.^[14] Humanitarian Programme applicants also sat the test 2.4 times on average, compared to 1.1 for the Skill Stream. Where a measure impacts on particular groups disproportionately, it establishes prima facie that there may be indirect discrimination.^[15]

1.18      The statement of compatibility acknowledges that the right to non-discrimination is engaged, stating:

This measure also engages Articles 2(1) and 26 of the ICCPR, described above. These Articles are engaged on the basis that the measure may be seen to discriminate on the basis of national origin by treating those applicants with lower levels of English language proficiency differently to applicants who are more proficient in the English language. However, this is not dissimilar to the current legislation which requires applicants to possess a basic knowledge of the English language; this is presently assessed through the existing citizenship test. Further, this measure emphasises the importance of having competent English language and ensures that aspiring citizens can integrate into and contribute to the Australian community, including by obtaining employment, and/or undertaking vocational/ tertiary education. Insofar as the measure may limit this right, any such limitation is thus a reasonable and proportionate response to the objective of promoting social participation and encouraging new citizens to fully participate in Australian life.

The proposed amendments increase the level of English language required to be held by applicants for citizenship by conferral. This requirement ties in with the new four-year residence requirement to provide aspiring citizens sufficient time to reach a competent level of English. This is important because English language proficiency is essential for economic participation, social cohesion and integration into the Australian community. Those who are currently entitled to the Adult Migrant English Program will still be able to access this program to improve their English language skills.^[16]

1.19      It is accepted that 'promoting social participation and encouraging new citizens to fully participate in Australian life' can be a legitimate objective for the purposes of human rights law. However, it must also be demonstrated that the limitation imposed is effective in achieving (that is, rationally connected to) that objective. It is unclear from the statement of compatibility as to whether the measure will be effective in achieving its stated objective. The statement of compatibility states that 'English language proficiency is essential for economic participation, social cohesion and integration into the Australian community', indicating that 'emphasis[ing] the importance of having competent English language' will promote full participation in Australian life.^[17] However, the measure itself excludes permanent residents if the minister is not satisfied that they meet the new 'competent English' standard from participating in Australian life as citizens. This raises questions as to whether the measure undermines its apparent objective of promoting social participation.

1.20      Should a measure be rationally connected to a legitimate objective, it must be demonstrated that the measure is a proportionate means to achieve the stated objective. Under human rights law, this requires the measure to be the least rights restrictive means of achieving the stated objective.

1.21             The statement of compatibility mentions a number of exemptions to the English language requirement.^[18] These exemptions include: persons who have a permanent or enduring physical or mental incapacity that means that the person is not capable of understanding the application, demonstrating competent English, or demonstrating an adequate knowledge of Australia and citizenship; persons over 60 or below 16 years of age; persons suffering a permanent loss or substantial impairment of hearing, speech or sight at the time that the application is made;  persons born outside Australia to former Australian citizens; and persons born in Australia who have never been a national or citizen of any country, and are not entitled to acquire the nationality or citizenship of any foreign country. These exemptions do not address all those who may be indirectly discriminated against by the measure, but do lessen the rights-restrictive nature of the measure. 

1.22      The proposed legislation does not specify what is meant by the new standard of 'competent English' and how the standard will differ from 'basic English'. Rather, details regarding the definition of 'competent English', the means of testing, and any further exemptions have been left to delegated legislation. Some information regarding the intended delegated legislation was provided in the statement of compatibility:

It is intended that the instrument will be similar, where relevant, to the Language Tests, Score and Passports 2015 (IMMI 15/005) prescribed in the Migration Regulations 1994. The instrument will specify the English language test providers, scores, and exemptions to meet the English language requirement prior to applying for citizenship by conferral.  It will also determine the situations where people are not required to undertake English language testing, for example, if they are a passport holder of the United Kingdom, the Republic of Ireland, Canada, the United States of America or New Zealand or have undertaken specified English language studies at a recognised Australian education provider.^[19]

1.23      The Language Tests, Score and Passports 2015 (IMMI 15/005) prescribe a range of potential tests and measures, with scores ranging from the International English Language Test System (IELTS) five to eight, using the General Training exam. Under the IELTS scale, band score six is the lowest level classified as a 'competent user', defined as 'the test taker has an effective command of language despite some inaccuracies, inappropriate usage and misunderstandings. They can use and understand fairly complex language, particularly in familiar situations.'^[20] Band six of the IELTS, using the Academic test, is the requisite standard for tertiary study in Australian universities.^[21] The description of the level of English remains the same for both the Academic and General Training tests.

1.24      The prospect of the measure defining 'competent English' as level six IELTS raises serious concerns as to whether it is a rationally connected and proportionate method of achieving the objective of 'promoting social cohesion and encouraging new citizens to fully participate in Australian life.' First, it is difficult to accept that tertiary-level or 'fairly complex' English is required for social cohesion or full participation in Australian life such that citizenship is to be denied to those who do not meet this standard. Second, the achievement of that level of English may, when balanced with work and/or caring duties, be unachievable for many permanent residents^[22] from countries where English is not widely spoken, who have a disability that does not rise to physical or mental incapacity, whose education was interrupted by war or trauma, or who are otherwise inexperienced in formal education settings. It raises questions as to whether a large group of permanent residents would be unable to vote, serve on a jury, access certain benefits and employment opportunities, or otherwise participate in the Australian community as citizens until they reach the age of 60. As non-citizens, they may also be more vulnerable to visa cancellation and deportation. Those who were not born in Australia, and do not hold citizenship or nationality of a foreign country, could be rendered stateless.

1.25             The statement of compatibility refers to the Adult Migrant English Program (AMEP) remaining available for certain migrants to improve their English skills. AMEP is funded by the Australian government and provides up to 510 hours of free English language lessons to eligible migrants and humanitarian entrants, who speak little to no English. On acquiring 'functional English', or approximately IELTS 4 to 5, clients must exit the program.^[23] This indicates that this program is not in fact capable of bringing adult migrants to the standard of 'competent English' as it exists under the IELTS. In any event, a recent review found that only 7% of AMEP clients achieve functional English after 500 hours of tuition.^[24] It is therefore difficult to accept that migrants will be supported to acquire the requisite level of testable English on the information provided in the statement of compatibility, exacerbating the disproportionate impact on those who, due to the personal attributes outlined above, require support to reach that level.

1.26      Finally, the indication in the explanatory memorandum that a person will not be required to undertake language testing to the 'competent English' standard if they are a passport holder of the United Kingdom, Republic of Ireland, Canada, the United States of America or New Zealand, raises the prospect of further impermissible discrimination between non-nationals in requests for citizenship. It is not apparent that passport holders from these countries can be automatically assumed to have 'competent English', particularly if that standard is aligned to the standard currently required to study at a university level.   

Committee comment

1.27             The right to equality and non-discrimination on the basis of language, national origin, social origin, and disability is engaged and limited by the measure. The above analysis raises questions as to whether the measure is a permissible limitation on those rights. 

1.28              The committee therefore seeks further advice from the Minister for Immigration and Border Protection as to:

• how the measure itself, rather than the goal of the measure, is effective to achieve (that is, rationally connected to) the objective of 'promoting social cohesion and encouraging new citizens to fully participate in Australian life'; and
• whether the limitation is a reasonable and proportionate measure for the achievement of that objective, including:
  • further information as to the intended definition and means of demonstrating competent English;
  • any further exemptions to the means chosen;
  • any relevant safeguards in relation to the measure to protect against the exclusion of persons from citizenship;
  • whether government funded English education will be provided to the proposed higher standard of competent English, and if so, how it is proposed to ensure that this education will be effective to ensure that permanent residents are not excluded from citizenship; and
  • the compatibility of exemptions for passport holders of certain countries from English language testing with the right to non-discrimination on the grounds of nationality in requests for citizenship.

Integration into the community requirement

1.29      Proposed section 21(2)(fa) requires the minister to be satisfied that a person 'has integrated into the Australian community' in order for that person to be eligible for citizenship by conferral. The matters which the minister may or must have regard to have been left to the minister to determine via legislative instrument. This is a new measure not previously introduced.

1.30      The explanatory memorandum provides examples of the type of matters the minister may  determine that he or she may have regard to in deciding whether a person has integrated into the Australian community:

a person's employment status, study being undertaken by the person, the person's involvement with community groups, the school participation of the person's children, or, adversely, the person's criminality or conduct that is inconsistent with the Australian values to which they committed throughout their application process.^[25]

1.31      In relation to 'conduct inconsistent with the Australian values to which they have committed', the bill proposes that applicants for citizenship by conferral be tested on Australian values via the citizenship test, and be required to sign an Australian Values Statement.  Proposed subsection 46(5) provides for the minister to determine, by legislative instrument, the content of an Australian Values Statement.

1.32      Additionally, as discussed below, proposed subsection 52(4) excludes merits review for decisions made personally by the minister in relation to citizenship by conferral, where the minister issues a notice under section 47 stating that he is satisfied that the decision was made in the public interest.

Compatibility of the measure with multiple rights

1.33      'Integration into the community' is a broad term that may raise different views as to its meaning. The intended consideration of 'conduct inconsistent with the Australian values to which they committed throughout their application process' is similarly imprecise, particularly where those values are yet to be determined by the minister in a legislative instrument.

1.34      Such broad discretion under proposed section 21(2)(fa) potentially raises serious concerns of incompatibility with the right to non-discrimination and equality. Without safeguards, it is possible that the minister could exercise this power in such a way as to have a disproportionate effect on people on the basis of disability, nationality, religion, race or sex. There is nothing on the face of the legislation which appears to limit his or her discretion. The examples of matters the minister may take into account cited in the explanatory memorandum are concerning. Many Australians may experience unemployment, or may not complete study, or may face difficulties with their children's school participation. It is not evident why it is necessary to exclude permanent residents from Australian citizenship on these grounds.

1.35      Depending on what matters are considered relevant to assessing 'integration into the Australian community' the measure may also engage and limit a range of other human rights. For example, the measure may also limit the right to freedom of expression, should it be construed to include statements considered by the minister to contravene Australian values.

1.36      As discussed further below, the bill also provides for the minister to exclude merits review of his decision to refuse a citizenship application, where he issues a notice that the decision is in the public interest. This raises the prospect that a person may be denied citizenship, and the important rights and protection that citizenship entails, without being able to effectively challenge the minister's determination or test the information that it is based upon. While judicial review would remain available, it is likely to be an inadequate safeguard due to the breadth of the power conferred on the minister by the terms of the proposed bill.

1.37      The statement of compatibility did not acknowledge that the 'integration into the community' requirement engaged human rights.

Committee comment

1.38             The preceding analysis indicates that the measure engages and may limit the right to equality and non-discrimination and the right to freedom of expression and raises questions about the compatibility of the measure with these rights.

1.39             The committee therefore seeks the advice of the minister as to:

• whether the measure is compatible with the right to equality and non-discrimination and other human rights;
• whether the basis on which a person will be considered to have integrated into the Australian community could be made clear and defined in the legislation;
• why it is not possible to allow merits review for all assessments made under proposed section 21(2)(fa).

Power to revoke Australian citizenship due to fraud or misrepresentation – removal of court finding

1.40             Currently, under the Citizenship Act the power to revoke citizenship on the grounds of fraud requires a conviction for a relevant offence (for example, the offence of false statements or representations), proven in court to the criminal standard of beyond reasonable doubt.[26]

1.41             Proposed new section 34AA would give the minister a discretionary power to revoke a person's Australian citizenship, up to 10 years after citizenship was first granted, where the minister is 'satisfied' that the person became an Australian citizen as a result of fraud or misrepresentation by themselves or a third party. There would be no requirement that the allegations of fraud or misrepresentation in relation to the citizenship application be proven in court or that a person be convicted.[27] The power to revoke citizenship is also available in relation to the citizenship of children.^[28] This is a reintroduced measure.

1.42             Presently, section 34 of the Citizenship Act further provides that the minister may also revoke the citizenship of a child whose responsible parent's citizenship has been revoked. That is, where a responsible parent's citizenship is revoked under proposed section 34AA there is a consequential power to revoke their child's citizenship under section 34 of the Citizenship Act. 

1.43             If a person's citizenship is revoked under the proposed measure then the person will be granted an ex-citizen visa.[29]   

Compatibility of the measure with the obligation to consider the best interests of the child

1.44             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.^[30]

1.45             The human rights assessment of the measure in the committee's previous report on the 2014 bill noted that removing the requirement of a conviction, and giving the minister a discretionary power to revoke a person's Australian citizenship, engages and limits the obligation to consider the best interests of the child. This is because the proposed discretionary power may be exercised regardless of whether or not it is in the child's best interests. The enjoyment of a range of rights is tied to citizenship under Australian law, such that the removal of citizenship may negatively impact upon what is in the child's best interests.

1.46             The statement of compatibility acknowledges that the measure engages the obligation to consider the best interests of the child. However, it argues that the measure is 'not inconsistent' with that obligation as the minister's discretion 'allows for the child's best interests to be considered as a primary consideration, although it is noted that the best interests of the child may be outweighed by other, competing primary considerations'.[31]  

1.47             Yet, as noted in the previous human rights assessment, while the minister may choose to consider the best interests of the child as a matter of discretion, the proposed power to revoke a child's citizenship will be able to be exercised regardless of whether or not the minister has, in fact, considered the best interests of the child. It is for this reason that the measure limits the obligation to consider the best interests of the child. Further, international human rights law generally requires that states have sufficient safeguards in place to prevent violations of human rights occurring. In this context, unconstrained discretion is generally insufficient for human rights purposes to ensure that powers are exercised in a manner that is compatible with human rights.^[32]

1.48             The statement of compatibility, while not explicitly acknowledging that the obligation to consider the best interests of the child is limited, provides some information as to whether a limitation could be considered to be permissible.[33]

1.49              The statement of compatibility argues that the objective of the measure is 'preventing abuse of the citizenship program'.[34] The previous analysis concluded that, based on further information provided by the minister in relation to the 2014 bill, this was likely to be considered a legitimate objective for the purposes of international human rights law. It would have been useful if this further information were included in the statement of compatibility accompanying the 2017 bill.

1.50             The statement of compatibility further argues that the measure is rationally connected to that objective on the basis that 'it prevents applicants from accessing citizenship through fraud or misrepresentation, including by possible exploitation of a child's application for citizenship, and provides a disincentive for people to provide fraudulent or misleading information on application'.[35] It is acknowledged that in broad terms the measure could act as a disincentive to fraud and misrepresentation in this way, and therefore may be regarded as rationally connected to the stated objective of the measure.

1.51             The statement of compatibility points to a number of matters as a basis for the measure being a proportionate limitation including that:

• there will be policy guidance in the form of a non-exclusive list of examples of types of evidence and material that might be needed for the minister to be 'satisfied' of fraud or misrepresentation;
• current legislation also allows the minister to revoke citizenship following a conviction for fraud or misrepresentation in relation to the citizenship application;
• there is an interpretative note at the end of proposed section 34AA referring to section 34 of the Citizenship Act which provides that the child of a person whose citizenship is revoked may also cease to be an Australian citizen. However, the minister must not revoke a child's Australian citizenship under section 34 if the child would be rendered stateless;
• a child whose citizenship is revoked will automatically be granted an ex-citizen visa (which does not have a travel facility and ceases on a person's departure from Australia).[36]

1.52             Based on these factors it is unclear that the power to remove citizenship on the basis that the minister is 'satisfied' that the person became an Australian citizen as a result of fraud or misrepresentation, by themselves or a third party, is a proportionate means of achieving the stated objective. As noted in the previous human rights analysis the following factors indicate that the measure is not a proportionate limitation:

1.53             First, as the measure explicitly removes the requirement that fraud or misrepresentation be proven in court to a criminal standard of beyond reasonable doubt, there is a greater risk that citizenship may be removed in circumstances where the fraud or misrepresentation did not in fact occur. While the statement of compatibility indicates that policy guidance will be provided in relation to the type of evidence that may be relevant for the minister to be 'satisfied' that fraud or misrepresentation has occurred, this is less stringent than the protection of statutory processes, and falls far short of the ordinary manner in which fraud or misrepresentation is determined to have occurred, that is, through adjudication by a court. Such guidance can be removed, revoked or amended at any time and is not required as a matter of law.

1.54             Second, in the absence of a definition of what constitutes 'fraud' or 'misrepresentation', the minister's power to revoke citizenship on the basis of, for example, minor or technical misrepresentations may not be proportionate to the stated objective of the measure.

1.55             Third, the current law, which allows the minister to revoke citizenship following a conviction, raises questions about whether there are less rights restrictive means of achieving the stated objective of the measure. In this respect, the statement of compatibility does not fully explain why the current law is insufficient for the stated objective of preventing fraud and misrepresentation.

1.56             Fourth, the measure would allow the removal of a person's citizenship (including a child's citizenship) where the person concerned is not alleged to have engaged in or had knowledge of any fraud or misrepresentation themselves. This would mean that a child's citizenship could be revoked for conduct alleged to have been committed (but not necessarily proven) by a third party in relation to the child's application, including conduct of which the child had no knowledge, or was unable to prevent. Given the extremely serious and lifelong consequences for a child in such circumstances, the breadth of the power may be disproportionate to the aims sought.

1.57             Fifth, the protection against a child being rendered stateless appears to relate to consequential revocation under section 34 of the Citizenship Act in circumstances where the child's parent's citizenship has been revoked. While this is a relevant safeguard, it is unclear that it applies in circumstances where a child's citizenship is revoked directly under proposed section 34AA. If this is the case, it means that there may still be a risk that a child is rendered stateless.   

1.58             Sixth, while the grant of another visa is a relevant safeguard, such ex-citizen visas do not have a travel facility attached and may be subject to cancellation. Accordingly, the measure does not appear to be a proportionate limitation on the obligation to consider the best interests of the child as a primary consideration.

Committee comment

1.59             The committee notes that this measure is reintroduced.

1.60             The preceding analysis indicates that the measure engages and limits the obligation to consider the best interests of the child as a primary consideration. 

1.61             Noting the concerns raised in the previous human rights assessment of the measure and the above analysis, the committee draws the human rights implications of the bill to the attention of parliament.

Compatibility of the measure with the child's right to nationality

1.62      Every child has the right to acquire a nationality under article 7 of the CRC and article 24(3) of the ICCPR.^[37] Accordingly, Australia is required to adopt measures, both internally and in cooperation with other countries, to ensure that every child has a nationality when born. Article 8 of the CRC provides that children have the right to preserve their identity, including their nationality, without unlawful interference. The terms 'nationality' and 'citizenship' are interchangeable as a matter of international law.

1.63             The previous human rights analysis noted that Australia's obligations under article 8 of the CRC should be read in accordance with Australia's obligations under article 3 of the CRC to consider the best interests of the child and article 8(1) of the Convention on the Reduction of Statelessness, which provides that a state shall not deprive a person of their nationality if such deprivation would render the person stateless.^[38] 

1.64             As noted above, the proposed power would allow for the removal of a child's Australian citizenship. The previous human rights analysis stated that, by removing the requirement of conviction, and giving the minister a discretionary power to revoke a person's Australian citizenship, the proposed measure engages and may limit a child’s right to nationality.

1.65             While the statement of compatibility for the 2014 bill acknowledged that this measure engaged the right to nationality, the statement of compatibility for the 2017 bill does not. The statement of compatibility for the 2017 bill therefore does not provide any assessment of whether the measure constitutes a permissible limitation on the right to nationality. The statement of compatibility for the 2014 bill argued that the measure engaged the right to nationality but that any limitation was justifiable.^[39] It further acknowledged that the measure could result in statelessness for some children.^[40]

1.66             As set out above, it is acknowledged that the measure pursues a legitimate objective and is rationally connected to that objective. However, as set out in the previous human rights analysis of the measure, serious concerns arise as to the proportionality of the measure, noting in particular the matters above at [1.53] -[1.58]. Of particular concern from the perspective of a child's right to nationality is that the measure could result in statelessness for some children. Under international human rights law ministerial discretion, in and of itself, does not constitute a sufficient safeguard against the risk that the power may be exercised in a manner which would not be proportionate to the stated objective of the measure. The same is true in relation to a requirement that a power be exercised in the public interest.

Committee comment

1.67             The committee notes that this measure is reintroduced.

1.68             The preceding analysis indicates that the measure engages and limits a child's right to nationality and could result in statelessness for some children. 

1.69             Noting the concerns raised in the previous human rights assessment of the measure and the above analysis, the committee draws the human rights implications of the bill to the attention of parliament.

Compatibility of the measure with the right of the child to be heard in judicial and administrative proceedings

1.70             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.

1.71             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.

1.72             The committee's previous report considered that the proposed discretionary power to revoke Australian citizenship without a court finding may limit the right of the child to be heard. The statement of compatibility does not address this issue and provides no information about whether a child would be afforded the opportunity to be heard in relation to new administrative processes. Further, the statement of compatibility does not address the fact that currently a court process leading to determination as to 'fraud' or 'misrepresentation' may afford particular children the ability to be heard, and this will be lost in the proposed amendments. Neither the statement of compatibility to the 2014 bill nor the 2017 bill, nor the minister's response in relation to the 2017 bill provide any information as to whether the limitation is permissible. Accordingly, based on the information available it is not possible to conclude that the measure is compatible with the right of the child to be heard.

Committee comment

1.73             The committee notes that this measure is reintroduced.

1.74             The preceding analysis indicates that the measure engages and may limit a child's right to be heard. 

1.75             Noting the concerns raised in the previous human rights assessment of the measure and the above analysis, the committee draws the human rights implications of the bill to the attention of parliament.

Compatibility of the measure with the right to a fair trial and fair hearing

1.76             The right to a fair trial and fair hearing is protected by article 14 of the ICCPR. The right applies to both criminal and civil proceedings, and to cases before both courts and tribunals. There are also specific further guarantees in the determination of a criminal charge under articles 14 and 15 of the ICCPR such as the right to be presumed innocent.

1.77             The Citizenship Act presently allows for the power to revoke citizenship on the grounds of fraud. This requires first that there has been a conviction for a relevant offence (for example, the offence of false statements or representations), proven in court to the criminal standard of beyond reasonable doubt.

1.78             The effect of the measure is to replace current court processes and determinations of guilt beyond a reasonable doubt solely with the views of the minister as to whether 'fraud' or 'misrepresentation' has occurred. Accordingly, the analysis in the committee's previous report considered that removing the requirement of a conviction, and giving the minister a discretionary power to revoke a person's Australian citizenship, engages and may limit the right to a fair trial and fair hearing. The statement of compatibility does not acknowledge that these rights are engaged and therefore does not provide an assessment as to whether the measure is compatible with these rights.

1.79             The previous human rights analysis stated that revoking citizenship via administrative rather than criminal processes in this way could constitute punitive action against the individual; and may be considered to be a form of banishment,[41] which has historically been regarded as one of the most serious forms of punishment.[42] As such the removal of an Australian's citizenship in circumstances which may ultimately lead to banishment may be considered to be a form of punishment under international human rights law.[43]

1.80             It is noted that revoking citizenship would be an administrative process and would not be classified as 'criminal' under Australian law. A person charged with a criminal offence would continue to enjoy the rights associated with a criminal trial in Australia.

1.81             However, as set out in the committee's Guidance Note 2, even if a penalty is classified as civil or administrative under domestic law it may nevertheless be considered 'criminal' under international human rights law. A provision that is considered 'criminal' under international human rights law will engage criminal process rights under articles 14 and 15 ICCPR such as the right to be presumed innocent, the right not to be tried and punished twice (the prohibition against double jeopardy) and the right not to incriminate oneself.[44] The right to be presumed innocent requires, for example, that the case against a person be demonstrated on the criminal standard of proof; that is, be proven beyond reasonable doubt.

1.82             The criteria for determining whether a penalty may be considered 'criminal' under human rights law in circumstances where it is not classified as criminal under domestic law relates to the nature of the penalty and the severity of the penalty.

1.83             In relation to the nature of the penalty, the penalty is likely to be considered criminal for the purposes of human rights law if (a) the purpose of the penalty is to punish or deter; and (b) the penalty applies to the public in general (rather than being restricted to people in a specific regulatory or disciplinary context).

1.84             In this respect, the purpose of the measure is 'preventing abuse of the citizenship program' and so appears designed to act as a deterrent. Further, the measure could apply to a broad number of naturalised citizens so that it may not be limited to a particular regulatory context.

1.85             These factors mean that the measure may be more likely to be considered 'criminal' for the purposes of international human rights law.

1.86             However, even if both these aspects of the test were not fully satisfied, a penalty may be considered 'criminal' depending upon its severity. The previous human rights analysis stated that the serious consequences that ultimately may flow from the revocation of a person's citizenship also mean that the penalty is more likely to be considered 'criminal' for the purpose of human rights law. Accordingly, the full range of criminal process rights under articles 14 and 15 of the ICCPR apply. 

1.87             As noted in the previous human rights analysis, given that the proposed provision removes the requirement that there be prior determination of guilt to the criminal standard of beyond reasonable doubt, the measure appears to limit the right to a fair trial. No justification has been provided in relation to this limitation.

1.88             The right to a fair hearing applies regardless of whether the revocation of citizenship may be considered criminal. In particular, as noted in the previous human rights assessment of the measure, internal administrative processes are not equivalent to external independent and impartial review and, accordingly, are not sufficient for the purposes of international human rights law. Also, other provisions of this bill remove the availability of merits review in relation to personal decisions of the minister stated to be in the public interest.[45] This would mean that merits review may not be available in relation to a decision to revoke citizenship where it is made personally by the minister.

1.89             Finally, it is acknowledged that judicial review would still be available in relation to such decisions. However, judicial review in Australia is governed by the Administrative Decisions (Judicial Review) Act 1977 and the common law and represents a considerably limited form of review in that it allows a court to consider only whether the decision was lawful (that is, for example, 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.

Committee comment

1.90             The committee notes that this measure is reintroduced.

1.91             The preceding analysis indicates that the measure engages and limits the right to a fair trial and the right to a fair hearing.

1.92             Noting the concerns raised in the previous human rights assessment of the measure and the above analysis, the committee draws the human rights implications of the bill to the attention of parliament.

Compatibility of the measure with the right to freedom of movement

1.93             The right to freedom of movement is protected under article 12 of the ICCPR and includes a right to leave Australia as well as the right to enter, remain, or return to one's 'own country'.[46]

1.94             If a person's citizenship is revoked under the proposed measure then the person will be granted an ex-citizen visa.[47] However, an ex-citizen visa ceases on a person's departure from Australia.[48] Accordingly, the measure may limit the right to freedom of movement.

1.95             As noted in the previous human rights analysis, when a person who has an ex-citizen visa leaves Australia they may not be able to return, even in circumstances where Australia is their 'own country', a concept which encompasses not only a country where a person has citizenship but also one where a person has strong ties.[49] While a person on an ex-citizen visa will be able to apply for other visas with a travel facility, the grant of such a visa is by no means assured. The question of whether a person has been arbitrarily deprived of their right to enter one's own country under article 12 of the ICCPR is much broader than whether domestic laws and processes have been followed. In Nystrom v Australia the UN Human Rights Committee noted the following in relation to 'arbitrariness' in article 12(4):

even interference provided for by law should be in accordance with the provisions, the aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country.[50]

1.96             The right to freedom of movement and the right to return to one's own country were not addressed in the statement of compatibility. In its previous consideration of the measure the committee sought a response from the minister about this issue. None of this information has been included in the statement of compatibility for the 2017 bill.

Committee comment

1.97             The committee notes that this measure is reintroduced.

1.98             The preceding analysis indicates that the measure engages and limits the right to enter, remain or return to an individual's 'own country'.

1.99             Noting the concerns raised in the previous human rights assessment of the measure and the above analysis, the committee draws the human rights implications of the bill to the attention of parliament.

Extending the good character requirement to include applicants for Australian citizenship under 18 years of age

1.100         Currently, the good character requirements under the Citizenship Act apply only to applicants aged 18 and over. The concept of 'good character' is undefined in the Citizenship Act but, as a matter of policy, is understood to cover the 'enduring moral qualities of a person' and 'whether they are likely to uphold and obey the laws of Australia, and other commitments they make through the Australian Citizenship Pledge'.^[51]

1.101         The bill would extend these 'good character' requirements to applicants for Australian citizenship aged under 18 years of age.

Compatibility of the measure with the obligation to consider the best interests of the child

1.102         Under the CRC, Australia is required to ensure that in all actions concerning children, the best interests of the child is a primary consideration.^[52] In its previous analysis, the committee's report noted that the extension of the 'good character' test to child applicants would add an additional requirement for Australian citizenship which may not be compatible with the best interests of the child. This is because such a requirement may operate to deny child applicants Australian citizenship.

1.103         The statement of compatibility acknowledges that the measure engages the obligation to consider the best interests of the child but argues that 'while it may be in the best interests of the child to obtain citizenship the best interests of the child must be weighed against other competing interests.'[53] It is unclear whether or not this is an acknowledgement that the measure limits the obligation to consider the best interests of the child.

1.104         Limitations on human rights may be permissible where they pursue a legitimate objective, are rationally connected to that objective and are a proportionate means of achieving that objective. It is noted that the statement of compatibility does not expressly apply this criteria, however, it appears to identify an objective of the measure as 'preserving the integrity of the citizenship program'.^[54] It argues that the measure is needed for consistency with the 'good character' requirements under the Migration Act. However, in the absence of any detailed explanation, it was not apparent whether the measure, in seeking such consistency, may be regarded as addressing a pressing or substantial concern for the purposes of international human rights law.

1.105         In relation to the proportionality of the measure and the availability of safeguards, the committee's previous report raised a range of concerns.

1.106         As currently drafted, an assessment of the human rights compatibility of the measure must take into account the possibility that children under 16 (including very young children) may be subject to the 'good character' test.

1.107         The statement of compatibility notes that there is a policy intention that, in practice, the Australian Citizenship Instructions will instruct decision makers to consider Convention on the Reduction of Statelessness and the best interests of the child 'amongst other things'.^[55] However, there are no such safeguards in the legislative measure. As noted above, discretionary and administrative safeguards alone are likely to be insufficient for the purposes of ensuring that limitations on human rights are sufficiently circumscribed and are proportionate. 

1.108         Further, the previous human rights analysis of the measure noted that both international human rights law and Australian criminal law recognise that children have different levels of emotional, mental and intellectual maturity than adults, and so are less culpable for their actions.^[56]

1.109         In this context, the denial of Australian citizenship to a child on the basis of such conduct may not be in accordance with accepted understandings of the capacity and culpability of children under international human rights law. Further, international human rights law recognises that a child accused or convicted of a crime should be treated in a manner which takes into account the desirability of promoting his or her reintegration into society.

1.110         The denial of a child's citizenship on the basis of a 'good character' test, and its ongoing (and possibly lifelong) effect, may impose a disproportionately adverse effect on that child's best interests. As such, there are serious concerns over the proportionality of this measure in pursuing its stated objective.

Committee comment

1.111        The committee notes that this measure is reintroduced.

1.112        The preceding analysis indicates that the measure engages and limits the obligation to consider the best interests of the child.

1.113        Noting the concerns raised in the previous human rights assessment of the measure and the above analysis, the committee draws the human rights implications of the bill to the attention of parliament.

Citizenship to a child found abandoned in Australia

1.114         Section 14 of the Citizenship Act currently provides that a person is an Australian citizen if they are found abandoned in Australia as a child unless the contrary is proved.^[57]

1.115         Proposed section 12(8) would replace current section 14 of the Citizenship Act to provide that a person found abandoned in Australia as a child is taken to have been born in Australia and to be an Australian citizen by birth, unless it is proved that the person was outside Australia before they were found abandoned or they are not an Australian citizen by birth.^[58] This measure is reintroduced.

Compatibility of the measure with the obligation to consider the best interests of the child and a child's right to nationality

1.116         As noted above under the CRC, Australia is required to ensure that in all actions concerning children the best interests of the child is a primary consideration as well as assuring the right of the child to acquire nationality.^[59]

1.117         The statement of compatibility acknowledges that the measure engages the obligation to consider the best interests of the child.^[60] The previous human rights analysis noted that the proposed provision creates additional qualification requirements for Australian citizenship, which may not be in the best interests of the child. Accordingly, the measure may limit the obligation to consider the best interests of the child and the rights of the child to nationality.

1.118         The statement of compatibility states that the objective of replacing current section 14 of the Citizenship Act is to 'clarify the meaning of the abandoned child provision.'^[61] However, it does not provide supporting reasons to demonstrate that this objective addresses a pressing or substantial concern.

1.119         Additionally, a limitation must be rationally connected to, and a proportionate way to achieve, its legitimate objective in order to be permissible in international human rights law.

1.120         In this regard, it is unclear whether there is a rational connection between the stated objective of the measure and the terms of the measure itself. This is because, while the stated objective of the measure is to 'clarify' a provision (with the implication that there is no substantive change to the provision), the proposed measure in fact introduces a new factor that can disqualify an abandoned child from being an Australian citizen, which is that the child was 'outside Australia at any time before [they were] found abandoned in Australia as a child'.[62] Accordingly, as noted in the previous human rights analysis, insufficient information has been provided to justify the limitation for the purpose of international human rights law.

Committee comment

1.121        The committee notes that this measure is reintroduced.

1.122        The preceding analysis indicates that the measure engages and limits the obligation to consider the best interests of the child and the right of the child to a nationality.

1.123        Noting the concerns raised in the previous human rights assessment of the measure and the above analysis, the committee draws the human rights implications of the bill to the attention of parliament.

Limiting automatic citizenship at 10 years of age

1.124         Currently section 12 of the Citizenship Act provides that a child born in Australia will automatically be an Australian citizen if either their parent is a citizen or permanent resident when they were born or the child is 'ordinarily resident' in Australia for their first 10 years of life.^[63] There is a limited exception in cases where the child's parent is an enemy alien.

1.125         The bill would amend section 12 to deny automatic citizenship for a child born in Australia in any of the following circumstances arising at any time during the child’s first 10 years of life:

• one or both of the child's parents were foreign diplomats;
• the child did not hold a valid visa (that is, they were present in Australia as an unlawful non-citizen);
• the child travelled outside Australia and did not hold a visa permitting them to travel to, enter and remain in Australia (this will not apply to New Zealand citizens); or
• one or both of the child's parents came to Australia before the child was born, did not hold a substantive visa at the time of the child's birth and was an unlawful non-citizen at any time prior to the child's birth.^[64]

1.126         As the measure amends the circumstances in which Australian citizenship may be granted to children ordinarily resident in Australia for the first 10 years of their life, the measure engages the obligation to consider the best interests of the child.

Compatibility of the measure with the obligation to consider the best interests of the child

1.127         As noted above under the CRC, Australia is required to ensure that in all actions concerning children the best interests of the child is a primary consideration.^[65]

1.128         While acknowledging that the child's right to nationality is engaged, the statement of compatibility does not acknowledge that the measure also engages the obligation to consider the best interests of the child.^[66] By preventing certain children born in Australia from qualifying for Australian citizenship the measure engages and may limit this obligation.

1.129         In relation to the objective of the measure, the statement of compatibility states:

this amendment aims to encourage lawful migration and acquisition of Australian citizenship, and to discourage abuse of the ten year rule by unlawful non-citizens.[67]

1.130         However, no evidence is provided as to how the measure addresses a substantial and pressing concern—for example, by providing evidence of any abuse of the 10-year rule.

1.131         Further, no evidence is provided as to how the measure is rationally connected to this objective.

1.132         As noted in the previous human rights analysis, the measure would apply to children born in Australia who have lived their whole life in Australia and have not reached their tenth birthday. It is unclear how denying these children an automatic right to citizenship is rationally connected to an objective of encouraging parents to regularise their immigration status before having children in Australia.

1.133         Limited information is provided in the statement of compatibility as to whether the measure is proportionate.[68] It is noted in this respect that further information was previously provided in relation to the proportionality of the measure in response to the committee's inquires, however, this was insufficient to satisfy the test of proportionality as a matter of international human rights law.

Committee comment

1.134        The committee notes that this measure is reintroduced.

1.135        The preceding analysis indicates that the measure engages and limits the obligation to consider the best interests of the child.

1.136        Noting the concerns raised in the previous human rights assessment of the measure and the above analysis, the committee draws the human rights implications of the bill to the attention of parliament.

Personal ministerial decisions not subject to merits review

1.137         Currently, a decision refusing to grant or approve citizenship, or revoke citizenship, under the Citizenship Act is subject to full merits review by the Administrative Appeals Tribunal (AAT). The AAT provides an independent review process, considering afresh the facts, law and policy relating to certain administrative decisions.

1.138         The bill proposes removing the power of the AAT to review a decision made by the minister personally under the Citizenship Act, if the minister has stated in a notice that the decision was made in the public interest.^[69] No definition of what might constitute the public interest is included in the bill.^[70] This measure is reintroduced.

Compatibility of the measure with the right to a fair hearing

1.139         The right to a fair trial and fair hearing is protected by article 14 of the ICCPR. The right applies to both criminal and civil proceedings, including where rights and obligations are determined (suit at law). The revocation of citizenship involves the removal of an existing right that would create a suit at law for the purposes of article 14 of the ICCPR; and a decision to cancel citizenship may create a suit at law having regard to the individual facts of each case.

1.140         While the bill would preserve judicial review under section 75(v) of the Constitution and section 39B of the Judiciary Act 1903, judicial review cannot examine the merits of the decision and is limited to particular grounds such as an identifiable error of law. Judicial review is therefore not equivalent to, or a complete substitute for, access to merits review by the AAT, and so does not fully mitigate the possible limitation on the right to a fair hearing.

1.141      However, this issue was not identified in the statement of compatibility and so no assessment is provided regarding the compatibility of the measure with this right. The committee previously sought the further advice of the minister about the human rights compatibility of this measure with the right to a fair hearing.

1.142           The statement of compatibility provides some explanation of the measure ostensibly in relation to article 16 of the ICCPR and recognition as a person before the law. However, it does not explain the objective of the measure and how it addresses a substantial and pressing concern or how the measure is rationally connected and proportionate to that objective.

Committee comment

1.143        The committee notes that this measure is reintroduced.

1.144        The preceding analysis indicates that, in relation to the cancellation or revocation of a person's citizenship, removal of a merits review process engages and limits the right to a fair hearing.

1.145        Noting the concerns raised in the previous human rights assessment of the measure and the above analysis, the committee draws the human rights implications of the bill to the attention of parliament.

Ministerial power to set aside decisions of the AAT if in the public interest

1.146         Currently under the Citizenship Act, a decision refusing or cancelling approval for a person to become an Australian citizen, because the person was not of good character or because of doubts as to the person's identity, is subject to review by the AAT. The AAT is empowered to make a decision setting aside that refusal or cancellation.

1.147         The bill proposes empowering the minister to set aside such a decision made by the AAT if the minister's delegate had originally decided that an applicant for citizenship was not of good character, or was not satisfied as to the person's identity, and the minister is satisfied it is in the public interest to set aside the AAT's decision.[71] This measure is reintroduced.

Compatibility of the measure with the right to a fair hearing

1.148         As noted above, the right to a fair trial and fair hearing is protected by article 14 of the ICCPR. The right applies to both criminal and civil proceedings, including where rights and obligations are determined (suit at law). Procedures for determining citizenship create a suit at law for the purposes of article 14 of the ICCPR.

1.149         The statement of compatibility noted that the measure engages the right to a fair hearing, but concluded that the measure does not 'breach' the right to a fair hearing as:

• affected applicants will still be entitled to seek judicial review; and
• the 'AAT has stated that the Minister's power to set aside AAT decisions does not compromise its independence as a tribunal'.^[72]

1.150         While the continued constitutional availability of judicial review is acknowledged, it is not equivalent to, or an effective substitute for, merits review. Judicial review can only examine the lawfulness of a decision rather than the merits of a decision. For example, there will be no reassessment of the substantive question of whether the applicant is of 'good character' in proceedings for judicial review.

1.151         Further, it is unclear, from the information provided, how the minister's proposed power to substitute decisions of the AAT with his own decision does not significantly interfere with the independence and effectiveness of the current system.

1.152         As the measure allows the minister to substitute and therefore overrule the decision of the AAT, the committee's previous report considered that the measure limits the right to a fair hearing, by effectively removing a person's right to a hearing before an independent and impartial tribunal. Minimal justification for the measure was provided in the statement of compatibility.

Committee comment

1.153        The committee notes that this measure is reintroduced.

1.154        The preceding analysis indicates that the measure engages and limits the right to a fair hearing.

1.155        Noting the concerns raised in the previous human rights assessment of the measure and the above analysis, the committee draws the human rights implications of the bill to the attention of parliament.

Extension of bars to citizenship where a person is subject to a court order

1.156         Currently, section 24(6) of the Citizenship Act requires that a person not be approved for citizenship by conferral when a prescribed period of time has not passed since they were in prison for certain offences, or the person is subject to proceedings in relation to certain offences.

1.157         The proposed amendments would extend this bar on approval for citizenship to cases where a person is subject to home detention or a court order in connection with proceedings for a criminal offence, or that requires the person to participate in a residential scheme (including a residential drug rehabilitation scheme or a residential program for those experiencing mental illness).^[73] This measure is reintroduced.

Right to equality and non-discrimination

1.158         As noted above, the right to equality and non-discrimination is protected by articles 2, 16 and 26 of the ICCPR and article 5 of the CRPD.

1.159         'Discrimination' under the ICCPR encompasses a distinction based on a personal attribute (for example, race, sex or on the basis of disability)[74] which has a discriminatory intent (direct discrimination) and measures which have a discriminatory effect on the enjoyment of rights (indirect discrimination).[75]

1.160         Differential treatment will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is effective to achieve that legitimate objective and is a proportionate means of achieving that objective.[76]

1.161         The statement of compatibility identifies that the right to equality and non-discrimination is engaged by the measure because the proposed bar on approval for citizenship 'extends to people who have a mental illness and who have been subject to an order of the court requiring them to participate in a residential program for the mentally ill'.^[77]

1.162         It states that the measure pursues the legitimate objective of 'strengthening and achieving greater consistency across the citizenship programme, in the interests of the Australian community and national security'.^[78] It argues that the measure is rationally connected to this objective as '[b]eing of good character is a fundamental tenet of the citizenship programme'.^[79]

1.163         The statement of compatibility argues that the measure is proportionate to the stated objective because 'it reflects the criminal law, which imposes consequences for committing a criminal offence on all persons, including those with a mental illness'.^[80]

1.164         However, there is no clear relationship between this explanation of the measure and the terms of the measure itself which concerns the citizenship of a person who would otherwise be entitled to citizenship by conferral. This indicates that the measure may not be rationally connected to or a proportionate means of achieving its objective.

1.165         As noted in the committee's previous report, while the explanation of the measure refers to 'consequences for committing a criminal offence',^[81] the measure is considerably broader and would affect people who have not committed a criminal offence but are merely involved in 'proceedings for an offence'. This would include people who have not been convicted and who are on bail or on remand, or who have been determined to be unfit to plead or have been found not guilty of an offence by reason of mental illness. While noting that the bar on gaining citizenship is not necessarily permanent (that is, unless the individual is permanently confined in a psychiatric facility), it would still operate to bar a person who is subject to a court order from citizenship whether or not they had been convicted of a crime at least on a temporary basis. It would also leave the relevant person vulnerable to visa cancellation on character grounds. Further, the statement of compatibility does not show how denying citizenship to individuals who are confined on the basis of mental illness upholds the integrity of the citizenship program.

Committee comment

1.166        The committee notes that this measure is reintroduced.

1.167        The preceding analysis indicates that the measure may not be compatible with the right to equality and non-discrimination on the basis of disability.

1.168        Noting the concerns raised in the previous human rights assessment of the measure and the above analysis, the committee draws the human rights implications of the bill to the attention of parliament.

Migration Amendment (Validation of Decisions) Bill 2017

Purpose	Seeks to ensure that visa cancellations or refusals based on information gained from gazetted law enforcement officers under section 503A of the Migration Act 1958 remain valid at law
Portfolio	Immigration and Border Protection
Introduced	House of Representatives, 21 June 2017
Rights	Prohibition on expulsion without due process; liberty; protection of the family; non-refoulement; freedom of movement; and effective remedy (see Appendix 2)
Status	Seeking additional information

Validation of decisions  

1.169         Section 503A of the Migration Act 1958 (the Migration Act) provides that information communicated to an authorised migration officer by a gazetted agency (such as law enforcement or intelligence agencies or a war crimes tribunal) for the purposes of making a decision to refuse or cancel a visa on character grounds, is protected from disclosure, not only to the person whose visa is refused or cancelled, but also to any court or tribunal reviewing that decision, and to parliament or a parliamentary committee. The Minister has the non-compellable discretion to allow the disclosure after consulting the gazetted agency. Section 503A is currently being challenged before the High Court of Australia in Graham and Te Puia.[82]

1.170         The Migration Amendment (Validation of Decisions) Bill 2017 (the bill) seeks to ensure that should section 503A be found to be invalid, the minister or delegate's decisions regarding visa refusal or cancellation will remain valid, notwithstanding their reliance upon or regard to confidential information purportedly protected by section 503A.

Compatibility of the measure with the prohibition on expulsion without due process

1.171         The right not to be expelled from a country without due process is protected by article 13 of the International Covenant on Civil and Political Rights (ICCPR). It provides:

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

1.172         The article incorporates notions of due process also reflected in article 14 of the ICCPR,[83] which protects the right to a fair hearing.[84] To the extent that domestic law gives authority to courts or tribunals to decide on expulsion or deportation decisions, the guarantees of fairness and equality of arms apply.[85] These demand that each side be given the opportunity to contest all the arguments and evidence adduced by the other party.^[86] The Human Rights Committee has stated that the article requires that 'an alien [...] be given full facilities for pursuing his remedy against expulsion so that this right will in all circumstances of his case be an effective one'.[87]

1.173         Under section 503A, both the person whose visa is refused or cancelled and any authority outside the department reviewing the decision are unable to require production of particular information on which the decision is based. The person is therefore prevented from effectively contesting or correcting potentially essential information and the reviewing authority is unable to scrutinise whether the decision was correct or reasonably made, thereby engaging and limiting the right of an alien to due process prior to expulsion.

1.174         Article 13 does contain an exception to the requirement to afford due process where 'compelling reasons of national security' exist. However, section 503A is broader than this exception. It does not require the minister to be satisfied that compelling national security reasons exist, but merely that the information relied upon is communicated to an authorised migration officer by a gazetted agency on the condition that it be treated as confidential. Indeed, there is no requirement to assess whether confidentiality is necessary against any standards. This raises serious questions as to whether section 503A is compatible with article 13.

1.175         The bill seeks to validate decisions to cancel or refuse a visa which had regard to information protected under section 503A, in the event that the section is struck down on the basis of a constitutional challenge currently before the High Court of Australia.[88] In seeking to validate decisions which relied upon section 503A information in the event that the provision is determined to be unconstitutional and thereby invalid, it further limits the right to due process prior to expulsion under article 13.

1.176         The right to due process prior to expulsion was not addressed in the statement of compatibility, and accordingly no assessment was provided as to whether the limitation was permissible. In the context of other rights, considered below, the statement of compatibility stated that the measure is a reasonable response to a legitimate objective. As discussed below at 1.192 to 1.193, whilst the safety of the community and the integrity of the migration system are capable of constituting legitimate objectives under international human rights law, there are serious questions as to whether the measure is effective to achieve, and proportionate to, those objectives.

Committee comment

1.177        The preceding analysis raises questions as to the compatibility of the measure with the right to due process prior to expulsion under article 13 of the ICCPR.

1.178        The committee therefore requests the advice of the minister as to the compatibility of the measure with the right to due process prior to expulsion under article 13 of the ICCPR, particularly regarding the inability of affected individuals to contest or correct information on which the refusal or cancellation is based, and the absence of any standard against which the need for confidentiality of section 503A information is independently assessed or reviewed.  

Compatibility of the measure with the right to liberty

1.179         The right to liberty, contained in Article 9 of the ICCPR, prohibits the arbitrary and unlawful deprivation of liberty. This prohibition against arbitrary detention requires that the state should not deprive a person of their liberty except in accordance with law, but the concept of arbitrariness also extends beyond the apparent 'lawfulness' of detention to include elements of injustice, lack of predictability and lack of due process.[89] The right to liberty applies to all forms of deprivations of liberty, including immigration detention, although what is considered as arbitrary may vary depending on context.

1.180         Under the Migration Act, the cancellation of the visa of a non-citizen living in Australia results in that person being classified as an unlawful non-citizen, and subject to mandatory immigration detention prior to removal or deportation.[90] By validating decisions to cancel a visa which may otherwise be invalid if section 503A is found invalid, the measure accordingly engages and limits the right to liberty.

1.181         However, the statement of compatibility argues that the bill does not limit the right to liberty as it merely:

introduces a legislative amendment that preserves the grounds upon which certain non-citizen's visas were cancelled, or their applications refused, the result of which may be subsequent detention, supporting existing laws that are well-established, generally applicable and predictable.[91]

1.182         The concept of 'non-arbitrariness' under international law is not limited to general applicability and predictability, although it includes both those concepts. The detention of a non-citizen on cancellation of their visa will generally not constitute arbitrary detention, as it is permissible to detain a person for a reasonable time pending their deportation. Detention may however become arbitrary in the context of mandatory detention, where individual circumstances are not taken into account, and a person may be subject to a significant length of detention without knowing or being able to contest the information on which their detention is based before an independent body.[92]

1.183         In relation to section 503A, arbitrariness may arise because a person is prevented from accessing and addressing evidence upon which the visa cancellation, and therefore detention pending removal, is based. In seeking to broadly validate decisions which had regard to section 503A information, the bill would perpetuate the existing serious concerns in relation to section 503A, including the engagement and limitation of the right to liberty.

1.184         In relation to the risk of indefinite detention, the statement of compatibility states that '[t]he determining factor [in whether detention is arbitrary] is not the length of detention, but whether the grounds for the detention are justifiable'.[93] However, as stated by the United Nations Human Rights Committee (UNHRC) '[t]he inability of a state to carry out the expulsion of an individual because of statelessness or other obstacles does not justify indefinite detention'.[94] The risk of arbitrariness in this situation is exacerbated where a person is deprived of legal safeguards to effectively challenge the basis of their detention, such as access to information relied upon in refusing or cancelling a visa.[95]

1.185         A measure may permissibly limit the right to liberty where it supports a legitimate objective, is rationally connected to that objective, and is a proportionate way to achieve that objective.

1.186         The statement of compatibility identifies the objectives of the measure as being:

...[to ensure] the safety of the Australian community and integrity of the migration programme — as it seeks to uphold certain character refusal or cancellation decisions in the event of a High Court ruling on the validity of section 503A. These non-citizens pose an unacceptable risk to the Australian community if their cancellation decisions are overturned and they are required to be released from immigration detention into the community.[96]

1.187         The statement of compatibility indicates that the measures are reasonable as:

This Bill will not prevent the affected non-citizens from individually challenging their decisions in a court. The detention of a non-citizen under these circumstances is considered neither unlawful nor arbitrary under international law.[97]

1.188         However, it is unclear upon what basis an affected non-citizen would be able to challenge their visa cancellation or refusal in a court. Indeed, the intent of the measure appears to be to preclude affected persons from successfully challenging visa cancellations or refusals made in reliance on information that was not disclosed pursuant to section 503A, in the event that section 503A is held to be invalid.

1.189         With particular reference to the risk that a person may be arbitrarily detained, the statement of compatibility states:

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.[98]

1.190         As considered in a previous human rights assessment of visa cancellation powers,[99] ensuring the safety of Australians and the integrity of the immigration system are capable of constituting legitimate objectives for the purposes of international human rights law.

1.191         However, the measure seeks to validate administrative decisions made with regard to information which was not disclosed to the affected person, and could not be effectively tested in a court for reliability, relevance or accuracy. The effectiveness of the measure to ensure the safety of Australians and the integrity of the immigration system is therefore questionable.

1.192         Moreover, in order for a measure to be a proportionate limitation on a right, it must be the least rights restrictive means of achieving the legitimate objective of the measure. It is difficult to see how validating decisions to cancel visas based on information that is kept from the person affected, broadly as a class, is the least rights restrictive means of achieving the stated objectives. If the initial cancellation is put into question as a result of a High Court decision invalidating section 503A, it would appear to be possible for the minister to make a renewed decision to refuse or cancel the visa of an affected person on an individual basis. Insofar as information is sought to be kept from the public or the affected person for reasons of national security, the statement of compatibility does not address alternative means that may be available that would protect such information only to the extent required for national security or alternative processes that would still allow such information to be tested in some way before a court or tribunal. More broadly, it is not clear from the statement of compatibility why existing criminal justice or national security mechanisms are insufficient to counter any risk a person may pose should the cancellation of their visa be invalid as a consequence of such a High Court decision.

1.193         No detail is provided regarding the functioning or effectiveness of internal review processes, or the oversight processes referred to in the statement of compatibility. While the administrative and discretionary processes identified may in some circumstances mitigate the risk of arbitrary or indefinite detention, they are unlikely to constitute sufficient safeguards under international law, due to their discretionary nature.[100]

Committee comment

1.194        The preceding analysis raises questions as to the compatibility of the measure with the right to liberty.

1.195        The committee therefore requests the advice of the Minister for Immigration and Border Protection as to the compatibility of the measure in relation to the right to liberty, particularly regarding:

• why the broad legislative validation of a class of decisions is required, when it appears that the minister could make a renewed decision to refuse or cancel the visa of an affected person on an individual basis; 
• any alternative means that may be available that would protect such information only to the extent required for national security or alternative processes that would still allow such information to be tested in some way before a court or tribunal; and
• the availability of less rights restrictive criminal justice or national security mechanisms to address any risk posed by affected individuals.

Compatibility of the measure with the right to protection of the family

1.196         The right to protection of the family under article 17 of the ICCPR includes ensuring that family members are not involuntarily and unreasonably separated from one another. This right may be engaged where a person is expelled from a country without due process and is thereby separated from their family life.[101] The measure engages and limits the right to protection of the family as the validation of a visa cancellation could operate to separate family members.

1.197         The statement of compatibility reasons that the amendments cannot be said to give rise to arbitrary interference with family life as they do not 'expand visa cancellation powers or impact the grounds upon which a person may have had their visa cancelled'.[102]

1.198         However, the bill seeks to validate decisions to cancel or refuse a visa which had regard to information protected under section 503A, in the event that they would otherwise be invalid. In each such individual case, the measure has potential for arbitrary interference with family life, due to a lack of due process provided to the affected person.

1.199         Of relevance in this respect is the case of Leghaei v Australia, in which the author of the communication to the UNHRC was denied a permanent visa to remain in Australia on the basis that the author had been assessed by the Australian Security Intelligence Organisation (ASIO) as being a threat to national security. His wife and four children were either Australian citizens or permanent residents. The UNHRC found a violation of article 17 of the ICCPR:

While his legal representatives were provided with information on evidence held against him, they were prevented, by a decision by the judge, from communicating to the author any information that would permit him to instruct them in return and to refute the threat that he allegedly posed to national security.

In light of the author's 16 years of lawful residence and long-settled family life in Australia and absence of any explanation from the State party as to the reasons for terminating his right to remain, except for the general assertion that it was done for 'compelling reasons of national security', the Committee finds that the State party's procedure lacked due process of law... the Committee considers that the State Party has violated the author's rights under article 17, read in conjunction with article 23...[103]

1.200         Section 503A goes further than the provision at issue in Leghaei v Australia in withholding the information from not only the person, but their lawyer and the court. There is therefore a serious risk that decisions based on information protected by section 503A limit the right to freedom from arbitrary interference in family life. The statement of compatibility did not address the matters raised in Leghaei v Australia.

Committee comment

1.201        The preceding analysis raises questions as to the compatibility of the measure with the right to protection of the family.

1.202        The committee therefore requests the advice of the minister as to:

• any safeguards in relation to the particular circumstances of families; and
• the concerns outlined in Leghaei v. Australia, including the inability of affected individuals to contest or correct information on which the refusal or cancellation is based.

Compatibility of the measure with the right to non-refoulement and the right to an effective remedy

1.203         Australia has non-refoulement obligations under the Refugee Convention, the ICCPR and the Convention Against Torture (CAT). This means that Australia must not return any person to a country where there is a real risk that they would face persecution, torture or other serious forms of harm, such as the death penalty; arbitrary deprivation of life; or cruel, inhuman or degrading treatment or punishment.[104] Non-refoulement obligations are absolute and may not be subject to any limitations.

1.204         As the committee has previously stated on numerous occasions, 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 giving effect to non-refoulement obligations.[105]

1.205         The statement of compatibility acknowledges that the bill may 'engage [the right to non-refoulement] because one eventual consequence of confirming the validity of decisions to refuse or cancel a visa may be removal from Australia'. However, it goes on to state that the amendments do not set out that the automatic consequence of validating the decision will be removal from Australia and that consideration of non-refoulement obligations is undertaken 'before a non-citizen is considered to be available for removal from Australia. Any removal from Australia is conducted in accordance with Australia's non-refoulement obligations'.[106]

1.206         Under section 501E of the Migration Act, a person whose visa is refused or cancelled on character grounds is prohibited from applying for another visa.[107] Section 198 of the Migration Act requires an immigration officer to remove an unlawful non-citizen in a number of circumstances as soon as reasonably practicable. Section 197C of the Migration Act also provides that, for the purposes of exercising removal powers under section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. There is no statutory protection ensuring that an unlawful non-citizen to whom Australia owes protection obligations will not be removed from Australia, nor is there any statutory provision granting access to effective and impartial review of the decision as to whether removal is consistent with Australia’s non-refoulement obligations. As stated in previous human rights assessments, ministerial discretion not to remove a person is not a sufficient safeguard under international law.[108] Therefore concerns remain that the measure may engage and limit the right to non-refoulement in conjunction with the right to an effective remedy. 

Committee comment

1.207        The committee notes that the obligation of non-refoulement is absolute and may not be subject to any limitations.

1.208        The committee notes that the measure does not provide a non-discretionary bar to refoulement, nor merits review of decisions relating to the validation of visa cancellation or refusal decisions, and is therefore likely to be incompatible with Australia's obligations under the ICCPR and the Convention Against Torture.

Compatibility of the measure with freedom of movement (right to enter one's own country)

1.209         The right to freedom of movement is protected under article 12 of the ICCPR and includes a right to leave Australia as well as the right to enter, remain, or return to one's 'own country'.[109]

1.210         The reference to a person's 'own country' is not restricted to the formal status of citizenship. It includes a country to which a person has very strong ties, such as the country in which they had resided for a substantial period of time and established their home.[110]

1.211         The right to freedom of movement is engaged by this measure, as an eventual consequence of validating visa cancellation decisions is the deportation and re-entry ban of a person who may, despite not holding formal citizenship, have such strong ties to Australia that they consider Australia to be their 'own country'.

1.212         The statement of compatibility does not acknowledge that the right to enter one's own country is engaged and limited, however in the context of other rights, states that the measure is a reasonable response to a legitimate objective. As discussed above at 1.192 to 1.193, whilst the safety of the community and the integrity of the migration system are capable of constituting legitimate objectives under international human rights law, there are serious questions as to whether the measure is effective to achieve, and proportionate to, those objectives.

Committee comment

1.213        The preceding analysis raises questions as to the compatibility of the measure with the right to freedom of movement (the right to enter one's own country).  

1.214        The committee therefore seeks further information from the minister as to the proportionality of the measure, in particular regarding any safeguards applicable to individuals for whom Australia is their 'own country', such as ensuring their visa is only cancelled as a last resort where other mechanisms to protect the safety of the Australian community are unavailable.

Compatibility of the measure with the right to an effective remedy

1.215         Should section 503A impermissibly limit a human right, those affected have the right to an effective remedy. The right to an effective remedy is protected by article 2 of the ICCPR, and may include restitution, guarantees of non-repetition of the original violation, or satisfaction. The right to an effective remedy may take many forms, however it is not able to be limited according to the usual proportionality framework.

1.216         In relation to the human rights implications of section 503A, the right to an effective remedy would likely include a fresh review of the expulsion decision, where the person affected is entitled to access and challenge adverse evidence, including section 503A protected information.

1.217         Should section 503A be declared invalid or read down in the current litigation before the High Court, it is unclear whether the bill would allow affected persons to challenge the decision anew and access the information previously protected by section 503A in those proceedings.

1.218         The statement of compatibility does not acknowledge that the right to an effective remedy was engaged by the measure.

Committee comment

1.219        The committee therefore seeks the advice of the minister as to whether in the event that section 503A is held to be invalid, a person whose decision is validated under the amendments will be able to challenge the refusal or cancellation decision anew and access information previously protected under section 503A, in those proceedings.

Social Services Legislation Amendment (Better Targeting Student Payments) Bill 2017

Purpose	Seeks to amend the Social Security Act 1991 to restrict access to the relocation scholarship to students relocating within Australia and students studying in Australia
Portfolio	Social Services
Introduced	House of Representatives, 21 June 2017
Right	Social security (see Appendix 2)
Status	Seeking additional information

Restricting access to the relocation scholarship

1.220         The relocation scholarship provides supplementary payments to recipients of Youth Allowance or ABSTUDY who relocate for tertiary study.[111]

1.221         The Social Services Legislation Amendment (Better Targeting Student Payments) Bill 2017 (the bill) seeks to remove access to the relocation scholarship for:

• students whose parental home or usual place of residence is outside of Australia and who relocate to attend university in Australia; and
• students studying in Australia who relocate to undertake part of their Australian courses outside of Australia.[112]

Compatibility of the measure with the right to social security

1.222         The right to social security recognises the importance of adequate social benefits in reducing the effects of poverty and plays an important role in realising many other rights.

1.223         Under international human rights law, Australia has obligations to progressively realise the right to social security using the maximum of resources available. Australia has a corresponding duty to refrain from taking retrogressive measures, or backwards steps, in relation to the realisation of this right. Restricting access to the relocation scholarship would appear to be a backwards step in relation to social security and accordingly this limitation on the level of attainment needs to be justified. It is noted that for an individual student the loss of the relocation scholarship is significant as it currently pays $4,376 in the first year and between $2,189 and $1,094 in subsequent years in addition to regular Youth Allowance or ABSTUDY social security payments.[113]

1.224         Limitations on the right to social security may be permissible providing that they address a legitimate objective, are rationally connected to that objective and are a proportionate way to achieve that objective. The statement of compatibility acknowledges that the measure engages the right to social security and identifies the purpose of the measure as to 'simplify and streamline the delivery of the Relocation Scholarship to better reflect the policy intent of the Scholarship'.[114] However, 'simplifying' and 'streamlining' do not constitute legitimate objectives for the purposes of international human rights law and do not acknowledge the extent of the payment reduction. Rather, a legitimate objective must address a pressing or substantial concern, and not simply seek an outcome regarded as desirable or convenient.

1.225         It is noted that the statement of compatibility identifies some safeguards that may go to the proportionality of the limitation, and therefore its compatibility with human rights. However, in order to assess whether the measure is a proportionate limitation, it is first necessary to identify a legitimate objective.  

Committee comment

1.226        The preceding analysis raises questions as to whether the measure is a permissible limitation on the right to social security.

1.227        The committee therefore seeks the advice of the minister as to:

• whether there is reasoning or evidence that establishes that the stated objective addresses a pressing or substantial concern or whether the proposed changes are otherwise aimed at achieving a legitimate objective for the purposes of human rights law;
• how the measure is effective to achieve (that is, rationally connected to) that objective; and
• whether the limitation is a reasonable and proportionate measure to achieve the stated objective.

Social Services Legislation Amendment (Welfare Reform) Bill 2017

Purpose	Seeks to amend various acts to: create a Jobseeker Payment to replace seven existing payments as the main payment for people of working age from 20 March 2020 and replace other payment types; remove the ability of Newstart Allowance and certain special benefit recipients aged 55 to 59 to satisfy the activity test by engaging in voluntary work for at least 30 hours per fortnight; remove certain exemptions for drug or alcohol dependence; provide that a job seeker's Newstart Allowance or Youth Allowance be payable from the date they attend their initial appointment with their employment services provider; provide that job seekers are not able to use drug or alcohol dependency as an excuse for failing to meet their requirements; introduce a new compliance framework for mutual obligation requirements in relation to participation payments; establish a two year drug testing trial in three regions for 5,000 new recipients of Newstart Allowance and Youth Allowance; enable certain information obtained in the course of an administrative action to be used in subsequent investigations and criminal proceedings; and to exempt two social security laws from the operation of the Disability Discrimination Act 1992
Portfolio	Social Services
Introduced	House of Representatives, 22 June 2017
Rights	Social security; adequate standard of living; equality and non-discrimination; privacy; protection of the family; rights of children (see Appendix 2)
Status	Seeking additional information

Nature of key rights engaged

1.228         The Social Services Legislation Amendment (Welfare Reform) Bill 2017 (the bill) contains a number of schedules that impact on the administration, qualification and receipt of social security.

1.229         These measures engage the right to social security and the right to an adequate standard of living. The human rights assessment of the bill below addresses individual measures that raise human rights concerns in relation to these rights.

1.230         The right to social security recognises the importance of adequate social benefits in reducing the effects of poverty and plays an important role in realising many other rights. The right to an adequate standard of living requires state parties to take steps to ensure the availability, adequacy and accessibility of food, clothing, water and housing.[115]

1.231         Under international human rights law, Australia has obligations to progressively realise the right to social security and the right to an adequate standard of living using the maximum of resources available. Australia has a corresponding duty to refrain from taking retrogressive measures, or backwards steps, in relation to the realisation of these rights.

1.232         A retrogressive measure is a type of limitation on an economic, social or cultural right and accordingly needs to be justified. A limitation on a right may be permissible provided that it addresses a legitimate objective, is effective to achieve (that is, rationally connected to) that objective and is a proportionate means to achieve that objective. A legitimate objective must address a pressing or substantial concern, and not simply seek an outcome regarded as desirable or convenient.

1.233         Certain schedules of the bill also engage the right to privacy and the right to equality and non-discrimination, which are set out below.

Schedules 1-7 – creation of a new jobseeker payment and cessation of other payment types

1.234         Schedules 1-7 of the bill seek to create a new jobseeker payment which will be the main working age social security payment and provide that a number of other social security payments will cease. The bill proposes to cease Newstart Allowance, Sickness Allowance, Wife Pension, Bereavement Allowance, Widow Allowance, Widow B Pension and Partner Allowance.[116]

Compatibility of the measures with the right to social security and the right to an adequate standard of living

1.235         The statement of compatibility acknowledges that the measures engage the right to social security and refers to jurisprudence of the UN Committee on Economic Social and Cultural Rights (UNCESR) explaining that:

[the UNCESCR] stated that there is 'a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under the Covenant.' The [UNCESCR] places a burden on the State party that has introduced deliberately retrogressive measures to 'prove that they have been introduced after the most careful consideration of all alternatives and that they are duly justified...'[117]

1.236         At the outset, given the complexity of the measures, it is not clear whether they are retrogressive. In relation to the creation of the Jobseeker Payment and the cessation of other payment types, the statement of compatibility states that over 99.9 percent of social security recipients will continue to be eligible for income support. These recipients will transition from the payment types that are ceasing to the Age Pension, the Jobseeker Payment or Carers Payment with a range of transitional arrangements provided as safeguards.[118] It appears that it is intended that most current social security recipients will be transitioned onto new payment types with the exception of some recipients residing overseas.[119] The explanatory memorandum explains that the creation of the Jobseeker Payment 'will have the same basic qualification, payability and rate as existing Newstart Allowance, however, the payment will be broader in scope than Newstart Allowance'.[120]

1.237         Given that the qualification requirements and the amount payable to social security recipients varies between types of payments, the question arises as to whether certain individuals may be worse off than under current arrangements. In other words, there is some potential that these measures could be retrogressive. For example, following the death of a partner, subject to means and asset testing, the Bereavement Allowance currently pays up to $803.30 per fortnight for a period of 14 weeks. By contrast, current fortnightly payments for Newstart Allowance for a single person are $535.60. With the cessation of the Bereavement Allowance, the explanatory memorandum states that certain new and existing social security recipients will become entitled to an additional one off payment following the death of their partner instead of Bereavement Allowance. It is not stated whether the amount payable would be equivalent to the current amount payable under the Bereavement Allowance or whether qualification for it will be the same.

Committee comment

1.238        The statement of compatibility acknowledges that the measure engages the right to social security. However, it is unclear whether the measures constitute a reduction in the level of attainment of the right to social security.

1.239        Accordingly, the committee seeks the advice of the minister as to:

• whether the cessation of certain social security types could result in reductions in the amount payable or qualification for any new or existing social security recipients, or whether such payments will be equivalent to the types of payments that are ceasing;
• whether any new or existing social security recipients would be worse off under the transitional arrangements;
• what safeguards are provided in relation to the measures (for example, to ensure that individuals continue to receive social security); and
• if there are any reductions in the amount of social security payable (retrogressive measures), whether they pursue a legitimate objective; are rationally connected to their stated objective; and are a reasonable and proportionate measure for the achievement of that objective.

Schedule 10 – Start date for Newstart and Youth Allowance payments

1.240         Under current RapidConnect requirements, persons claiming Newstart Allowance or Youth Allowance, unless otherwise exempt, are required to attend an interview with an employment services provider before their income support is payable.[121] Payment is not made until claimants attend such an interview but is currently backdated to the date on which the claim was made. In some cases, this may be the date of first contact with the Department of Human Services.

1.241         Persons claiming Newstart and Youth Allowance, unless exempt, are also currently required to serve a waiting period of 7 days before payment is made, usually beginning from the date of claim.[122]

1.242         Schedule 10 of the bill seeks to amend the Social Security (Administration) Act 1999 so that payments for individuals who are claiming Newstart Allowance or Youth Allowance, and are subject to RapidConnect, will be backdated to the day the individual attends their initial appointment with an employment services provider, instead of the date of claim.[123]

Compatibility of the measure with the right to social security and right to an adequate standard of living

1.243         The right to social security and the right to an adequate standard of living are engaged and limited by this measure.

1.244         By proposing to backdate Newstart and Youth Allowance payments to the date an applicant attends an initial interview with a job services provider, instead of the earlier date of claim, the measure appears to reduce the initial amount payable to the applicant. Accordingly, the measure may impact on an individual's ability to afford the necessities to maintain an adequate standard of living.

1.245         By bringing forward the start day for payments to some applicants under Newstart and Youth Allowance, the proposed measure would appear to constitute a backwards step in the realisation of these rights and, accordingly, this limitation needs to be justified.

1.246         While acknowledging that the measure engages the right to social security and the right to an adequate standard of living, the statement of compatibility sets out that any limitations on these rights are 'necessary and proportionate' to achieving 'the legitimate policy objective of encouraging greater workforce participation and self-support for job seekers who have no significant barriers to employment'.[124]

1.247         While this may be considered a legitimate objective for the purposes of international human rights law, limited information is provided in the statement of compatibility as to whether the measure is effective to achieve the stated objective and is a proportionate means of doing so.

1.248         At present, payment of Newstart and Youth Allowance is not made until the claimant, unless exempt, attends an interview with a job services provider. Therefore, an incentive to connect with a job services provider would appear to already exist. The statement of compatibility does not explain why this existing measure is inadequate in encouraging Newstart and Youth Allowance claimants to connect promptly with their job services provider. Without such detail, it is not clear that the proposed measure is the least rights restrictive way of achieving the stated objective.

1.249         The statement of compatibility sets out some information which may be relevant to the proportionality of the measure. This includes that the measure would not apply to job seekers who are exempt from RapidConnect, including disadvantaged job seekers, and that the secretary may take account of individual circumstances when a claimant fails to attend an interview to determine the start day for payment. In particular, the statement of compatibility notes that if an appointment with a job services provider is not available within two business days, payment is backdated to the date on which the original requirement to attend an interview was made.[125]

1.250         However, it is unclear from the statement of compatibility what time period exists between the date a claim for payment is made and the date on which the requirement to attend an interview is imposed. Nor is it stated how the proposed measure interacts with the 7 day Ordinary Waiting Period for claimants, and whether back pay or the length of the waiting period is affected in this context. Accordingly, it is not clear how many days a claimant may have to wait from the original date of claim to the start day for payment or the maximum period of time a person may go without back pay. This information is necessary to determine the extent to which a job seeker's initial payment would be affected by this measure or the extent of the limitation on the right to social security and the right to an adequate standard of living.

Committee comment

1.251        The preceding analysis raises questions as to whether the measure is a proportionate limit on the right to social security and the right to an adequate standard of living.

1.252        The committee therefore seeks the advice of the minister as to:

• how the measure is effective to achieve (that is, rationally connected to) the objective; and
• how the limitation is a reasonable and proportionate measure to achieve the stated objective (including why existing measures are insufficient to achieve the stated objective of the measure, the existence of relevant safeguards and the period of time a person may be required to go without payment or back pay).

Schedule 12 – Mandatory drug-testing trial

1.253         Schedule 12 seeks to establish a two year trial of mandatory drug-testing in three regions, involving 5,000 new recipients of Newstart Allowance and Youth Allowance. New recipients will be required to acknowledge in the claim for Newstart Allowance and Youth Allowance that they may be required to undergo a drug test as a condition of payment, and will then be randomly subjected to drug testing.

1.254         Recipients who test positive will then be subject to income management for 24 months and be subject to further random tests. If a recipient tests positive to a subsequent test, they will be required to repay the cost of these tests through reduction in their fortnightly social security payment. This may be varied due to hardship. Recipients who test positive to more than one test during the 24 month period will be referred to a contracted medical professional for assessment.[126] If the medical professional recommends treatment, the recipient will be required to complete certain treatment activities, such as counselling, rehabilitation or ongoing drug testing, as part of their employment pathway plan.[127] 

1.255         Recipients who do not comply with their employment pathway plan, including drug treatment activities, would be subject to a participation payment compliance framework, which may involve the withholding of payments. Recipients would not be exempted from this framework if the reason for their non-compliance is wholly or substantially attributable to drug or alcohol use.[128]

1.256         Recipients who refuse to take the test will have their payment cancelled on the day they refuse, unless they have a reasonable excuse. If they reapply, their payment will not be payable for 4 weeks from the date of cancellation, and they will still be required to undergo random mandatory drug-testing.[129]

Compatibility of the measure with the right to privacy

1.257         The right to privacy includes the right to protection against arbitrary or unlawful interference with a person's privacy, family, home or correspondence. As acknowledged in the statement of compatibility,^[130] the right to privacy extends to protecting a person's bodily integrity against compulsory procedures such as drug testing. Drug testing is an invasive procedure and may violate a person's legitimate expectation of privacy. Further, the measure requires the divulging of private medical information to a firm contracted to conduct the drug testing. A person may need to provide evidence of their prescriptions and/or medical history to the company to avoid false positives that, for example, detect prescribed opioids. Finally, the use of a card in purchasing essential goods after a person's benefit is quarantined will disclose that a person receives quarantined social security payments. On these bases, the measure engages and limits the right to privacy.

1.258         A limitation on the right to privacy may be permissible where it is pursuant to a legitimate objective, is rationally connected to (that is effective to achieve) that objective, and is proportionate to achieve that objective. In assessing whether a measure is proportionate, some of the relevant factors to consider include whether the measure provides sufficient flexibility to treat different cases differently or whether it imposes a blanket policy without regard to the merits of an individual case, whether affected groups are particularly vulnerable, and whether there are other less restrictive ways to achieve the same aim.

1.259         The statement of compatibility states that the objective of the drug testing trial is twofold:

• [to] maintain the integrity of, and public confidence in, the social security system by ensuring that tax-payer funded welfare payments are not being used to purchase drugs or support substance abuse; [and]
• [to] provide new pathways for identifying recipients with drug abuse issues and facilitating their referral to appropriate treatment where required.[131]

1.260         In support of the need for the measure, the statement of compatibility referred to statistics indicating that a greater number of people are using drug and alcohol use as an exemption to mutual obligation requirements.[132] The statement of compatibility argues that the drug testing measure will help direct people into treatment before the drug use becomes too severe and a barrier to employment.[133]

1.261         The statement of compatibility does not provide evidence of a pressing social need to address the use of welfare payments to purchase drugs or support substance abuse. However, on the basis of the information and arguments presented, the measure can be understood as pursuing the objectives of the early treatment of harmful drug use to prevent drug dependency, and addressing barriers to employment created by drug dependency. These are likely to constitute legitimate objectives under international human rights law.

1.262         There are, however, serious concerns as to whether the measure is effective to achieve, and proportionate to these legitimate objectives.

1.263         First, the measure appears to be overly broad. The randomised drug test is not reliant on any reasonable suspicion that a person has a drug abuse problem. Any selected person is then made to disclose medical information to the private firm contracted to conduct the testing, and subjected to an invasive medical procedure. If they test positive once, even if it was the first time they had used an illicit drug[134] or it was a false positive,[135] their payments are quarantined for two years, during which period they must use a cashless welfare card.[136] This card will immediately disclose that a person is receiving a welfare payment, whenever they use it. Yet, the single use of the drug is unlikely to constitute a barrier to employment, nor necessarily lead to dependence.[137]

1.264         Second, it is unclear whether there will be adequate privacy safeguards as to the medical and drug-related information disclosed to a private provider of drug tests. The statement of compatibility states:

This trial will be subject to the existing safeguards in the Privacy Act 1988 and the confidentiality provisions in the Social Security (Administration) Act 1999 which protect the collection, use and disclosure of protected information. A joint Privacy Impact Assessment by the Department of Human Services and the Department of Social Services is being conducted for this measure and will be submitted to the Office of the Australian Information Commissioner to ensure implementation of the measure minimises privacy law risks.[138]

1.265         The existing safeguards in the Privacy Act 1988 and the Social Security (Administration) Act 1999 (Social Security Administration Act) may not be sufficient in this context to establish the proportionality of the limitation. For example, it appears that they may not prevent the Department of Human Services from disclosing the fact of a person's positive drug test to law enforcement, state welfare agencies or the Department of Immigration and Border Protection. The risk of prosecution, visa cancellation or loss of child custody, may prevent people from attempting to access Newstart or Youth Allowance payments, causing destitution. Further, it appears that they may not prevent the Department of Human Services or a private contractor from disclosing information regarding a particular welfare recipient to the public to correct that person's criticism of the trial.[139]

1.266         A question also arises as to how long drug test samples will be retained. The taking and retention of bodily samples for testing purposes can contain significant personal information. 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'.[140]

1.267         Rules made by the minister pursuant to proposed section 38FA[141] of the Social Security Administration Act as well as the preparation of a Privacy Impact Assessment, may result in further safeguards which would address concerns regarding retention and disclosure of drug test samples. However, no detail has been provided as to the intended content of the rules. 

1.268         Third, the trial may limit the privacy rights of a large group of people, in order to identify a very small number of people who had used illicit drugs or have a drug abuse problem. For example, in relation to drug testing in the United States jurisdiction of Florida, only 2.6% of welfare recipients tested were found to have used drugs, most commonly marijuana. This trial may target areas with a higher percentage of drug users which may identify a higher number of people.[142] However, it still raises the concern that the measure is disproportionate. 

1.269         Fourth, there appear to be a variety of less rights restrictive methods to achieve the objective of providing new pathways for referral to treatment of those who have or are likely to develop substance abuse issues, not least increasing the availability and promotion of treatment options for those with drug and alcohol dependency. This was not addressed in the statement of compatibility.

Committee comment                                                                                                                                         

1.270        The right to privacy is engaged and limited by this measure. The preceding analysis raises questions as to whether the measure is a permissible limitation on that right.

1.271        The committee therefore seeks further advice from the minister as to how the measure is effective to achieve and  proportionate to its objectives, including:

• whether overseas experience indicates that this trial will be effective to achieve its objectives;
• whether there will be a process to apply to remove income quarantining measures if no longer necessary or if special circumstances exist;
• whether there will be additional safeguards in place in relation to the disclosure of drug test results, particularly to law enforcement, immigration authorities, other agencies and the public and the nature of those safeguards; and
• the availability of less rights restrictive measures to achieve the objectives of the trial.

Compatibility of the measure with the right to social security and the right to an adequate standard of living

1.272         The measure engages the right to social security and an adequate standard of living in three ways. First, the measure may result in a reduction in payments to cover the costs of positive drug tests, or to penalise a person for failing to fulfil their mutual obligation requirements. Second, the risk of the result of the test being disclosed to law enforcement, immigration or other welfare authorities may cause people to avoid applying for necessary welfare payments, causing destitution. Third, the measure may impermissibly discriminate against those with substance addictions which rise to the level of disability, as further discussed below under the right to equality and non-discrimination.

1.273         A limitation on the right to social security and an adequate standard of living may be permissible where it is pursuant to a legitimate objective, effective to achieve that objective, and proportionate to that objective. As discussed above, the objectives of early treatment of harmful drug use to prevent drug dependency and addressing barriers to employment created by drug dependency are likely to be legitimate objectives for the purposes of human rights law. However, there are serious concerns regarding whether the measure is effective to achieve and proportionate to those objectives.

1.274         The statement of compatibility states:

Income management does not reduce the total amount of income support available to a person, just the way in which they receive it... Job seekers placed on Income Management under this trial will still be able to purchase items at approved merchants and pay rent and bills with their quarantined funds... Evidence collected on Income Management in Western Australia indicates that the program is improving the lives of many Australians. It has given many participants a greater sense of control of money, improved housing stability and purchase restraint for socially harmful products while reducing a range of negative behaviours in their communities including drinking and violence.[143]

1.275         While income management does not reduce the amount of income support available, the committee has previously examined income management measures and considered them to raise concerns, particularly where income management was not voluntary or inflexibly applied. The committee found that whilst compulsory income management did reduce spending of income managed funds on proscribed items, it could increase welfare dependence, and interfere with a person's private and family life.'[144] In particular, the committee highlighted that '[t]he compulsory income management provisions operate inflexibly raising the risk that people who do not need assistance managing their budget will be caught up in the regime.'[145] Similarly, in this instance, the imposition of income management for two years may be disproportionate to the objectives pursued, particularly where inflexibly imposed on a person who may have used an illicit drug but does not have ongoing drug abuse issues.

1.276         Further, it appears that once the drug test is positive, the contractor may issue a notice to the Secretary that the person should be subject to income management, even where the person requests a second drug test. The mechanics of requesting a second drug test or providing evidence of legal medication are unclear. It appears possible that a person may be subject to income management for a period even where the result is challenged and a retest scheduled.

1.277         The measure will require those who test positive to drugs to repay the cost of the drug test over time, via deductions from their payments. Given the basic rate of Newstart and Youth Allowance,[146] there is a significant risk that repaying the cost of tests, even capped at a 10% reduction in the payment, will compromise a person's ability to afford necessities to live and successfully look for work. The explanatory memorandum refers to the existence of safeguards against hardship, specifically the power of the secretary to vary the rate of repayment where the person's circumstances are 'exceptional', and the person would suffer 'severe financial hardship'.[147] The existence of a safeguard is welcomed, however the proposed test sets a very high threshold for the exercise of this power. On its face, it appears the test may be difficult to meet even when experiencing hardship. For example, it is questionable whether it would be satisfied where many people are experiencing similar circumstances of severe hardship, and therefore their individual circumstances are not considered to be 'exceptional'.

1.278         The reduction in payments to penalise a person for failing to undertake treatment activities as part of their employment pathway plan, may also severely compromise a person's ability to afford basic necessities. The statement of compatibility reasons that Australia's welfare system is founded on principles of mutual obligation, and that 'it is reasonable to expect the job seeker to pursue treatment as part of their Job Plan and be subject to proportionate consequences if they fail to do so.'[148] However, there are questions regarding whether withholding subsistence payments for failure to attend treatment takes into account evidence that addiction often involves cycles of relapse before recovery.[149] In this respect, the statement of compatibility argues that there are provisions in place to address individual vulnerabilities:

the vulnerability of people and the impact of their circumstances on their ability to comply with their mutual obligation requirements is considered under social security law through reasonable excuse and exemption provisions, and delegates have significant discretionary powers regarding the application of compliance actions to consider the circumstances of each individual case.[150]

1.279         Other measures in the bill, as discussed below, seek to ensure that drug addiction is not considered as a reasonable excuse or exemption. Given the basic rate of Youth Allowance and Newstart, the requirements to use up most of one's savings before becoming eligible for Newstart, and these reasonable excuse and exemption measures, it is unclear how a delegate's discretion will prevent those addicted to drugs from being unable to afford basic needs.

1.280         As stated above, should the regulations not adequately circumscribe the disclosure of drug test results, including by private contractors, this measure may also result in people in need of social security avoiding accessing payments due to the fear of consequences such as prosecution, deportation or loss of child custody. The risk that the measure may prevent people from attempting to access Newstart or Youth Allowance payments, despite need, also affects the proportionality of the measure.

1.281         Finally, as discussed above in relation to the right to privacy, the statement of compatibility does not address the availability of less rights restrictive measures to achieve the objectives of the measure. This is particularly important in the context of the right to social security given the strong presumption that retrogressive measures are prohibited under the International Covenant on Economic Social and Cultural Rights (ICESCR) and that the state has the burden of proving that they were introduced after the most careful consideration of all alternatives.[151]

Committee comment

1.282        The right to social security and an adequate standard of living is engaged and limited by this measure. The preceding analysis raises questions as to whether the measure is compatible with these rights.

1.283        The committee seeks further advice from the minister as to the effectiveness and proportionality of the measure including:

• whether recipients will be informed that they may request a retest or provide evidence of legal medications, and how these processes will occur;
• whether there is a mechanism to challenge or review the imposition of income management;
• whether a person can successfully have their rate of repayment reduced where they would experience severe hardship, but their circumstances are similar to others;
• further detail as to how the discretion of delegates will operate to consider the vulnerability of those with drug dependencies and ensure that their payments are not reduced such that they are unable to afford basic needs;
• whether there will be limits placed on the disclosure of drug test results to law enforcement, immigration authorities or other agencies; and
• whether there are less rights restrictive methods to achieve the objectives of the measure.

Compatibility of the measure with the right to equality and non-discrimination

1.284         The right to equality and non-discrimination is protected by articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR) and article 2 of the ICESCR. It is further protected with respect to persons with disabilities by Article 2 of the Convention on the Rights of Persons with Disabilities (CRPD). The right applies to the distribution of welfare benefits or social security.[152]

1.285         Article 26 of the ICCPR provides that all persons are equal before the law and entitled to equal protection of the law without any discrimination. It effectively prohibits the law from discriminating on any ground such as race, sex, religion, political opinion, national origin, or "other status." 

1.286         Where the person's drug use rises to that of dependence or addiction, the person has a disability, which is not only considered an "other status"[153] but is also protected from discrimination by the CRPD.[154] As acknowledged by the statement of compatibility, there may also be a disproportionate impact against Indigenous people, due to higher levels of drug and alcohol use.[155] Further the drug-testing will not be entirely random, but based on the development of a risk profile, which identifies risk factors to drug misuse.

1.287         The possible interference of prescription medications may also disadvantage those with communication difficulties who fail to disclose their prescriptions and therefore are tested as positive for illicit drugs.

1.288         To the extent that this measure affects those with drug and alcohol dependencies and Indigenous people it engages the right to non-discrimination. Under international human rights law, differential treatment^[156] will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is effective to achieve that legitimate objective and is a proportionate means of achieving that objective.

1.289         The statement of compatibility argues that the objective of the measure is to ensure that tax-payer funded welfare payments are not being used to support substance abuse and provide new pathways for identifying recipients and facilitating their referral to treatment where required.

1.290         As stated above, the early treatment of harmful drug use to prevent drug dependency, and addressing barriers to employment created by drug dependency are likely to be legitimate objectives for the purposes of human rights law. However, as discussed above, it is not clear that the measure is effective to achieve and proportionate to the stated objectives, and there would appear to be less rights restrictive methods to achieving these objectives.

Committee comment

1.291        The right to equality and non-discrimination is engaged by this measure. The preceding analysis raises questions as to the compatibility of the measure with this right.

1.292        The committee seeks further advice from the minister as to whether the measure is proportionate to its objective, in particular whether there are less rights restrictive alternatives to the measure to achieve the objective.

Schedules 13-14 – Removal of exemptions for drug or alcohol dependence; and changes to reasonable excuses

1.293         Under current social security law, a person may be exempted from participation or activity test requirements (mutual obligation requirements) in relation to the receipt of certain social security payments such as Newstart Allowance, Youth Allowance, parenting payments and special benefits. If they are not exempted from the requirements, and commit a 'participation failure' (such as failing to attend a participation interview or undertake a compulsory work activity) they will have their payments suspended, cancelled or reduced. However, where a person fails to meet a mutual obligation requirement or commits a participation failure, they will not be subject to a suspension or a non-payment penalty where that person has a 'reasonable excuse'.

1.294         Schedule 13 of the bill seeks to ensure that exemptions from mutual obligation requirements are not available where the reason for the exemption is wholly or predominantly attributable to drug or alcohol dependency or misuse.

1.295         Schedule 14 of the bill provides the secretary with a power to make a legislative instrument setting out the matters that must not be taken into account when deciding whether a person has a 'reasonable excuse' for committing a participation failure.

Compatibility of the measures with the right to equality and non-discrimination

1.296         As noted above, the right to equality and non-discrimination provides that all persons are equal before the law and entitled to equal protection of the law without any discrimination. It effectively prohibits the law from discriminating on grounds such as race, sex, religion, political opinion, national origin, or "other status".[157] 

1.297         Alcohol and drug dependence is considered to be a disability, and therefore considered "other status"[158] as well as protected from discrimination by the CRPD.[159] 

1.298         As stated in the statement of compatibility, the measure:

engages the rights to equality and non-discrimination because people who may have a disability or illnesses associated with drug or alcohol dependency (such as alcoholism) will be subject to differential treatment insofar as they will not be eligible for the exemption that people with another illness or disability could potentially access.[160]                          

1.299         The statement of compatibility also acknowledges potential discrimination against Aboriginal and Torres Strait Islander people who experience higher rates of drug and alcohol dependencies.

1.300         The statement of compatibility however states that in both instances, the differential treatment is permissible because the measure is 'reasonable and proportionate to the objective of encouraging these recipients to address the underlying cause of their incapacity'.[161] While this may be a legitimate objective for the purposes of human rights law, it is questionable whether the measures are effective to achieve (that is, rationally connected to) and proportionate to that objective. 

1.301         The proposed preclusion on obtaining an exemption is quite broad, affecting both the rational connection and proportionality of the measure to the objective of 'encouraging these recipients to address the underlying cause of their incapacity'.[162] The measure refers to circumstances, illness or accident 'predominantly attributable to a person's misuse of alcohol or another drug' and therefore appears to cover not only ongoing drug and alcohol misuse but diseases that may result from past misuse such as Alcoholic Liver Disease or brain damage. In these circumstances, a person may have already done all they can to address 'the underlying cause of their incapacity'. It may also cover injuries resulting from accidents when intoxicated, where again, the cause cannot be addressed as the misuse occurred in the past. In addition, it appears to cover circumstances where a person has undergone treatment unsuccessfully several times, and may no longer have the mental capacity to be assessed as a suitable candidate for treatment.

1.302         The explanatory memorandum states that an exemption would not cover 'a special circumstances exemption due to a major personal crisis because they have been evicted from their home due to drug or alcohol misuse'.[163] The measure therefore appears intended to have the effect that if a person fails to attend a participation interview or undertake a compulsory work activity because that person has, for instance, been rendered homeless, that person's social security payments will be suspended, cancelled or reduced, if this homelessness is predominantly attributable to drug or alcohol dependency.

1.303         It is difficult to see how making a person subject to mutual obligation requirements when they are in crisis due to eviction, caused by alcohol or drug misuse, which depending on severity may be a disability, will encourage that person to address the 'underlying cause of their incapacity'. The withdrawal of social security in circumstances of personal crisis may indeed exacerbate substance abuse problems, rather than encourage treatment.

1.304         Whilst the explanatory memorandum and statement of compatibility reason that the measure will allow treatment to be sought as part of mutual obligation requirements, it appears to rely on the exercise of discretion by the Department of Human Services. The legal basis for requiring treatment as part of an employment pathway plan is not apparent, and this is not addressed by the statement of compatibility.[164]

1.305         In order for a measure to be a proportionate limitation on the right to equality and non-discrimination, it must be shown that there were no less rights restrictive methods available to achieve the objective. In this instance, it is unclear, for example, why encouraging treatment and investing in additional treatment and referral services, as would be the case with other disabilities, is insufficient to encourage recipients to address the underlying cause of their incapacity.

1.306         A potentially important safeguard within the Social Security Administration Act is the mechanism by which a person will not be subject to a suspension or non-payment penalty for non-compliance with mutual obligation requirements where that person has a 'reasonable excuse'. As noted above, schedule 14 provides the secretary with a power to make a legislative instrument setting out what constitutes a reasonable excuse. The statement of compatibility states that this power is intended to be exercised so as to ensure that income support recipients will not be able to repeatedly use drug or alcohol abuse or dependency as a reasonable excuse for participation failures.[165] This raises a concern that what constitutes a 'reasonable excuse' may not cover the particular circumstances of those suffering from addiction. However, the statement of compatibility further explains that it is intended that they will still be able to use drug or alcohol abuse or dependency in the first instance, and be offered treatment as part of their employment pathway plan.[166]

1.307         The explanatory materials provide some further information about the likely content of such a legislative instrument made under schedule 14 and state that the penalty would not be imposed where treatment was not appropriate, or available:

It is intended that existing reasonable excuse provisions will continue to apply following the initial relevant participation failure due to drug or alcohol misuse or dependency where treatment is unavailable/inappropriate, including where the job seeker:

• is ineligible or unable to participate;
• has already participated in all available treatment;
• has agreed but not yet commenced in treatment; or
• has relapsed since completing treatment and is seeking further treatment.[167]

1.308         The content of these safeguards is important in assessing the human rights compatibility of the measure. However, without reviewing the legislative instrument, which will set out what constitutes a reasonable excuse, it is difficult to determine the extent of any limitation on the right to equality and non-discrimination and whether there will be sufficient safeguards to ensure that the limitation on this right is proportionate.   

Committee comment

1.309        The preceding analysis indicates that Schedules 13 and 14 engage the right to equality and non-discrimination.

1.310        The committee seeks further information from the minister as to whether the measures are reasonable and proportionate for the achievement of their objective and in particular:

• whether less rights restrictive measures would be workable; and
• whether adequate safeguards are available to protect the rights of people with disabilities relating to alcohol or drugs.

1.311        Noting that the details of what is to constitute a 'reasonable excuse' is to be provided by legislative instrument, the committee seeks the further information from the minister regarding the safeguards to be included in this instrument.

Compatibility of the measures with the right to social security and an adequate standard of living

1.312         Removing drug and alcohol dependence as an exemption to mutual obligation requirements means that more people will be required to comply with such requirements. As a failure to meet these requirements without a reasonable excuse will result in the reduction or suspension of social security payments, the measure engages and may limit the right to social security and the right to an adequate standard of living. Further, the changes to what constitutes a 'reasonable excuse' in these circumstances also engages and may limit these rights to the extent that drug and alcohol abuse and dependency no longer constitute a reasonable excuse for failing to meet a mutual obligation requirement.[168]  

1.313         As discussed above, whilst encouraging recipients to address their underlying barriers to work is a legitimate objective under international law, there are questions as to whether the measures are effective to achieve and proportionate to that objective.

1.314         In the context of the right to social security and an adequate standard of living, these provisions may be particularly disproportionate as they restrict the discretion of compliance officers to take into account the particular hardship suffered by a person, where alcohol and drugs are involved, and therefore may operate to deny a person basic necessities. As stated above, many welfare payments are already paid at a basic rate, and require a person to have used the majority of their savings in order to be eligible. Therefore, there may not be a financial buffer for personal crises or illnesses that cause difficulties in meeting mutual obligation requirements. It is particularly concerning that a person may be subject to suspension or cancellation of social security payments in circumstances where they have been evicted from their housing due to alcohol or drug use. Under the intended rules of Schedule 14, it does not appear that they will then be able to access reasonable excuse provisions more than once. This kind of inflexibility may cause significant deprivation and fail to support people in addressing their substance misuse issues.

Committee comment

1.315        The preceding analysis indicates that Schedules 13 and 14 engage and limit the right to social security and an adequate standard of living.

1.316        The committee seeks further information from the minister as to whether the measures are reasonable and proportionate for the achievement of their objective and in particular:

• whether less rights restrictive measures would be workable; and
• whether adequate safeguards are available to protect people from suffering deprivation.

Compatibility with the right to protection of the family and the rights of the child

1.317         The rights of the family and child to protection and assistance are protected by Article 10 of ICESCR, as well as various provisions of the Convention on the Rights of the Child.

1.318         The statement of compatibility acknowledges that the right is engaged but argues that any penalties would only apply to income support payments made to the parent in respect of themselves. It states that '[a]ny payments made to the parents for the maintenance of their children, such as Family Tax Benefit, or to meet childcare costs would not be affected by the penalty'.[169] The statement of compatibility further notes that some principal carer parents on working age payments are only required to meet part time mutual obligation requirements, even if denied an exemption to the requirements due to alcohol or drug misuse. Finally, it states that these measures will encourage parents to address barriers to employment and move into work.[170] However, it is unclear how it is envisaged this will operate. If a parent is having difficulty paying rent or purchasing food due to the imposition of a financial penalty, this would naturally affect the standard of living of the children under their care. This raises questions about the proportionality of the measure to the protection of the family and the rights of the child.

Committee comment

1.319        The preceding analysis indicates that Schedules 13 and 14 engage and limit the right to protection of family and the rights of the child. 

1.320        The committee seeks further information from the minister as to whether the measures are reasonable and proportionate for the achievement of their objective and in particular:

• whether less rights restrictive measures would be workable; and
• whether there are adequate safeguards to protect the rights of children.

Schedule 15 – compliance framework

1.321         Currently, job seekers who receive an activity-tested income support social security participation payment (that is, Newstart Allowance and, in some cases, Youth Allowance, Parenting Payment or special benefit) are subject to the compliance framework set out in Division 3A of the Social Security Administration Act and must comply with mutual obligation requirements.[171] 

1.322         Schedule 15 of the bill proposes to introduce a new compliance framework, including:

• Payment suspension for non-compliance with a mutual obligation requirement;
• Financial penalties for refusing work; and
• Financial penalties for persistent non-compliance.

1.323         The committee has previously examined several bills which contained measures similar to those proposed in this schedule.[172] Measures raising human rights concerns are discussed below. 

Payment suspension for mutual obligation failures

1.324         Job seekers will have their income support payment suspended for every failure to meet a mutual obligation requirement without a reasonable excuse.[173] The suspension period ends when the person complies with the reconnection requirement (such as reconnecting with an employment provider) unless the secretary determines an earlier day. If the job seeker fails to reconnect with employment services within four weeks, their social security participation payment will be cancelled.[174] The measure is similar to those currently contained in division 3A of the Social Security Administration Act.

Compatibility of the measure with the right to social security and right to an adequate standard of living

1.325         As the measure operates to suspend social security payments, it engages and may limit the right to social security and the right to an adequate standard of living. As set out above, such limitations are permissible provided certain criteria are met.

1.326         The statement of compatibility identifies the legitimate objective of the measure as 'encouraging persons to remain engaged with employment services and actively seek and accept suitable work'.[175] This is likely to be a legitimate objective for the purposes of international human rights law.   

1.327         It is noted that the existence of safeguards is relevant to the proportionality of the measure. The statement of compatibility outlines some of the relevant safeguards including that the suspension does not apply if the person has a 'reasonable excuse'. What constitutes a reasonable excuse is to be outlined in a legislative instrument. The statement of compatibility notes that a 'reasonable excuse' may include, for example, 'whether the person or a close family member has suffered an illness or was prevented from complying by circumstances beyond their control'.[176] However, other aspects of this bill, as outlined above, seek to limit what constitutes a reasonable excuse. Without reviewing the legislative instrument, which will include further information on what constitutes a reasonable excuse, it is difficult to determine whether or not this mechanism will operate as an effective safeguard. 

1.328         The statement of compatibility outlines some other safeguards including that:

• Job seekers will continue to be eligible for concession card benefits while suspended (but not cancelled);
• cancelations and suspensions are subject to review both internally and externally;
• if a job seeker's payment is cancelled as a result of failing to reengage within four weeks, they are able to reclaim benefits immediately; and
• the payment suspension can be ended by fulfilling the reconnection requirement (such as attending an interview with their employment service provider) and be fully back paid.[177]

Committee comment

1.329        The statement of compatibility acknowledges that the measure engages the right to social security and the right to an adequate standard of living.

1.330        The committee requests the advice of the minister as to whether the measure is reasonable and proportionate for the achievement of its legitimate objective, in particular, what criteria will apply to whether a person is considered to have a 'reasonable excuse' for failing to comply with a mutual obligation requirement. 

Financial penalties for refusing work

1.331         Job seekers who fail to accept an offer of suitable work will have their social security payment suspended. They will also be subject to payment cancellation and a 4 week non-payment period if they are found to have refused or failed to commence the work without a reasonable excuse.[178]

1.332         Job seekers who leave suitable work voluntarily without a valid reason or are dismissed from suitable work due to misconduct will (in addition to having their payment cancelled if they are receiving payment) be subject to a 4 week non-payment period (or 6 weeks where the person received relocation assistance to move to take up the work).[179]

1.333         Currently, under section 42N of the Social Security Administration Act a person would be subject to a non-payment period of 8 weeks. However, the secretary has the discretion to end this period if it would cause 'severe financial hardship'.[180]

1.334         The bill would remove the ability for the non-payment penalty to be waived on the basis of financial hardship.

Compatibility of the measure with the right to social security and right to an adequate standard of living

1.335         As the measure operates to suspend social security payments, it engages and may limit the right to social security and the right to an adequate standard of living. The statement of compatibility identifies the objective of the measure as having:

demonstrably employable job seekers remain committed to obtaining work as soon as they can rather than continuing to remain in receipt of income support at tax-payers' expense.^[181]

1.336         In relation to the proportionality of the measure, the statement of compatibility outlines some safeguards and that this measure would reduce the non-payment penalty from eight-weeks to four-weeks.^[182] This reduction on its own would make the current arrangements less rights restrictive.

1.337         However, concerns remain as to whether, during this four-week period, there would be sufficient support for a person to meet basic necessities. In particular, the measure would remove the ability for the non-payment penalty to be waived on the basis of financial hardship. In this regard, the explanatory memorandum explains:

There will be no waivers for non-payment or preclusion periods under the new compliance framework. The current widespread availability of waivers, where over 88 per cent of penalties for serious failures are waived, has undermined the effectiveness of these penalties to the extent that they no longer provide a deterrent to job seekers who persistently fail to meet their requirements.[183]

1.338         The committee has previously examined the removal of the waiver and raised concerns regarding the compatibility of the measure with the right to social security and the right to an adequate standard of living.[184] It is unclear from the materials provided in the statement of compatibility that these concerns have been addressed.

1.339         While the statement of compatibility provides information as to the percentage of cases in which a waiver has been applied, the assessment does not establish that the removal or limitation of the waiver will, of itself, provide a deterrent against non-compliance with job seekers' obligations.^[185] In particular, the figures provided on the proportion of waivers granted are not accompanied by any basis to conclude that these were inappropriate, excessive or misused. It is therefore unclear how limiting the availability of a waiver on the ground of a job seeker's severe financial hardship, would achieve the stated objective of the measures. Even if so, it appears possible to address potential excessive reliance on the waiver without removing the waiver altogether.

Committee comment

1.340        The statement of compatibility acknowledges that the measure engages the right to social security and the right to an adequate standard of living.

1.341    The preceding analysis indicates that the measure may limit these rights and there are some questions about whether the safeguards are sufficient to ensure that the limitation is proportionate.

1.342    The committee therefore requests the advice of the minister as to whether the measure is reasonable and proportionate for the achievement of its stated objective, and in particular:

• whether the waiver was being misused or was ineffective;
• whether there are less rights restrictive options that are reasonably available, for instance, whether a waiver could be provided where circumstances justify the waiver in accordance with a more structured framework that allows for consistent and appropriate application of the waiver; and
• whether there are any safeguards in relation to the application of the measure (such as crises or when a person is unable to meet basic necessities).

Repeated non-compliance penalties

1.343         Schedule 15 proposes that recipients of the participation payments who have repeatedly failed to comply with their mutual obligation requirements will be subject to escalating reductions in their income support social security payments for further non-compliance with requirements.[186]

1.344         For the first failure of persistent non-compliance, the rate of participation payment for the instalment period in which the failure is committed or determined will be halved.^[187] For a second failure, the job seeker will lose their entire participation payment and any add-on payments or supplements for that instalment period.^[188] For a third failure, the job seeker's payment will be cancelled from the start of the instalment period and a 4 week non-payment period, starting from the date of cancellation, will apply if the job seeker reapplies for payment. There will be no waivers for non-payment periods.^[189]

1.345         Proposed section 42AR(1) obliges the minister to make a legislative instrument determining the circumstances in which the secretary must, or must not, be satisfied that a person has committed a persistent obligation failure.

Compatibility of the measure with the right to social security and right to an adequate standard of living

1.346         As the measure operates to suspend or cancel social security payments, it engages and may limit the right to social security and the right to an adequate standard of living. As noted above, the objective of 'encouraging persons to remain engaged with employment services and actively seek and accept suitable work' is likely to be considered a legitimate objective for the purposes of international human rights law.[190]

1.347         In relation to the proportionality of the measure, the explanatory memorandum explains: 

In practice, administrative arrangements will ensure that job seekers will need to have committed multiple failures without a reasonable excuse before they can be determined to be persistently non-compliant, and their provider and the Department of Human Services (DHS) will conduct checks to ensure the job seeker does not have any undisclosed issues that are affecting their ability to comply, and that their employment pathway plan is suitable for their circumstances. The factors that the Secretary must consider as constituting persistent non-compliance will be included in a legislative instrument.[191]

1.348         However, in order for a measure to be a proportionate limitation on human rights, it must be accompanied by sufficient safeguards in legislation. Accordingly, the criteria to be included in the legislative instrument that the Secretary must consider as constituting persistent non-compliance is relevant to the proportionality of the measure.

1.349         Additionally, the measure would remove the ability for the four-week non-payment penalty to be waived. The committee has previously examined the removal of the waiver and raised concerns regarding the compatibility of the measure with the right to social security and the right to an adequate standard of living.^[192] As noted above, it is unclear how limiting the availability of a waiver on the ground of a job seeker's severe financial hardship would achieve the stated objective of the measure. It is also unclear, during the four-week non-payment period, whether there would be sufficient support for a person to meet basic necessities or other safeguards.

Committee comment

1.350    The statement of compatibility acknowledges that the measure engages the right to social security and the right to an adequate standard of living.

1.351    The preceding analysis indicates that the measure may limit these rights and there are some questions about whether the safeguards are sufficient to ensure that the limitation is proportionate.

1.352    The committee therefore requests the advice of the minister as to whether the measure is reasonable and proportionate for the achievement of its stated objective, in particular:

• whether the waiver was being misused or was ineffective;
• whether there are less rights restrictive options that are reasonably available;
• whether there are any safeguards in relation to the application of the measure (such as, crises or when a person is unable to meet basic necessities);
• whether a waiver could be provided where circumstances justify the waiver in accordance with a more structured framework that allows for consistent and appropriate application of the waiver; and
• what criteria will be set out in the legislative instrument as matters the Secretary must or must not consider as constituting persistent non-compliance.

Schedule 17 – Information gathering powers and referrals for prosecution

1.353         Currently, the secretary may require a person to give information or produce a document that is in a person's custody or control in order to assess a person's qualification, payability or rate of payment.[193]

1.354         Schedule 17 of the bill would allow information and documents obtained in the course of such administrative action by the Department of Human Services to be used in subsequent investigations and criminal proceedings.[194]

1.355         It also proposes to provide that a person is not excused from giving information or producing a document on the ground that the information might tend to incriminate the person.[195]

Compatibility of the measure with the right to privacy

1.356         The right to privacy includes respect for informational privacy, including the right to respect for private and confidential information and the right to control the dissemination of information about one's private life. As the measure would allow for the compulsory collection and sharing of information about an individual it engages and limits the right to privacy. It does so in circumstances where the person providing the information or document will not be afforded the privilege against self-incrimination.

1.357         The right to privacy may be subject to permissible limitations which are provided by law and are not arbitrary. In order for limitations not to be arbitrary, the measure must pursue a legitimate objective, and be rationally connected and proportionate to achieving that objective. The statement of compatibility acknowledges that this measure engages the right to privacy but argues that this limitation is permissible.^[196]

1.358         The statement of compatibility explains that currently information and documents obtained under section 192 of the Social Security (Administration) Act 1999 are inadmissible in criminal proceedings. It notes that the current process is to obtain such information by search warrant:

Because of this, admissible evidence is obtained by using search warrants pursuant to section 3E of the Crimes Act 1914 (Cth). The Department of Human Services requests around 1,000 of these warrants annually. Each warrant requires two to three business days of a seconded Australian Federal Police agent's effort. This process places a significant burden on the Department of Human Services, the Australian Federal Police, warrant recipients and the courts, particularly when this information has already been collected under section 192 of the SS(Admin) Act for administrative purposes.[197]

1.359         The statement of compatibility identifies the objective of the measure as 'to streamline the process of gathering evidence for welfare fraud prosecution'.[198] Matters of administrative ease or streamlining processes on their own are unlikely to be considered a legitimate objective for the purpose of international human rights law. Rather, a legitimate objective must address a pressing or substantial concern and not simply seek an outcome regarded as desirable or convenient.

1.360         Further, the statement of compatibility does not demonstrate that the measure imposes a proportionate limitation on the right to privacy. In particular, the statement of compatibility does not address whether there are adequate safeguards in place with respect to the exercise of this information gathering and sharing power. It is noted that a warrant system by its nature provides external safeguards that would not be present in the new system. In order to be a proportionate limitation on the right to privacy a measure must be the least rights restrictive way of achieving its legitimate objective.

Committee comment

1.361        The preceding analysis indicates that there are questions as to whether the measure is a permissible limitation on the right to privacy.

1.362        The committee therefore seeks the advice of the minister as to:

• whether there is reasoning or evidence that establishes that the stated objective addresses a pressing or substantial concern or whether the proposed changes are otherwise aimed at achieving a legitimate objective;
• how the measure is effective to achieve (that is, rationally connected to) that objective; and
• whether the limitation is a reasonable and proportionate measure to achieve the stated objective.

Compatibility of the measure with the right not to incriminate oneself

1.363         Specific guarantees of the right to a fair trial in the determination of a criminal charge guaranteed by article 14 of the ICCPR include the right not to incriminate oneself (article 14(3)(g)).

1.364         Requiring a person to provide information or produce a document even if this information may incriminate them engages and limits the right not to incriminate oneself. This right may be subject to permissible limitations where the measure pursues a legitimate objective and is rationally connected to, and proportionate to achieving, that objective.

1.365         The statement of compatibility acknowledges this right is engaged. However, as noted above, it is unclear from the statement of compatibility whether the abrogation of the privilege against self-incrimination pursues a legitimate objective for the purpose of international human rights law.

1.366         The statement of compatibility identifies some matters which may go towards whether the measure is proportionate.[199] In particular, the statement of compatibility outlines that a 'use' and 'derivative use' would be available in relation to information provided.[200] Such immunities are important safeguards. However, in this case it is noted that the immunities are subject to a range of exceptions. In light of these exceptions, it is unclear whether the measure is sufficiently circumscribed so as to ensure the limitation is proportionate.

Committee comment

1.367        The preceding analysis indicates that there are questions as to whether the measure is a permissible limitation on the right not to incriminate oneself.

1.368        The committee therefore seeks the advice of the minister as to:

• whether there is reasoning or evidence that establishes that the stated objective addresses a pressing or substantial concern or whether the proposed changes are otherwise aimed at achieving a legitimate objective;
• how the measure is effective to achieve (that is, rationally connected to) that objective; and
• whether the limitation is a reasonable and proportionate measure to achieve the stated objective (including whether the exceptions to the 'use/derivative use' immunities are sufficiently circumscribed).

Schedule 18 – Exempting social security laws from disability discrimination law

1.369         The Social Security Act 1991 is currently exempt from the Disability Discrimination Act 1992. After this exemption was established, certain provisions from the Social Security Act 1991 were transferred to two new acts – the Social Security (Administration) Act 1999 and the Social Security (International Agreements) Act 1999. The exemption from the Disability Discrimination Act 1992 was not extended to these two new acts. The bill seeks to include the Social Security (Administration) Act 1999 and the Social Security (International Agreements) Act 1999 in the list of legislation exempt from the operation of the Disability Discrimination Act, as well as legislative instruments made under the Social Security Act 1991 and the Social Security (Administration) Act 1999.

Compatibility of the measure with the right to equality and non-discrimination

1.370         The right to equality and non-discrimination is protected by articles 2, 16 and 26 of the ICCPR and article 2 of the ICESCR. It is further protected with respect to persons with disabilities by Article 2 of the CRPD. The right applies to the distribution of welfare benefits or social security.[201]

1.371         'Discrimination' under international law encompasses differential treatment on the basis of a protected attribute, such as disability, as well as treatment having a disproportionate impact on people with a protected attribute.^[202] However, differential treatment based on a protected attribute may be permissible where it is a 'special measure', or in the words of the CRPD, a specific measure 'necessary to accelerate or achieve the de facto equality of persons with disabilities'.[203]

1.372         As the proposed schedule extends the exemption from the Disability Discrimination Act 1992 to two additional acts and legislative instruments, the measure engages and limits the right to equality and non-discrimination.

1.373         In relation to the purpose of the measure, the statement of compatibility states that:

This exemption from the Disability Discrimination Act is designed to ensure that social security pensions, allowances and benefits, including for people with disability, can be appropriately targeted according to the purposes of the payments.... Payments under social security law are made to eligible people on the basis of a variety of factors such as their health, disability, age, income and asset levels. This ensures that Australia’s social security system is targeted based on people’s circumstances and need and constitutes legitimate differential treatment.[204]

1.374         It should be noted that section 45 of the Disability Discrimination Act 1992 already exempts special measures 'designed to assist people who have a disability to obtain greater equality of opportunity or provide them with benefits to meet their special needs'. An exemption therefore is not required in order to pay benefits to people with disabilities, but would be required for measures which negatively impact people with a disability, such as reducing or suspending payments to those who fail to meet mutual obligation requirements due to their disability where that disability is a drug or alcohol dependency.

1.375         It is unclear from the limited information provided in the statement of compatibility as to why such a broad exemption is required for all social security laws, given section 45 of the Disability Discrimination Act.

Committee comment

1.376        The committee therefore seeks further information from the minister as to how the broad exemption of all social security law is permissible under international law, in particular why such an exemption is required in view of section 45 of the Disability Discrimination Act.

Advice only

1.377         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.

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Amendment Determination 2017 [F2017L00659]

Purpose	Amends tables relating to the assessment of work-related impairment for the Disability Support Pension, to eliminate Table 6 – Functioning Related to Alcohol, Drug & Other Substance Use
Portfolio	Social Services
Authorising legislation	Social Security Act 1991, subsection 26(1)
Disallowance	This regulation was disallowed on 21 June 2017
Rights	Social security, non-discrimination, disability (see Appendix 2)
Status	Advice only

Qualification for disability support pension

1.378         In order to qualify for the Disability Support Pension (DSP), a person must, in addition to other requirements, have a physical, intellectual or psychiatric impairment assessed as attracting an impairment rating of 20 points or more under the tables for the assessment of work-related impairment (impairment tables). In order for the Impairment Tables to apply, the person must have a medical condition and resulting impairment that are both considered as permanent for DSP purposes. There are a number of tables tailored to different functions such as mental health function, hearing, visual function, continence and spinal function.[205]

1.379         Table 6 is for functioning relating to alcohol, drug and other substance abuse for people who have 'current, continuing alcohol, drug or other harmful substance use disorders and those in active treatment' who have a 'permanent condition resulting in functional impairment'.[206] The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Amendment Determination 2017 [F2017L00659] (the measure) sought to repeal Table 6 and rely on the remaining tables to assess functional impairment.[207] The effect of removing Table 6 is to restrict qualification for the Disability Support Pension.

Compatibility of the measure with human rights

1.380         By restricting qualification for the DSP, the measure engages and may limit the right to social security, the right to an adequate standard of living, the right to equality and non-discrimination and the rights of persons with disabilities. These rights may be subject to permissible limitations providing they pursue a legitimate objective, are rationally connected to that objective and are a proportionate means of achieving that objective.

1.381         The statement of compatibility states that the removal of Table 6 will ensure 'no one will qualify for the DSP on the basis of substance misuse without demonstrating a permanent functional impairment' and therefore 'maintain the integrity of, and public confidence in, the social security system' and encourage people with substance abuse issues to manage or overcome their issues.[208]

1.382         Maintaining the integrity of and confidence in the social security system and encouraging those with substance abuse issues to manage or overcome their issues is capable of constituting a legitimate objective under international human rights law. However, it is not evident from the statement of compatibility that the measure is effective to achieve (that is, rationally connected to) and proportionate to that objective. 

1.383         In relation to rational connection, Table 6 already requires that a person have a permanent condition resulting in functional impairment, and that the condition be fully treated, stabilised and likely to persist for the next two years. It is therefore unclear how removing Table 6 will encourage affected persons, who have already undergone some treatment or are in active treatment, to 'manage or overcome their issues'.

1.384         The statement of compatibility further states that a person with a substance use disorder may still qualify for DSP if their impairment is able to be assessed under the remaining tables, pointing to specifically the Mental Health table.[209] It is noted that the Table 6 appears to have been initially created on the basis that there was a perceived need for a separate table focusing on the functional impact of alcohol, drug or other substance use.^[210] It is further noted that certain impacts inherent in the dependency and addiction such as compulsion and time spent to procure and consume alcohol, drugs or other substances are not directly covered by other function tables, but are inherent to the disorder.

1.385         The statement of compatibility also points to the availability of other income support such as Newstart Allowance. However, this form of social security is at a lower rate of pay, is aimed at supporting people into employment and is subject to activity tests and mutual obligation requirements. The requirement of achieving 20 points under Table 6 means that these people have 'severe functional impact' and must meet most of a list of indicators including neglecting personal hygiene and health, spending most of their time using or procuring substances and/or recovering from their effects, having a physical or cognitive impairment resulting from the use, having only brief remission, and being frequently absent from work and other activities.[211] It is not clear that those who have a permanent disorder that is fully stabilised, treated and resulting in severe functional impairment will be able to meet mutual obligation requirements, and therefore have meaningful access to income support, nor have a reasonable chance at securing and maintaining employment.

Committee comment

1.386        The committee draws the human rights implications of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Amendment Determination 2017 to the minister and parliament.

1.387        The committee notes that the determination was disallowed on 21 June 2017.

Bills not raising human rights concerns

1.388         Of the bills introduced into the Parliament between 8 and 10 August, the following did not raise human rights concerns (this may be because the bill does not engage or promotes human rights, and/or permissibly limits human rights):

• Australian Broadcasting Corporation Amendment (Regional Australia) Bill 2017;
• Education Services for Overseas Students Amendment Bill 2017;
• Education Services for Overseas Students (TPS Levies) Amendment Bill 2017;
• International Monetary Agreements Amendment (New Arrangements to Borrow) Bill 2017;
• Product Emissions Standards Bill 2017;
• Product Emissions Standards (Consequential Provisions) Bill 2017;
• Product Emissions Standards (Customs) Charges Bill 2017;
• Product Emissions Standards (Excise) Charges Bill 2017; and
• Social Security Amendment (Caring for People on Newstart) Bill 2017.

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