Concluded matters
2.1
This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
2.2
Correspondence relating to these matters is included at Appendix 3.
Australian Institute of Health and Welfare Amendment
Bill 2018
Purpose |
Amends the Australian
Institute of Health and Welfare Act 1987 to replace the
representative-based structure of the Australian Institute of Health and
Welfare; and removes the requirement for the Institute to seek agreement from
the Australian Bureau of Statistics for the collection of health and
welfare-related information and statistics |
Portfolio |
Health |
Introduced |
House of Representatives,
28 March 2018 |
Rights |
Privacy (see Appendix 2) |
Previous reports |
4 of 2018 |
Status |
Concluded examination |
Background
2.3
The committee first reported on the bill in its Report 4 of 2018,
and requested a response from the Minister for Health by 23 May 2018.[1]
2.4
The minister's response to the committee's inquiries was received on
24 May 2018. The response is discussed below and is reproduced in full at Appendix 3.
Collection of health and welfare-related information and statistics
2.5
Items 13 and 14 of the bill remove the requirement in the Australian
Institute of Health and Welfare Act 1987 (AIHW Act) that the Australian
Institute of Health and Welfare (the Institute) seeks the agreement of the
Australian Bureau of Statistics (ABS) to collect health and welfare-related
information and statistics. Instead, the bill would allow the Institute to
collect health-related and welfare-related information and statistics, in
consultation with the ABS if necessary, whether by the Institute itself or in
association with other bodies or persons.
Compatibility of the measure with
the right to privacy
2.6
Article 17 of the International Covenant on Civil and Political
Rights (ICCPR) prohibits arbitrary or unlawful interferences with an
individual's privacy. The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information,
particularly the collection, storing, use and sharing of such information.
2.7
The initial human rights analysis stated that it was unclear from the
statement of compatibility whether the collection of health-related and
welfare-related information and statistics would include personal information.
The definition of 'health-related information and statistics' and
'welfare-related information and statistics' are defined in the AIHW Act to
mean 'information and statistics collected and produced from' data relevant to
health or health services and from data relevant to the provision of welfare
services respectively. This appears to be broad enough to include personal
information. The privacy policy of the Australian Institute of Health and
Welfare also indicates that personal information may be collected as part of
its statistics and information collecting mandate.[2] Therefore, the collection (and subsequent use) of health-related information
and welfare-related information by the Institute or the Institute in
association with other bodies or persons would appear to engage and limit the
right to privacy.
2.8
Limitations on the right to privacy will be permissible where they are
prescribed by law and are not arbitrary, they pursue a legitimate objective,
are rationally connected to (that is, effective to achieve) that objective and
are a proportionate means of achieving that objective. In order to be
proportionate, the limitation needs to be sufficiently circumscribed to ensure
that it is only as extensive as is strictly necessary to achieve its objective.
This includes having adequate and effective safeguards to ensure the limitation
is no more extensive than is strictly necessary to achieve its objective.
However, as noted in the initial analysis, the statement of compatibility does
not acknowledge the limitation on the right to privacy and merely states that
the bill 'does not engage any of the applicable rights or freedoms'.
Accordingly, no assessment was provided as to whether the limitation on the
right to privacy is permissible. The statement of compatibility therefore does
not meet the standards outlined in the committee's Guidance Note 1.
2.9
The committee therefore sought
the advice of the minister as to:
-
the extent to which
'health-related information and statistics' and 'welfare-related information
and statistics' includes personal information;
-
whether the measure is 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
proportionate to the stated objective (including the extent of interference
with the right to privacy, whether there are adequate and effective safeguards,
who can collect information and who can access information).
Minister's response
2.10
The minister's response states that the collection of personal
information for statistical purposes is to support the Institute's core
functions. The minister explains the importance of such information in this
context:
...collect[ing] for statistical purposes to support the
development of an evidence base across the health, welfare and housing sectors.
Specifically, the Institute collects personal information for survey purposes,
to maintain health and welfare data sets, to maintain national registers and to
undertake data linkage activities for health and medical research. The
provision of such information is critical to enhance the quality and usefulness
of its reports and publications, noting that the Institute is responsible for
the production of over 180 reports covering subject areas; such as health and
welfare expenditure, hospitals, disease and injury, mental health, ageing,
homelessness, disability and child protection.
2.11
These purposes for which the Institute collects personal information are
likely to be legitimate for the purposes of human rights law. The minister's
response describes the change to remove the requirement to seek agreement from
the ABS to collect health-related information and statistics and
welfare-related information and statistics as one which would 'provide greater
autonomy' to the Institute to collect data relating to these core functions.
This would appear to be rationally connected to the legitimate objective.
2.12
In relation to the proportionality of the proposed measure, the
minister's response first explains that the Institute is required to comply
with the requirements of the Privacy Act 1988 (the Privacy Act). In
addition, the minister's response outlines the following safeguards relating to
the protection of personal information:
Furthermore, access to personal information is restricted by
confidentiality provisions under Section 29 of the AIHW Act. Access to personal
information held by the Institute is restricted to Institute staff, to staff of
other bodies contracted to undertake specific functions on behalf of the
Institute and to anyone outside the Institute with the approval of the AIHW
Ethics Committee.
In addition, section 29 of the AIHW Act, prohibits
individuals who acquire information, either arising from their employment or
doing any act or thing under an arrangement with the Institute, from disclosing
(or making a record of) information concerning a person where the disclosure is
not made for the purposes of the AIHW Act. It also prevents individuals in
receipt of information acquired under the AIHW Act from being required to
divulge or communicate that information to a court.
Section 29 also provides criminal penalties for the
unauthorised disclosure of personal information where it is not made for the
purpose of the AIHW Act. Fines of up to $2,000 or imprisonment for 12 months,
or both, apply.
The AIHW Ethics Committee (established under section 16 of
the AIHW Act) is responsible for making decisions on the ethical acceptability
of proposals that relate to the Institute's activities and Institute-assisted
activities (activities engaged in by bodies or persons, other than the
Institute). These proposals may include identifiable data (i.e. data that
contains personal information) and the AIHW Ethics Committee can impose
conditions on the release of such data as it deems appropriate. Researchers are
required to complete an Undertaking of Confidentiality should they be provided
with access to personal information by the AIHW Ethics Committee.
These legislative provisions are backed by internal policies
and procedures at the Institute to protect personal information collected by
the Institute. This includes information security and privacy (technical,
physical and personnel aspects), data custody, data linkage protocols, data
confidentialisation techniques and the release of statistical information.
Institute staff and contractors are required to sign confidentiality deeds
before being granted access to data.
The Institute also has measures in place to ensure the safe
and secure storage of personal information. Electronic and paper records
containing personal information are stored in accordance with the Australian
Government's Protective Security Policy Framework and record management
practices comply with the Australian Government requirements as specified in the Archives Act 1983. Physical security policies also provide additional
protections and are in place for regulating access to, and the storage of,
linked data sets.
2.13
Having regard to the safeguards to protect personal information
identified in the minister's response, it is likely that the measure will be a
proportionate limitation on the right to privacy.
Committee response
2.14
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.15
In light of the further information provided by the minister, the
committee considers that the measure is likely to be compatible with the right
to privacy.
Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018
Purpose |
Makes a range of amendments
including to the Migration Act 1958 (the
Migration Act) to provide that when an unlawful non-citizen is in the process
of being removed to another country under section 198 and the removal is
aborted then the person will be taken to have been continuously in the
migration zone for the purposes of the Migration Act |
Portfolio |
Home Affairs |
Introduced |
House of Representatives,
28 March 2018 |
Rights |
Liberty; non-refoulement;
effective remedy (see Appendix 2) |
Previous reports |
4 of 2018 |
Status |
Concluded examination |
Background
2.16
The committee first reported on the bill in its Report 4 of 2018,
and requested a response from the Minister for Home Affairs by 23 May 2018.[3]
2.17
A response from the Assistant Minister for Home Affairs was received
on
30 May 2018. The response is discussed below and is reproduced in full at Appendix 3.
Expansion of visa bar
2.18
Currently, section 48A of the Migration Act applies to bar a person who
is a non-citizen from applying for particular visas where they have been
removed or deported from Australia under section 198 to another country but
have been refused entry by that country and so are returned to Australia.
2.19
The proposed amendments to sections 42(2A) and 48A in the bill would
expand the circumstances in which this visa bar applies so that it will apply
where:
- an attempt to remove the person was made under section 198 but
not completed; or
- the person is removed under section 198 but does not enter the
destination country.
2.20
These proposed amendments were previously introduced in the Migration
and Maritime Powers Amendment Bill (No. 1) 2015. That bill lapsed on the
prorogation of the 44th parliament.[4] The committee considered the human rights compatibility of these measures in
its Thirtieth Report of the 44th Parliament and Thirty-fourth
report of the 44th Parliament.[5]
Compatibility of the measure with
the right to liberty
2.21
The right to liberty includes the right not to be unlawfully or
arbitrarily detained.[6] The effect of this measure is that a broader class of person will be barred
from applying for visas and will therefore be subject to mandatory immigration
detention prior to removal or deportation.[7] The detention of a non-citizen pending deportation will generally not
constitute arbitrary detention, as it is permissible to detain a person for a
reasonable period of time in these circumstances. However, detention may become
arbitrary in the context of mandatory detention and the expanded visa bar,
where individual circumstances are not taken into account, and a person may be
subject to a significant length of detention.[8] The initial human rights analysis stated that there appears to be a risk in
relation to the current measure that if a person is barred from applying, for
example, for a new protection visa, then they could be subject to immigration
detention for an extended period given that an attempt to deport the person has
already failed.
2.22
The statement of compatibility acknowledges that the measure engages the
right to be free from arbitrary detention but argues that the detention is
neither unlawful nor arbitrary as it is for 'a legitimate purpose'.[9] In other words, the limitation on the right to liberty is permissible as it
supports a legitimate objective, is rationally connected to that objective, and
is a proportionate way to achieve that objective. The statement of
compatibility explains the context of the measure and states that:
While the proposed amendments will limit an unlawful
non-citizen's opportunity to apply for a visa (through continuous application
of statutory bars in ss48 and 48A), their re-detention will continue to be for
the legitimate purpose of completing their removal from Australia under section
198 of the Migration Act as soon as it becomes reasonably practicable to do so.
The removal of unlawful non-citizens under section 198 is mandated by the law
and is an integral part of maintaining the integrity of Australia's migration
system.[10]
2.23
In relation to circumstances where a person may be subject to prolonged
immigration detention, the statement of compatibility points to departmental policies
and procedures as a relevant safeguard:
Where removal cannot be accomplished within reasonable
timeframes, in line with established detention policy and procedures, the
Department will review the detention decision and consider less restrictive forms
of detention such as residence determination or grant of a Bridging visa E, as
appropriate in circumstances of the case. [11]
2.24
It is significant that the department has policies and procedures in
place to review detention and grant visas in appropriate circumstances so as to
minimise the risk of arbitrary detention. However, it was noted that
discretionary or administrative safeguards alone may be insufficient for the
purpose of international human rights law. This is because administrative and
discretionary safeguards are less stringent than the protection of statutory
processes and can be amended or removed at any time. Indeed, as a matter of
Australian law, there are no safeguards to protect a person from being subject
to prolonged or even indefinite detention due to an inability to deport the
person. In this respect, the United Nations Human Rights Committee (UNHRC) has
made clear that '[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'.[12]
2.25
The risk of arbitrariness may be exacerbated in circumstances where
there may be limited effective means to challenge such detention. There is a
consequential risk that the immigration detention is not reasonable, necessary
and proportionate in the individual case as required in order to be a
permissible limitation on the right to liberty.
2.26
As noted above, the detention of a non-citizen for a reasonable period
of time pending deportation is likely to pursue a legitimate objective and be
rationally connected to this objective. However, beyond stating that the
expansion of the visa bar will 'correct the unintended operation of the law
that leads to unlawful non-citizens...being treated differently',[13] it was unclear from the information provided in the statement of compatibility
why the visa bar is necessary. In this respect, it was noted that current
sections 48 and 48A themselves raise concerns in relation to human rights such
that issues of consistency do not address or overcome such underlying concerns.[14] That is, given the context of mandatory immigration detention, there was a
question as to whether the application of the visa bar is the least rights
restrictive approach.
2.27
The committee therefore requested the advice of the minister as to the
compatibility of the measure with the right to liberty, including:
-
why it is necessary to apply a visa bar to those non-citizens
which the government has attempted to remove from Australia under section 198
of the Migration Act;
-
whether there are less rights restrictive approaches than the
application of the visa bar; and
-
whether there are adequate and effective safeguards in place to
ensure that a person is not subject to arbitrary detention (including the
availability of periodic review of whether detention is reasonable, necessary
and proportionate in the individual case, and the circumstances in which a
person may apply for particular classes of visas or the visa bar may be
lifted).
Assistant minister's response
2.28
The assistant minister's response provides the following information on
the measure:
The Migration Act 1958 (the Act) currently imposes
bars on all non-citizens preventing them from lodging further protection visa
applications in circumstances where a non-citizen has previously had a
protection visa cancelled or an application for a protection visa refused. These
mechanisms prevent non-citizens, either lawful or unlawful, from lodging
ongoing visa applications to inappropriately prolong their stay in Australia
and delay their departure.
Currently, where a non-citizen is removed from Australia, but
is refused entry into the destination country and the non-citizen is returned
to Australia, visa bars continue to apply. However, where the Department of
Home Affairs (the Department) has attempted to remove a non-citizen but the
removal from Australia cannot be completed, for a reason other than refusal in
the destination country, visa bars no longer apply on return to Australia.
The amendments are necessary to ensure that any non-citizen
who the Department attempts to remove, but is then returned to Australia,
irrespective of the circumstances, is treated in the same way. These
arrangements would treat non-citizens as if they had never departed Australia
(i.e. that they were continuously in the Migration Zone) and restore them to
their previous immigration status. The visa bars are no more advantageous or
disadvantageous than if the Department had not attempted to remove the
non-citizen.
Visa bars are the least restrictive approach within the Act
to achieve the Department's legislative objectives and ensure that the Department
is able to re-facilitate the removal of non-citizens from Australia as soon as
reasonably practicable.
2.29
In relation to the availability of relevant safeguards, the assistant
minister's response states:
The Department has safeguards to ensure that non-citizens are
not subject to arbitrary detention. The Detention Review Committee conducts
formal review of efforts to progress all non-citizens detained in immigration
held detention towards status resolution outcomes. The committee ensures that:
-
where a non-citizen is managed in
a held detention environment, that the detention remains lawful and reasonable;
-
the location of the person,
whether held detention, specialised detention, community detention or in the
community on a Bridging visa, remains appropriate to the non-citizen's
situation and conducive to status resolution;
-
where a non-citizen is managed in
the community, either on a residence determination or through a Bridging visa,
community risk is regularly and appropriately considered; and
-
regardless of the location, the
non-citizen's status resolution progresses and the appropriate departmental
services are in place to support an outcome.
The Minister has a personal, non-compellable power to lift a
visa bar or grant a visa, if he thinks it is in the public interest to do so.
Generally, the Department on behalf of a person makes a request for the
Minister to use their public interest powers. However, a non-citizen or a
non-citizen's authorised representative can request in writing for the Minister
to exercise his public interest power. Requests are referred to the Minister
where they meet the Minister's issued guidelines under section 48B of the Act.
2.30
The minister's identification of policy safeguards is relevant to the
proportionality of the limitation on the right to liberty. However, as the
committee has previously stated in relation to Australia's mandatory
immigration detention system and statutory bar on visa applications, the
internal review mechanisms identified by the minister, while important, do not
meet the standard required under international human rights law.[15] This is because none of these mechanisms are set out in statute and no person
in immigration detention has any legal entitlement to require those reviews to
occur, such as by seeking administrative or judicial review. The other
mechanisms set out in the minister's response are entirely at the discretion of
the minister personally. The UN Human Rights Committee and the Working Group on
Arbitrary Detention have on many occasions raised concerns as to Australia's
application of mandatory immigration detention and the impossibility of
challenging such detention, and has found such detention to be in breach of
Article 9(1) of the ICCPR.[16] By extending the visa bar further and accordingly extending the scope of
non-citizens who may be subsequently liable for detention under the Migration
Act, the measure is consequently also incompatible with the right to liberty.
Committee response
2.31
The committee thanks the assistant minister for his response and
has concluded its examination of this issue.
2.32
In its Thirty-fourth report of the 44th Parliament, the committee considered that the statutory bar on visa claims in the event
of unsuccessful removal from Australia, in the context of Australia's mandatory
immigration detention policy, was incompatible with Article 9 of the ICCPR.[17]
2.33
As the measures in the bill seek to reintroduce this statutory
bar in identical terms, and having regard to relevant international
jurisprudence, the committee considers that the proposed statutory bar on visa
claims in the event of unsuccessful removal from Australia is incompatible with
Article 9 of the ICCPR.
Compatibility of the measure with
the right to non-refoulement and the right to an effective remedy
2.34
Australia has non-refoulement obligations under the Refugee Convention
for refugees, and under both the International Covenant on Civil and Political
Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) for all, including people who are found
not to be refugees.[18] 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.[19] Non-refoulement obligations
are absolute and may not be subject to any limitations.
2.35
Independent, effective and impartial review by a court or tribunal of
decisions to deport or remove a person, including merits review in the
Australian context, is integral to complying with non-refoulement obligations.[20]
2.36
The initial analysis stated that the effect of expanding the visa bar
may be that a person is unable to apply for a new protection visa and
accordingly the person may be subject to removal from Australia.[21] The statement of compatibility acknowledges that the obligation of
non-refoulement is absolute and may be engaged by the measure. However, it
argues that the measure will not breach Australia's non-refoulement obligations
as:
...the obligations - if applicable - will have been assessed
prior to the non-citizen's removal from Australia. A pre-removal clearance
check is undertaken for all involuntary removals of unlawful non-citizens to
ensure the proposed removal would not breach Australia's non-refoulement
obligations. Where this check identifies outstanding protection claims, removal
will not proceed until these claims have been fully assessed. An individual
will not be removed from Australia in breach of non-refoulement obligations.[22]
2.37
However, as stated in the committee's previous human rights assessments,
administrative and discretionary safeguards are less stringent than the
protection of statutory processes, and are insufficient in and of themselves to
satisfy the standards of 'independent, effective and impartial' review required
to comply with Australia's non-refoulement obligations.
2.38
Under section 198 of the Migration Act an immigration officer is
required 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
independent, effective and impartial review of the decision as to whether
removal is consistent with Australia's non-refoulement obligations.[23] Accordingly, there may be a risk that a person who is unable to apply for a new
protection visa may be deported notwithstanding that Australia owes them
protection obligations. In this respect, it was also unclear from the statement
of compatibility as to whether there are circumstances in which the visa bar
will be lifted, including where new information has come to light which
supports the person's claim for protection.
2.39
The committee therefore sought the further advice of the minister as to
the compatibility of the expansion of the visa bar with the obligation of
non-refoulement (including whether there are mechanisms in place to lift the
visa bar where new information has come to light which supports a person's
claim for protection).
Assistant minister's response
2.40
The assistant minister provides the following information in response to
the committee's inquiries:
The Australian Government takes its international obligations
seriously. Australia is party to several treaties that contain both explicit
and implicit non-refoulement obligations not to forcibly remove a non-citizen
to a place where they may be subjected to persecution or particular forms of
harm. The Department does not seek to resile from or limit Australia's
non-refoulement obligations under Article 6 and 7 of the ICCPR and Article 3(1)
of the Convention Against Torture.
A non-citizen will [not be] removed from Australia in breach
of our non-refoulement obligations.
The pre-removal clearance process is used to review a
non-citizen's circumstances and relevant country information to identify
whether there is any risk that the proposed removal would breach Australia's
international non-refoulement obligations. This process is also used to
identify whether there are any protection claims that have not already been
assessed by the Department which raise protection issues and whether new
information, such as country information, suggests that previously assessed
claims may now raise a risk.
Additionally, the Minister has a personal, non-compellable
power to lift a visa bar or grant a visa, if he thinks it is in the public
interest to do so. This may include where new information has been identified
to support a person's protection claim, allowing new protection claims to be
assessed by the Department. The Minister has issued guidelines, to outline the
circumstances in which he may consider exercising his public interest power
under section 48B of the Act and to inform departmental officers about when and
how to refer cases. These guidelines are consistent with the intention of the
visa bar and cover circumstances where there is new information or significant
changes in circumstances, which relates to Australia's non-refoulement
obligations.
The form of administrative arrangements in place to support
Australia meeting its non-refoulement obligations is a matter for the
Government. It is the Government's position that there are sufficient
procedural safeguards in place for ensuring all non-citizens are afforded an
opportunity to have their claims assessed.
2.41
Notwithstanding the minister's identification that the department does
not seek to resile from or limit Australia's non-refoulement obligations, it is
noted that section 197C of the Migration Act provides that, for the purposes of
removing a person from Australia under section 198, 'it is irrelevant whether
Australia has non-refoulement obligations in respect of an unlawful
non-citizen' and that the duty to remove a person as soon as practicable arises
irrespective of whether there has been an assessment of Australia's
non-refoulement obligations.
2.42
As noted in the initial analysis, UN human rights jurisprudence also
makes clear that the provision of effective and impartial review of
non-refoulement decisions by a court or tribunal is integral to complying with
the obligation of non-refoulement under the ICCPR and CAT. Further, the
committee's long-standing view is that the minister's non-compellable powers
are an insufficient protection against unlawful refoulement and that
international law is clear that administrative arrangements are insufficient to
protect against unlawful refoulement.[24] This is because administrative and discretionary safeguards are less stringent
than the protection of statutory processes, and are insufficient in and of
themselves to satisfy the standards of 'independent, effective and impartial'
review.[25]
2.43
The mechanisms set out in the minister's response are entirely
administrative and there is no legal protection against non-refoulement in the
form of a reviewable decision. Consistent with the committee's longstanding
position, the absence of an effective and impartial review of non-refoulement
decisions is incompatible with Australia's non-refoulement obligations under
international law.
Committee response
2.44
The committee thanks the assistant minister for his response and
has concluded its examination of this issue.
2.45
In its Thirty-fourth report of the 44th Parliament, the committee considered that the statutory bar on visa claims in the event
of unsuccessful removal from Australia failed to provide for effective and
impartial review of non-refoulement decisions, and accordingly the measure was
incompatible with Australia's non-refoulement obligations under international
law.
2.46
As the measures in the bill seek to reintroduce this statutory
bar in identical terms, the committee considers that the proposed statutory bar
on visa claims in the event of unsuccessful removal from Australia is
incompatible with Australia's non-refoulement obligations under international
law.
Obligation to consider the best
interests of the child
2.47
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 are a primary consideration.[26] The statement of compatibility acknowledges that the expansion of the visa bar
engages the rights of children as it would also apply to them.[27] The statement of compatibility, however, argues that the measure is compatible
with the obligation to consider the best interests of the child as:
Under policy, all actions taken by the Department which
involve children involve an assessment of the child’s best interests as a
primary consideration. However, although the best interests of the child is a
primary consideration, such considerations may be outweighed by other factors,
such as the need to maintain the integrity of Australia's migration system and
the fact that those subject to removal have no entitlement to remain lawfully
in Australia. Consequently, it may not be in a child’s best interests to be
removed from Australia, but in certain circumstances, this will need to be
balanced against other primary considerations.
...Where the best interest of the child overwhelmingly
outweighs all other relevant considerations in relation to a removal, the case
may be referred to the Minister for consideration to exercise his
non-compellable powers to grant a visa.[28]
2.48
However, the initial analysis stated that while the department and the
minister may consider the best interests of the child as a matter of policy and
discretion, the proposed expanded visa bar will still generally apply to
children. This may be the case regardless of whether the department or the
minister has, in fact, substantively considered the best interests of the child
in the context of the operation of the visa bar. Indeed, the statement of
compatibility states that the best interests of the child is to be 'balanced
against other primary considerations'. Further, it appeared from the
information provided that the matter may only be referred to the minister for
intervention where the best interests of the child 'overwhelmingly outweighs'
all other considerations. If this were the case, it would raise particular
concerns. It was noted in this respect that the UN Committee on the Rights of
the Child has explained that:
...the expression "primary consideration" means that
the child's best interests may not be considered on the same level as all other
considerations. This strong position is justified by the special situation of
the child...'[29]
2.49
It follows that it would be inconsistent with Australia's obligations to
treat other considerations as of equal weight to the obligation to consider the
best interests of the child. In this context, as a matter of international
human rights law, it did not appear that the importance of 'maintain[ing] the
integrity of Australia's migration system' should be given equal or greater
weight than the obligation to consider the best interests of the child. Other
than current departmental policies and the potential exercise of discretion by
the minister (which may not be sufficient for human rights purposes) the
statement of compatibility does not provide any further information as to any
procedural safeguards to ensure that the best interests of the child are given
due consideration.
2.50
As such, the initial analysis stated that expansion of the visa bar,
including its impact on the right to liberty and non-refoulement obligations,
engages and may limit the obligation to consider the best interests of the
child. 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. The statement of compatibility
does not expressly address these criteria in relation to this obligation.
Accordingly, without further information it was not possible to conclude that
the measure is compatible with the obligation to consider the best interests of
the child.
2.51
The committee therefore sought the advice of the minister as to:
-
the relative weight which will be given to the obligation to
consider the best interests of the child in departmental policies and
procedures in the context of the proposed measure;
-
what is the threshold for intervention on the basis that the
measure would not be in the child's best interests;
-
whether there are any procedural safeguards in place to ensure
that the obligation to consider the best interests of the child is given due consideration;
-
whether the measure is 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.
Assistant minister's response
2.52
In response to the committee's inquiries, the assistant minister
provides the following information:
In planning the removal of a child, the best interests of the
minor must be taken into consideration as 'a' but not 'the' only consideration. As such, other primary considerations may outweigh the best
interests of the child in certain circumstances.
In considering the best interests of the child, during the
removal planning, the Department considers the age, mental capacity, maturity,
health, welfare and special needs of the minor. The views of the minor is
another consideration that can be given due weight in the removal process and
in accordance with the maturity of the minor. The amendments to the visa bars
will not change these processes or considerations.
The Department also carefully considers the placement of
children and their families when facilitating their removal. The Department
takes steps to minimise the impact of detention on minors by considering
alternatives to held detention such as alternative places of detention,
immigration residential housing or immigration transit accommodation. This
approach is consistent with paragraph 3 of the Department's Detention Values ...
which prescribe that children and, where possible, their families will not be
detained in an immigration detention facility. This is reflected in domestic
legislation through s 4AA of the Act, which provides that the Parliament
affirms as a principle that a minor shall only be detained as a measure of last
resort.
The visa bars treat all non-citizens, including children, as
if they had never departed Australia restoring them to their previous
immigration status. The visa bars are no more advantageous or disadvantageous
than if the non-citizen had not been attempted to be removed from Australia.
They achieve the Department status resolution and removal objectives of
managing and maintaining the integrity of the migration programme and are a
reasonable and proportionate mechanism for consistently managing all unlawful
non-citizens including those that the Department must re-progress to remove
from Australia.
The Minister maintains his personal and non-compellable power
to lift a visa bar or grant a visa, to a non-citizen, including children, if he
thinks it is in the public interest to do so.
2.53
A copy of the 'Detention Values' document was attached to the minister's
response (and is set out in full at appendix 3).
2.54
In relation to the minister's response that the best interests of the
child is 'a', but not 'the only' consideration, such that other primary
considerations may outweigh the best interests of the child in certain
circumstances, as noted in the initial analysis, the UN Committee on the Rights
of the Child has made clear that the child's best interests may not be
considered on the same level as all other considerations.[30]
2.55
As to the considerations noted by the minister in the Detention Values
policy document and section 4AA of the Migration Act, these matters may assist
in the proportionality of the limitation as it applies to the detention of
children but it does not assist in assessing the impact of the expanded visa
bar on Australia's non-refoulement obligations. In any event, while section 4AA
affirms the principle that a minor shall only be detained as a measure of last
resort, in light of the minister's identification that other primary
considerations might outweigh the best interests of the child, it is not clear
that this statutory provision would of itself be sufficient. In relation to the
matters set out in the Detention Values policy statement, as discussed above,
policy safeguards are less reliable than the protection of safeguards set out
in legislation and are not sufficient from the perspective of international
human rights law. The minister's personal and non-compellable power is also not
a sufficient safeguard, for the reasons discussed above.
Committee response
2.56
The committee thanks the assistant minister for his response and
has concluded its examination of this issue.
2.57
In its Thirty-fourth report of the 44th Parliament, the committee considered that the statutory bar on visa claims in the event
of unsuccessful removal from Australia was incompatible with Australia's
obligations under the Convention on the Rights of the Child to consider the
best interests of the child.
2.58
The measures in the bill seek to reintroduce this statutory bar
in identical terms. In view of the further information provided by the minister
and the preceding analysis, the committee considers the measures are likely to
be incompatible with Australia's obligations under the Convention on the Rights
of the Child to consider the best interests of the child.
National Consumer Credit Protection Amendment (Mandatory Comprehensive
Credit Reporting) Bill 2018
Purpose |
Amends the National
Consumer Credit Protection Act 2009 to introduce a mandatory
comprehensive credit reporting regime; expands ASIC's powers to monitor
compliance with the mandatory regime; imposes additional obligations as to
where data held by a credit reporting body must be stored |
Portfolio |
Treasury |
Introduced |
House of Representatives,
28 March 2018 |
Rights |
Privacy (see Appendix 2) |
Previous reports |
4 of 2018 |
Status |
Concluded examination |
Background
2.59
The committee first reported on the bill in its Report 4 of 2018,
and requested a response from the Treasurer by 23 May 2018.[31]
2.60
The Treasurer's response to the committee's inquiries was received on
24 May 2018. The response is discussed below and is reproduced in full at Appendix 3.
Background
2.61
The Privacy Amendment (Enhancing Privacy Protection) Act 2012 (the
2012 Act) amended the Privacy Act 1988 (Privacy Act) to establish
a framework under which credit providers and credit reporting bodies could
collect, use and disclose comprehensive credit information. This framework came
into effect in March 2014.[32] The 2012 Act was introduced to parliament shortly prior to the establishment of
the committee, which means it was not subject to a human rights compatibility
assessment in accordance with the terms of the Human Rights (Parliamentary
Scrutiny) Act 2011.[33]
2.62
Prior to the framework established by the 2012 Act, the credit reporting
system limited the information that could be collected, used and disclosed by
credit providers and credit reporting bodies to 'negative information' about an
individual. 'Negative information' includes identification information (such as
a person's name and address), default history and any bankruptcy information
about that person.[34]
2.63
The 2012 Act expanded the kind of information that was permitted in the
credit reporting system. The expanded information (referred to as
'comprehensive credit information') that was able to be collected, used and
disclosed included repayment performance history of a person, the type of
credit a person has, and the maximum amount of credit available to a person.
The 2012 Act permitted credit providers to disclose this information to credit
reporting bodies on a voluntary basis.
Establishment of a mandatory comprehensive credit reporting scheme
2.64
The current bill seeks to amend the Privacy Act and the National
Consumer Credit Protection Act 2009 (the NCCP Act) to make it mandatory for
large Authorised Deposit-taking Institutions (ADI) that are credit providers[35] to supply comprehensive credit information to eligible credit reporting bodies
about all of the open credit accounts held with the licensee or with other
members of the licensee's corporate group. The licensees must also supply
updated information to credit reporting bodies on an ongoing basis.
2.65
The bill further provides that the regulations may set out the
circumstances when a credit reporting body must share with credit providers
credit information received under the mandatory comprehensive credit regime.[36]
Compatibility of the measure with
the right to privacy
2.66
Article 17 of the International Covenant on Civil and Political Rights
(ICCPR) prohibits arbitrary or unlawful interferences with an individual's
privacy. The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information,
particularly the collection, storing, use and sharing of such information.
2.67
The introduction of a mandatory comprehensive credit reporting scheme
engages the right to privacy by requiring large ADIs to supply comprehensive
credit information to certain credit reporting bodies. This credit information
includes significant personal and financial information about individual bank
customers, and thus the measure limits the right to privacy. The statement of
compatibility acknowledges that the right to privacy is engaged by the bill.[37]
2.68
As noted in the initial human rights analysis, the statement of
compatibility emphasises that the mandatory comprehensive credit regime does
not, of itself, allow for the collection, use and disclosure of an individual's
credit information. This is because the framework for such collection, use and
disclosure was established by the 2012 Act. However, it was noted that by
making the scheme mandatory for large ADIs instead of the current voluntary
scheme, in practical terms the bill expands the operation of the framework
established by the 2012 Act. It is therefore necessary to assess the human
rights compatibility of the mandatory comprehensive credit regime, which also
requires considering the underlying human rights compatibility of the 2012 Act.
2.69
Limitations on the right to privacy will be permissible where they are
prescribed by law and are not arbitrary, they pursue a legitimate objective,
are rationally connected to (that is, effective to achieve) that objective and
are a proportionate means of achieving that objective.
2.70
The statement of compatibility identifies the objective of the bill by
reference to the objective of the 2012 Act, namely, 'improving the management
of personal and credit reporting information'.[38] The statement of compatibility further states:
A more comprehensive credit reporting regime allows credit
providers to better establish a consumer’s credit worthiness and lead to a more
competitive and efficient credit market. A more comprehensive regime benefits
consumers by enabling more reliable individuals to seek more competitive rates
when purchasing credit and enabling those with a historically poor credit
rating to demonstrate their credit worthiness through future consistency and
reliability.[39]
2.71
As set out in the committee's Guidance Note 1, in order to be
capable of justifying a proposed limitation on human rights, a legitimate
objective must address a pressing or substantial concern, and not simply seek
an outcome regarded as desirable or convenient. While the objectives identified
in the statement of compatibility may be capable of being legitimate objectives
for the purposes of international human rights law, further information was
required to determine whether (and if so, how) this specific measure of
mandatory credit reporting addresses a pressing or substantial concern. It was
noted in this respect that a legitimate objective must be supported by a
reasoned and evidence-based explanation. Further information as to the
legitimate objective of the measure would also assist in determining whether
the measure is rationally connected to this objective.
2.72
As to the proportionality of the measure, the statement of compatibility
notes that the bill does not alter the existing protections set out in the
Privacy Act governing the use and disclosure of credit information, and that
'the requirement to supply credit information only applies to the extent that
the disclosure is permitted under the Privacy Act'.[40] It is in this respect that the amendments to the Privacy Act introduced by the
2012 Act are particularly relevant. The statement of compatibility therefore
sets out the safeguards that were in place to protect individuals' credit
information in the 2012 Act, namely:
Greater responsibility was placed on credit reporting bodies
and credit providers to assist individuals to access, correct and resolve
complaints about their personal information. Those amendments included specific
rules to deal with pre-screening of credit offers and the freezing of access to
an individual’s personal information in cases of suspected fraud or identity
theft.
2.18 The
amendments [in the 2012 Act] also restricted access to repayment history
information to those credit providers who hold an Australian Credit Licence and
are therefore subject to responsible lending obligations.
2.19 Any
effect on privacy rights was considered proportionate and limited by the
introduction of specific safeguards, including:
-
only de-identified information can be used for the purpose of
research, and the research must be reasonably connected to the credit reporting
system, and
-
the use of credit reporting information for the purposes of
pre-screening is expressly limited to the purpose of excluding adverse credit risks
from marketing lists.[41]
2.73
These safeguards are important in determining the proportionality of the
measure. However, further information in the statement of compatibility would
have been of assistance to determine the sufficiency of the safeguards in light
of the amendments proposed in the bill, in particular: details regarding
information security between credit providers and credit reporting bodies,
details of how long credit information is retained, and further detail as to
access to review for persons who have complaints relating to the use of their
personal information.
2.74
Further, in order to be a proportionate limitation on the right to
privacy, the limitation needs to be sufficiently circumscribed to ensure that
it is only as extensive as is strictly necessary to achieve its objective. The
information that may be disclosed through comprehensive credit reporting is
potentially extensive, including a person's repayment history information and
credit limits. This information would appear to include positive repayment
performance history rather than merely any history of default.[42] The initial analysis stated that it is not clear from the statement of
compatibility whether such extensive information is necessary for determining a
consumer's credit worthiness. Given the effect of the measure would be to make
the disclosure of such information mandatory for ADIs (such that the limitation
on privacy would affect a large number of individuals), this raised questions
as to whether the limitations on the right to privacy are sufficiently
circumscribed.
2.75
It was also noted that the power to set out by regulation the
circumstances when a credit reporting body must share credit information also
appears to be very broad. Without adequate safeguards, it is possible that
leaving significant matters to be determined by regulation may result in the
regulation-making power being exercised in such a way as to be incompatible
with the right to privacy. In this respect, the statement of compatibility
states that 'these circumstances will be limited and not extend beyond those
circumstances in the Privacy Act'.[43] However, it was not clear whether the Privacy Act would constitute an effective
safeguard for the purposes of the right to privacy in the context of this
particular measure. For example, while the Privacy Act contains a range
of general safeguards it is not a complete answer to this issue because the
Privacy Act and the Australian Privacy Principles (APPs) contain a number of
exceptions to the prohibition on disclosure of personal information. This
includes permitting use or disclosure where the use or disclosure is authorised
under an Australian law, which may be broader than the scope permitted under
international human rights law.[44] Therefore, further information is required as to the operation of the specific
safeguards in the Privacy Act so as to determine whether that Act provides
effective safeguards of the right to privacy in these circumstances.
2.76
The committee therefore sought further information from the Treasurer 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
proportionate limitation on the right to privacy (including whether the
requirement to provide comprehensive credit information is sufficiently
circumscribed, and information as to the adequacy and effectiveness of
safeguards).
Treasurer's response
2.77
As to the legitimate objective of the measure, the Treasurer's response
provides more information on the underlying objective of the 2012 Act, by
reference to the explanatory memorandum to that Act:
... The introduction of comprehensive credit reporting is aimed
at providing a more balanced and accurate picture of an individual's credit
situation than currently exists, providing positive information about a
person's credit situation such as when an individual has met their credit
payments.
The introduction of more comprehensive credit reporting
allows credit providers to access an enhanced set of personal information tools
directly relevant to establishing an individual's credit worthiness. This will
allow credit providers to make a more robust assessment of credit risk, which
is expected [to] lead to lower credit default rates. More comprehensive credit
reporting is also expected to improve competition in the credit market, which
may result in reductions to the cost of credit for individuals. The amendments
will enable legitimate commercial activity, facilitating consumer lending and
transactions, and thus the participation of individuals in the economy. These
are legitimate objectives.
2.78
The Treasurer's response explains that there has been a 'first mover
problem' in relation to the voluntary scheme established by the 2012 Act, such
that 'credit providers have failed to participate in the voluntary regime'. The
Treasurer's response explains that prior to the enactment of the 2012 Act, a
number of credit providers had indicated their intention to participate in the
(voluntary) comprehensive credit regime, but this did not eventuate.
2.79
The overall objectives of comprehensive credit reporting, being to lower
credit default rates and improve competition in the credit market, are likely
to be legitimate objectives for the purposes of human rights law. In the
context of this particular measure, the pressing and substantial concern the
Treasurer has identified appears to be that the voluntary scheme does not
address these objectives. This is because the credit providers have not
participated in the scheme on a voluntary basis. On balance, and having regard
to the overall objectives of the comprehensive credit reporting scheme, the
measure is likely to pursue a legitimate objective for the purposes of
international human rights law.
2.80
The Treasurer's response also explains that mandatory comprehensive
credit reporting will be an effective means of achieving the objective of lowering
credit default rates and improving competition in the credit market, as it will
ensure that credit providers' participation in the scheme 'occurs in a more timely
and coordinated way'. Such participation is necessary for the scheme to achieve
its objectives.
2.81
In relation to the proportionality of the proposed measure, the
Treasurer's response provides the following information as to the safeguards in
the bill in relation to information security and the retention of data:
The Bill includes new security provisions to further
guarantee the security and protection of consumer information. The Bill
requires that credit reporting bodies store credit information within Australia
and, where information is stored on a cloud server, the cloud server will have
to be recognised by the Australian Systems Directorate.
These new security arrangements are in addition to the
existing protections in the Privacy Act. The Privacy Act imposes requirements
on both credit reporting bodies and credit providers to take reasonable steps
to protect credit-related information from misuse, interference and loss, and
from unauthorised access, modification or disclosure (section 20Q and section 21S
of the Privacy Act). The law also currently requires credit reporting bodies to
ensure that regular audits of credit providers are conducted by an independent
person to determine whether credit providers are taking the required actions.
The Privacy Act also already sets out the period that
information can be retained before it must be destroyed (see sections 20V to
20ZA) and includes requirements for both a credit reporting body and credit
provider to correct information including at the person's request (see sections
20S to 20U and section 21U to 21W of the Privacy Act).
While the mandatory regime will increase the volume of
information in the credit reporting system, this was the volume that was
anticipated would be in system as a result of the Privacy Amendment Act and was
contemplated when considering the impacts on an individual's privacy as part of
the development of that Act.
2.82
The Treasurer's response also provides information from the explanatory
memorandum to the 2012 Act as to safeguards that allow individuals to access
information about them that is collected and disclosed through the
comprehensive credit reporting scheme:
The [2012 Act] introduces a number of safeguards to provide
individuals with the tools to access information held about them, and correct
any inaccuracies. The [2012 Act] also makes improvements to the complaints
process, to ensure that the first organisation to receive the individual's
complaint is responsible for taking action. In moving to more comprehensive
credit reporting it has been recognised that additional safeguards around the
use of repayment history information, the fifth new category of information,
are also necessary. Repayment performance history will only be available by
credit providers who are licensees [and to lenders mortgage insurers in
relation to services they provide to credit providers] and subject to the
responsible lending obligations in the National Consumer Credit Protection Act
2009.
2.83
The response further points to the following safeguards in the 2012 Act
relating to the use of credit reporting information for the purposes of
pre-screening individuals, which continue to apply to the new mandatory scheme
introduced by the bill:
Pre-screening is subject to specific requirements, including
only the use of negative credit reporting information, the requirement for
notice at the time of collection that information may be used for this purpose,
an opt out opportunity, and a prohibition on individuals being identified for
other direct marketing. Any entity involved in pre-screening must maintain
auditable evidence to verify compliance, and which is available to individuals.
Pre-screening is also only available to credit providers who are subject to the
National Consumer Credit Protection Act 2009.
2.84
The Treasurer's response explains that these safeguards ensure that 'the
smallest possible set of data is used for the narrowest purposes to achieve the
objective of providing a functional consumer credit market'.
2.85
The Treasurer's response identifies that the approach adopted in the
2012 Act and the bill is a less rights restrictive approach than that which was
recommended by the Australian Law Reform Commission, which had recommended that
secondary uses of credit reporting information should be subject to a broad
discretion exercised by credit reporting bodies or credit providers.[45] This recommendation was not accepted by the government. The response also
explains that the approach of taking into account positive action such as
payment as well as negative information like defaults allows for 'more
effective risk assessment' than if only negative information were used.
2.86
Overall, the mandatory supply of comprehensive credit information to
credit reporting bodies represents a significant limitation on a person's right
to privacy, in light of the extensive financial information about people
(including repayment history information and credit limits) that will be able
to be disclosed. However, on balance the safeguards identified in the response
to protect people's right to privacy, including relating to the storage and
retention of the information, restrictions on who can access the comprehensive
information, and the applicable provisions of the Privacy Act, suggest that the
measure is accompanied by adequate safeguards so as to constitute a
proportionate limitation on the right to privacy.
Committee response
2.87
The committee thanks the Treasurer for his response and has
concluded its examination of this issue.
2.88
The committee considers that the mandatory comprehensive credit
scheme introduced by the bill engages and limits the right to privacy. However,
having regard to the information provided by the minister as to the safeguards
in place to protect the right to privacy, the committee considers that the
measure is likely to be a proportionate limitation on the right to privacy.
Road Vehicle Standards Bill 2018
Purpose |
Seeks to provide a new
regulatory framework for the importation and provision of road vehicles into
Australia |
Portfolio |
Infrastructure, Regional
Development and Cities |
Introduced |
7 February 2018, House of
Representatives |
Rights |
Privacy, not to incriminate
oneself, presumption of innocence (see Appendix 2) |
Previous report |
4 of 2018 |
Status |
Concluded examination |
Background
2.89
The committee first reported on the bill in its Report 4 of 2018,
and requested a response from the Minister for Urban Infrastructure and Cities by
23 May 2018.[46]
2.90
The minister's response to the committee's inquiries was received on
23 May 2018. The response is discussed below and is reproduced in full at Appendix 3.
Reverse burden offences
2.91
A number of provisions in the bill seek to introduce offences which
include offence-specific defences.[47]
Compatibility of the measures with
the right to be presumed innocent
2.92
Article 14(2) of the International Covenant on Civil and Political
Rights (ICCPR) protects the right to be presumed innocent until proven guilty
according to law. The right to be presumed innocent usually requires that the
prosecution prove each element of an offence beyond reasonable doubt.
2.93
An offence provision which requires the defendant to carry an evidential
or legal burden of proof (commonly referred to as 'a reverse burden') with
regard to the existence of some fact engages and limits the presumption of
innocence. This is because a defendant's failure to discharge the burden of
proof may permit their conviction despite reasonable doubt as to their guilt.
Similarly, a statutory exception, defence or excuse may effectively reverse the
burden of proof, such that a defendant's failure to prove the defence may
permit their conviction despite reasonable doubt. These provisions must be
considered as part of a contextual and substantive assessment of potential
limitations on the right to be presumed innocent in the context of an offence
provision.
2.94
Reverse burden offences will not necessarily be inconsistent with the
presumption of innocence provided that they are within reasonable limits, taking
into account the importance of the objective being sought, and maintain the
defendant's right to a defence. In other words, such provisions must pursue a
legitimate objective, be rationally connected to that objective and be a
proportionate means to achieve that objective.
2.95
Proposed subsections 16(3), 24(3)-(4), 32(2) and 43(2) provide
offence-specific defences or exceptions to particular proposed offences in the bill.
In doing so, the provisions reverse the evidential burden of proof, as
subsection 13.3(3) of the Criminal Code provides that a defendant who
wishes to rely on any exception, exemption, excuse, qualification or
justification bears an evidential burden in relation to that matter.
2.96
The statement of compatibility does not identify that the reverse burden
offences in the bill engage and limit the presumption of innocence. However,
the explanatory memorandum includes some information about the reverse evidential
burdens including their regulatory context.[48] In this respect, the justification for reversing the burden of proof is,
generally, that the relevant evidence will be peculiarly within the knowledge
of the defendant[49] and that the defendant would be in a 'significantly better position than the
Commonwealth'[50] to be able to present this evidence. The explanatory memorandum explains in
relation to subsection 16(3) that it:
...provides a defence for entering a non-compliant vehicle onto
the RAV if the person who entered it can provide evidence that it was only
non-compliant because of an approved component that they used. This evidence
would be easily available to the defendant and it would be relatively
inexpensive for them to present this evidence.[51]
2.97
However, the initial analysis stated that without additional information
it was unclear that these matters are a sufficient basis for permissibly
limiting the right to be presumed innocent.
2.98
Further, it was unclear that reversing the evidential burden is
necessary as opposed to including additional elements within the offence
provisions themselves. This raised questions as to whether the measure is the
least rights restrictive approach.
2.99
The committee drew to the attention of the minister its Guidance Note
1 and Guidance Note 2, which set out information specific to reverse
burden offences, and requested the minister's advice as to:
-
whether the reverse burden offences are aimed at achieving a
legitimate objective for the purposes of international human rights law;
-
how the reverse burden offences are effective to achieve (that
is, rationally connected to) their objective;
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective; and
-
whether it would be feasible to amend the measures so that the
relevant matters (currently in defences) are included as elements of the
offence or alternatively, to provide that despite section 13.3 of the Criminal
Code, a defendant does not bear an evidential (or legal) burden of proof in
relying on the offence-specific defences.
Minister's response
2.100
The minister's response usefully addresses the reverse burden offences
in each of the proposed subsections 16(3), 24(3)-(4), 32(2) and 43(2). In
general, the response explains that the legitimate objective of the offences is
to ensure road vehicles provided for the first time in Australia meet the
necessary standards, including safety standards, thereby limiting risks to the
community. This is likely to be a legitimate objective for the purposes of international
human rights law.
2.101
The minister's response states that in some cases it would be more
costly and resource-intensive for the prosecution to disprove, rather than for
the defendant to establish the relevant matter. While this particular
difficulty is acknowledged, it is noted that this justification alone is
unlikely to be sufficient for reversing the burden of proof for the purposes of
international human rights law.
2.102
The minister's response further states that the offence provisions in
proposed subsections 16(3), 24(3)-(4) and 43(2) are reasonable and
proportionate as the relevant matters necessary to prove an exception to the
offences would be peculiarly within the knowledge of the defendant. For
example, in relation to subsection 16(3), which relates to the entry of
non-compliant vehicles onto the Register of Approved Vehicles (RAV), the
response states:
...[T]he precise details of the design and manufacture of the
vehicle, and the procurement and use of components, is peculiarly within the
knowledge of the type approval holder. It is a core requirement of type
approvals that type approval holders retain this information in 'supporting
documentation', rather than provide all this information to the Department of
Infrastructure, Regional Development and Cities (the Department) to gain an
approval. While the Department can access this information by requesting it, this
is a costly and resource intensive exercise, requiring the Department to obtain
a full outline of the design and manufacturing process and spend taxpayer
resources to develop a detailed understanding of one type approval holder's
production process.
Secondly, an inability to effectively prosecute would
undermine the Department's ability to achieve the objective of clause 16. The
reversal of evidential burden is reasonable and proportionate — the provision
reverses only the evidential, and not the legal, burden of proof. Type approval
holders, to whom this offence relates, will already be required under the Act
to possess or have access to the relevant documentation, and a detailed
understanding of their own processes. That is, they will already be required to
hold the information that would be necessary for discharging the evidentiary
burden. A circumstance that would require a person to bear an evidential burden
would apply almost exclusively to corporations, rather than individuals,
because individuals are unlikely to be able to hold the technical information
and ensure conformity of production in fulfilment of a type approval holder's
obligations.
2.103
Based on the further detailed information provided by the minister, it
may be accepted that the matters such as those stated above in relation to
subsection 16(3) would be peculiarly within the knowledge of the defendant. In
relation to subsection 16(3), for example, the response states that persons to
whom the offence relates will already be required to possess the type of
information relevant to discharging the evidentiary burden. This indicates that
the reversal of the evidential burden of proof may constitute a reasonable and
proportionate limitation on the presumption of innocence. The minister provides
a similar justification in relation to subsections 24(3)-(4) and 43(2).[52] The fact that the reverse burden offences impart an evidential rather than a
legal burden on defendants also assists with the proportionality of the
measures.
2.104
The regulatory context in which these measures operate, and the
importance of the objective being sought, is also relevant to a human rights
compatibility assessment. In particular, this broader context is explained by
the minister in relation to section 32(2):[53]
...[T]his is a proportionate measure within the broader context
of the regulatory framework. Entities regulated by the Bill are given
significant freedoms to import and provide vehicles without Government
oversight of each vehicle. For example, type approval holders can import
thousands of vehicles per year with no individual vehicle checks. In return for
such freedoms, the Australian government sets high standards for integrity and
honesty, such as requiring all information to be true and accurate.
Commensurate with this expectation the evidentiary burden is placed on the
person who furnished the false or misleading information initially to provide
evidence that the matter was not false or misleading in a material particular.
This is a reasonable and proportionate trade-off in the context of the
potential scale of community impact incurred should the false or misleading
information be of a material nature.
Secondly, this offence is reasonable and proportionate when
you consider the context of volumes of information and the cost to Government
(and thus the community) of regulatory actions. Approval holders have
significant record keeping obligations. For example, type approval holders must
maintain supporting information that outlines the entire manufacturing and
compliance process - from source material to testing evidence to manufacturing
instructions. This information is important for demonstrating compliance with
the national road vehicle standards.
The information can be requested to audit compliance with the
Bill. Any false or misleading information, regardless of its materiality, can
cause significant delays in the auditing of such documentation. The wrong
contact details provided for a testing facility or incorrectly recorded
qualification of test engineers (although the real qualifications may be
compliant) are such examples. The burden to present evidence about the
materiality of such false or misleading information - particularly after
causing significant delays to an audit - presents an unreasonable cost to
Government, a cost that is ultimately borne by the community. Therefore it is
reasonable and proportionate that the person providing false or misleading
information in the first place has the burden of presenting evidence that the
information was not materially false or misleading.
2.105
In this case, having regard to the regulatory context of the measures as
described by the minister and the importance of ensuring compliance with the
national road vehicle standards, the offence provision in section 32 may be a
reasonable and proportionate limitation on the right to be presumed innocent.
2.106
In light of the minister's further information, the offence-specific
defences or exceptions in proposed subsections 16(3), 24(3)-(4), 32(2) and
43(2) appear, on balance, to be compatible with the presumption of innocence.
Committee response
2.107
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.108
Based on the further information provided, the committee
considers that, on balance, the offence provisions in the bill may be
compatible with the right to be presumed innocent.
Coercive evidence gathering powers
2.109
Section 41 of the bill provides that the minister, secretary or a Senior
Executive Service employee may issue a disclosure notice to persons who supply
road vehicles or road vehicle components if the person giving the notice
reasonably believes that: vehicles or components of that kind will or may cause
injury; vehicles or components of that kind do not, or likely do not, comply
with applicable national standards; and the person receiving the notice is
capable of giving or producing applicable information, documents or evidence.
2.110
Section 42 sets out that a person is not excused from giving information
or evidence or producing a document on the grounds that to do so might tend to
incriminate the person or expose them to a penalty. Section 42(2) provides that
the information, evidence or documents provided in response to a disclosure
notice are not admissible in evidence against the individual in civil or
criminal proceedings subject to limited exceptions.[54] Failure or refusal to comply with a disclosure notice is an offence with a
sanction of up to 40 penalty units ($8,400) for an individual.[55]
Compatibility of the measure with
the right not to incriminate oneself
2.111
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)).
2.112
Section 42 of the bill engages and limits this right by requiring that a
person give information or evidence, or produce a document, notwithstanding
that to do so might tend to incriminate that person. The right not to
incriminate oneself may be subject to permissible limitations where the
limitation pursues a legitimate objective, is rationally connected to that
objective and is a proportionate way of achieving that objective.
2.113
The statement of compatibility acknowledges that the measure engages and
limits this right. In relation to the proposed disclosure notices, it argues
that it is appropriate to override the right not to incriminate oneself 'as
failure to comply could seriously undermine the effectiveness of the regulatory
scheme'.[56] The explanatory memorandum sets out further information as to why the
abrogation of the right not to incriminate oneself is needed in the particular
regulatory context:
Disclosure notices may be issued where a Minister or
inspector believes that road vehicle or approved road vehicle components pose a
danger to any person. For this reason timely gathering of information about the
extent and nature of any risks is critical. While it may be technically
feasible for the Department to obtain information by other means that do not
impinge on the right against self-incrimination, these actions may take a
longer amount of time. The first priority in recalls of road vehicles or
approved components is the rectification or remediation of the safety or
non-compliance issue. Prosecution and resulting penalties for those involved in
the supply of road vehicles or approved components is generally a secondary
consideration.
The Department may not always have specific information about
the activities of particular suppliers – the Department may receive information
about vehicle safety recalls, such as reports of faulty components in overseas
markets, which will form the basis of its market surveillance activities. The
receipt of such information may place the Department in the position where it
needs to seek information from suppliers of similar vehicles or approved
components in order to ascertain whether the same problem exists in Australia.[57]
2.114
The initial analysis stated that the broad objective of gathering timely
information on road vehicles or road vehicle components that may pose a danger
to the public is likely to be a legitimate objective for the purposes of
international human rights law. Requiring that suppliers produce information or
documents on such matters also appears to be rationally connected to this
objective. It was noted that it would have been useful had this information
been included in the statement of compatibility as well as the explanatory
memorandum.
2.115
Questions arose, however, as to the proportionality of the measure. The
availability of 'use' and 'derivative use' immunities can be an important
factor in determining whether the abrogation of the privilege against
self-incrimination is proportionate. That is, they may act as a relevant
safeguard. In this case, a 'use' immunity would be available in relation to
this measure. This means that, where a person has been required to give
incriminating evidence, that evidence cannot be used against the person in any
civil or criminal proceeding, subject to exceptions, but may be used to obtain
further evidence against the person.
2.116
However, no 'derivative use' immunity is provided in the
bill. This means that information or evidence indirectly obtained as a result
of the person's incriminating evidence may be used in criminal proceedings
against the person. It was acknowledged that a 'derivative use' immunity will
not be appropriate in all cases (for example, because it would undermine the
purpose of the measure or be unworkable).
2.117
Further, it was noted that the availability or lack of
availability of a 'derivative use' immunity needs to be considered in the
regulatory context of the proposed powers. The extent of interference with the
privilege against self-incrimination that may be permissible as a matter of
international human rights law may be, for example, greater in contexts where
there are difficulties regulating specific conduct, persons subject to the
powers are not particularly vulnerable or powers are otherwise circumscribed
with respect to the scope of information which may be sought. That is, there is
a range of matters which influence whether the limitation is proportionate.
2.118
In this case, the statement of compatibility does not
substantively address why a 'derivative use' immunity would not be reasonably
available. This raised the question as to whether the measure is the least
rights restrictive way of achieving the stated objective as required in order
for the limitation to be proportionate.
2.119
The committee therefore sought the advice of the minister as to:
-
whether the limitation is a reasonable and proportionate measure
to achieve the stated objective;
-
whether the persons and the scope of information that may be
subject to compulsory disclosure is sufficiently circumscribed with respect to
the stated objective of the measure; and
-
whether a 'derivative use' immunity is reasonably available as a
less rights restrictive alternative in section 42 to ensure information or
evidence indirectly obtained from a person compelled to answer questions or
provide information or documents cannot be used in evidence against that
person.
Minister's response
2.120
In relation to the proportionality of the measure, the minister's
response explains that the proposed disclosure notices would only apply to a
limited cohort of persons in a particular regulatory context, namely, to
persons who supply road vehicles or components in trade or commerce.
2.121
The minister's response further states that the use of disclosure
notices is reasonable in the context of seeking to obtain information on road
vehicles or related components that may pose a danger to the public in a timely
manner. The response states that, while in some cases it may be feasible to
obtain information by other means, 'the additional time taken to obtain such
information may significantly increase the risk to public safety'.
2.122
As to the scope of information that may be subject to compulsory disclosure
by persons who supply road vehicles or road vehicle components, the minister's
response states:
...[T]he broad scope of information that can be obtained
through a disclosure notice under s 42 is necessary to achieve the objective of
the provision. Information relevant to whether a vehicle has a safety defect or
demonstrates non-compliance varies greatly. Given the complexity of road
vehicles and their supply chains, relevant information could range from
information about a source material (such as quality of steel), customer
complaints through dealership service departments, evidence of testing results
or the calibration metrics on a specific piece of machinery.
Given the breadth of relevant circumstances and information,
listing all the types of information that can be requested would risk missing
vital or unique information that was not considered when drafting the list.
This would unreasonably limit the achievement of the objective of the clause -
to gather all relevant information on dangerous vehicles or components in a
timely manner to mitigate risks to the community.
2.123
The minister's response also provides the following information as to
whether a derivative use immunity would be reasonably available:
Including a derivative use immunity for this offence is not
appropriate in the broader context of ensuring that the Bill is able to meet
its objectives.
The Bill, including clause 42, has been drafted to be
consistent with the existing requirements of the Australian Consumer Law,
which overlaps to some extent with the recalls scheme set out in the Bill. This
is designed to prevent suppliers of road vehicles 'legislation shopping' by
pressuring regulators to use legislation with more lenient compliance tools.
A disclosure notice is used in situations where information
about unsafe or non-compliant vehicles is not forthcoming from vehicle
suppliers - presenting an immediate risk of harm to the community. A derivative
use immunity may provide an incentive for non-compliant suppliers to initially
withhold information from the regulator, then use the subsequent disclosure
notice to 'confess' to other serious non-compliance. This is not appropriate in
the context of the serious community harm that can be caused by any delay.
It should be noted, providing for derivative use immunity may
prevent the Department from sharing information with other Departments or State
and Federal Police. Such an agency will also be bound by any derivative use
immunity. In the event that the other agency wished to commence criminal or civil
penalty proceedings against that person, it would not be able to make use of
any evidence derived as a result of the originally received information. It
would also face the additional evidentiary hurdle of establishing that no use
was made of the shared information in obtaining the evidence to be relied upon
in the prosecution. This is particularly concerning as the Department will
continue to collaborate with the Australian Competition and Consumer Commission
where information raises consumer protection issues.
2.124
It is acknowledged that, from a practical perspective, the inclusion of
a derivative use immunity could make subsequent investigations by different
agencies more difficult. However, this reasoning of itself would not be
sufficient to justify a limitation on the right not to incriminate oneself.
This is because it is not permissible to limit a human right where the measure
is merely seeking an outcome that is desirable or convenient rather than
addressing a pressing and substantial concern.
2.125
However, as noted above, there is a range of matters which influence
whether a limitation on the right not to incriminate oneself is permissible. In
this case, the minister has provided useful information on the pressing need
for the evidence gathering powers, the regulatory context of the proposed
measures and the limited cohort of persons (those who supply road vehicles or
road vehicle components) who may be subject to them. It is further noted that
the bill as drafted only provides for the issuance of a disclosure notice if
the minister, secretary or a Senior Executive Service employee 'reasonably
believes' that, broadly, there is a safety issue in relation to road vehicles
or components of that kind or that they do not comply with applicable road
safety standards (see [2.109] above). The requirement that the power only be
exercised on these 'reasonably' held grounds may further assist the
proportionality of the measure.
2.126
In light of the further information provided by the minister, on
balance, it is likely that the limitation on the right not to incriminate
oneself is proportionate to the legitimate objective of the measure.
Committee response
2.127
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.128
Based on the further information provided by the minister, including
as to the particular regulatory context of the measure, the committee considers
that the measure is likely to be compatible with the right not to incriminate
oneself.
Compatibility of the measure with the right to privacy
2.129
The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information,
particularly the use and sharing of such information and the right to control
the dissemination of information about one's private life.
2.130
By requiring that a person give information or evidence or produce a
document, including in circumstances where to do so might tend to incriminate
that person, the proposed measure may also engage and limit the right to
privacy.
2.131
The statement of compatibility does not acknowledge that the proposed coercive
evidence gathering powers in section 41 may engage the right to privacy and
therefore does not provide an assessment of whether the measure engages and
limits this right.[58] It was unclear from the information provided as to the extent to which a person
may be required to disclose personal or confidential information. As noted above,
the measure appears to pursue a legitimate objective and be rationally
connected to that objective. However, the initial analysis stated that
questions arose as to whether the measure is a proportionate means of achieving
the objective in the context of limitations on the right to privacy.
2.132
In particular, to be proportionate, a limitation on the right to privacy
should only be as extensive as is strictly necessary to achieve its legitimate
objective and must be accompanied by appropriate safeguards. Information and
evidence as to whether the measure is the least rights-restrictive way of
achieving the stated objective of the measure, and of any safeguards in place
to protect a person's informational privacy when providing information pursuant
to the coercive information gathering powers in the bill, would be of
assistance in determining the proportionality of the measure.
2.133
The committee therefore sought the advice of the minister as to whether
any limitation on the right to privacy is reasonable and proportionate to
achieve the stated objective including:
-
what types of information may be subject to a disclosure notice
and whether this could include personal or confidential information;
-
whether there are less rights restrictive ways of achieving the
objective;
-
whether the persons who may be subject to compulsory disclosure
is sufficiently circumscribed with respect to the stated objective of the
measure; and
-
whether there are adequate and effective safeguards in relation
to the measure.
Minister's response
2.134
In relation to the types of information that may be subject to
disclosure, the minister's response explains that this may include a wide range
of information 'in order to capture all relevant information about an unsafe
vehicle or component', possibly including personal or confidential information.
The minister argues that imposing limitations on the capturing of personal or
confidential information would undermine the objective of the measure on the
following grounds:
First, it risks vital information not being provided that
goes to the safety of a vehicle or component, on the basis that it may contain
personal information. Secondly, it would provide a screen for suppliers of
dangerous road vehicles or components to hide behind when responding to a disclosure
notice by being able to claim that relevant information cannot be provided due
to the presence of personal or confidential information.
2.135
The minister further states that, while the department will have regard
to whether relevant information, documents or other evidence are likely to be
otherwise available, including whether they may be provided voluntarily, this
is not always possible or appropriate. The response cites a number of reasons
for this, including that a person may have previously failed to respond or to
fully respond to a voluntary request; concerns that a voluntary request will be
met with delays or protracted negotiations; or the department has information
from other sources that is inconsistent with the information voluntarily
provided. The minister therefore appears to argue that a less rights
restrictive approach to obtaining information in the particular circumstances
of the measure may not be reasonably available.
2.136
The minister also cites a range of matters the department will consider
before issuing a disclosure notice, including:
-
whether there is a risk that the
information, documents or evidence may otherwise be destroyed, not provided or
provided only on terms unacceptable to the Department;
-
whether it may be appropriate to
issue a disclosure notice to obtain such information or documents from a
potential respondent for evidentiary purposes, including obtaining oral
evidence under oath or by way of affirmation;
-
whether it is appropriate to use
other powers to obtain the information, documents or evidence (e.g. search
warrant powers or wait for any future discovery process); and
-
the burden of the disclosure on
the recipient, including time and cost considerations.
2.137
While these factors may potentially assist the proportionality of the
measure, they appear to be departmental policies or procedures, rather than a
legal requirement. In this respect, it is noted that departmental policies and
procedures are less stringent than legislation as they can be removed, revoked
or amended at any time and are not subject to the same levels of scrutiny or
accountability as if the policies were enshrined in legislation.
2.138
As noted above at [2.124] in relation to the compatibility of the
measure with the right not to incriminate oneself, the bill provides that a
disclosure notice be issued on certain limited and reasonably held grounds. In
this respect, the minister cites as a relevant safeguard the fact that under
the bill a disclosure notice may only be issued if the person giving the notice
reasonably believes that a supplier is capable of giving information, producing
documents or giving evidence in relation to the vehicles or components in
question.[59]
2.139
Finally, the minister explains other safeguards in place relating to the
disclosure of information:
This overarching legal framework for personal information
also includes robust oversight arrangements for the handling of personal
information. Central to the oversight regime are judicial review, the
Commonwealth Ombudsman and the Privacy Act 1988 (Privacy Act). The
Department will be required to collect, handle and store such information in
accordance with the Privacy Act 1988, including the Australian
Privacy Principles. Departmental officers that receive personal and
confidential information are also bound by the Public Service Act 1999 and the Australia Public Service Code of Conduct.
The Department is also under an implied legal obligation to
use information, documents or evidence provided in response to a disclosure
notice for the purposes for which the notice was issued, the purpose being to
assist the Department in investigating a possible recall under Part 3 of the
Bill and to reach a view as to whether such a recall notice is necessary. This
obligation reflects the legal requirement that statutory powers are to be used
for proper purposes.
2.140
It is noted that the Australian Privacy Principles in the Privacy Act
1988 are not a complete answer to concerns about interference with the
right to privacy in this context, as those principles contain a number of
exceptions to the prohibition on disclosure of personal information.[60] However, noting the information provided on potential safeguards, including the
limited grounds on which a disclosure notice may be issued and the specific
regulatory context of the proposed powers, on balance, the limitation on the
right to privacy may be proportionate.
Committee response
2.141
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.142
Based on the further information provided, the committee
considers that, on balance, the measure may be compatible with the right to
privacy.
Treasury Laws Amendment (Enhancing ASIC's Capabilities) Bill 2018
Purpose |
Seeks to amend the Australian
Securities and Investments Commission Act 2001 to require ASIC to
consider competition in the financial system when performing its functions
and exercising its powers and to remove the requirement for ASIC staff to be
engaged under the Public Service Act 1999. Also seeks to make
consequential amendments to several Acts |
Portfolio |
Treasury |
Introduced |
House of Representatives,
28 March 2018 |
Rights |
Just and favourable
conditions of work (see Appendix 2) |
Previous report |
4 of 2018 |
Status |
Concluded examination |
Background
2.143
The committee first reported on the bill in its Report 4 of 2018,
and requested a response from the Minister for Revenue and Financial Services by
23 May 2018.[61]
2.144
The minister's response to the committee's inquiries was received on
24 May 2018. The response is discussed below and is reproduced in full at Appendix 3.
Removal of requirement for ASIC staff to be engaged under the Public
Service Act
2.145
The bill seeks to amend the Australian Securities and Investments
Commission Act 2001 (ASIC Act) to provide that the chairperson of ASIC may
employ such employees as the chairperson considers necessary for ASIC and may
determine the terms and conditions of employment, including remuneration.[62] The chairperson would also determine in writing the ASIC Code of Conduct and
the ASIC Values which apply to ASIC members and staff members.[63]
2.146
The effect of these amendments would be to remove the requirement for
ASIC staff to be engaged under the Public Service Act 1999 (PS Act), and
consequently remove the requirement that ASIC staff members employed under the
PS Act be subject to the Australian Public Service (APS) Code of Conduct and
APS Values.
Compatibility of the measures with the
right to just and favourable conditions of work
2.147
The right to work and rights in work are protected by articles 6(1), 7
and 8(1)(a) of the International Covenant on Economic, Social and Cultural
Rights (ICESCR).
2.148
The right to just and favourable conditions of work includes the right
to decent work providing an income that allows the worker to support themselves
and their family, and which provides safe and healthy conditions of work.
2.149
The PS Act contains a range of provisions relating to the terms
and conditions of employment of public servants. The initial human rights
analysis stated that, by removing the requirement that ASIC employ staff under
the PS Act and providing that the ASIC chairperson may engage staff directly
and set the terms and conditions of employment, the measures engage and may
limit the right to just and favourable conditions of work.
2.150
This right may be permissibly limited where the limitation pursues a
legitimate objective, is rationally connected to that objective and is a
proportionate means of achieving that objective. The statement of compatibility
does not acknowledge that any rights are engaged or limited by the measures and
therefore does not provide an analysis against these criteria.
2.151
The explanatory memorandum states that the proposed amendments will
'support ASIC to more effectively recruit and retain staff in positions
requiring specialist skills'.[64] The initial analysis stated that this may be capable of being a legitimate
objective for the purposes of international human rights law. However, limited
information is provided in the explanatory materials to the bill as to how this
objective addresses a pressing and substantial concern, as is required in order
to constitute a legitimate objective for the purposes of international human
rights law.
2.152
It is unclear from the explanatory materials, for example, how the PS
Act operates as a barrier to the recruitment and retention of appropriate
staff. The explanatory memorandum states that the amendments implement a
recommendation made by the government commissioned report, Fit for the
Future: A Capability Review of ASIC, published in December 2015. The report
recommended that the government 'remove ASIC from the [PS Act] as a matter of
priority, to support more effective recruitment and retention strategies'.[65] While not discussed in the explanatory materials for the bill, the report noted
several ways in which the PS Act 'negatively impacts' ASIC, including that it
impedes ASIC's ability to attract and retain staff who may pursue better
remuneration elsewhere, including at peer regulators such as the Australian
Prudential Regulation Authority; and that it slows down the ability for
internal promotions, particularly at senior levels.[66] In accordance with Guidance Note 1, the committee's expectation is that
information such as this would be included in the statement of compatibility as
part of an assessment of whether the measures address a pressing and
substantial concern for the purposes of international human rights law.
2.153
There were also questions about the proportionality of the measures and,
in particular, whether the measures are the least rights restrictive approach.
It was unclear, for example, why barriers to recruitment and retention of staff
could not be addressed through the negotiation of entitlements through the
usual enterprise agreement process or the current provisions for Individual
Flexibility Arrangements (IFAs).[67] Further, the ASIC Act currently allows for the chairperson to employ persons
outside the PS Act, under terms and conditions such as the chairperson
determines.[68] Questions arose as to whether arrangements such as these may be pursued as less
rights restrictive alternatives to the removal of the requirement that ASIC
staff be engaged under the PS Act.
2.154
At present, APS employees are generally employed under relevant
enterprise agreements which set out terms and conditions of employment. Section
311 of the bill provides that ASIC staff who are APS employees immediately
prior to the date the proposed measures take effect will continue to be
employed from this date of commencement on the same terms, conditions and with
the same accrued entitlements under a written agreement under the ASIC Act.[69] This would appear to indicate that no ASIC staff member currently engaged under
the PS Act will be worse off when the measures in the bill take effect.
However, given the potential breadth of powers of the ASIC chairperson to
employ and set out terms and conditions for ASIC staff, it is not clear from
the information provided what safeguards are in place to ensure ASIC employees
whose work conditions are governed currently under the PS Act are not worse off
in future. As a result, having regard to the breadth of the chairperson's
powers and the obligation on state parties under ICESCR not to unjustifiably
take any backwards steps (retrogressive measures) that might affect the right
to just and favourable conditions of work,[70] concerns arose as to whether the measure as proposed contained adequate
safeguards to protect just and favourable conditions of work.
2.155
The committee therefore sought the advice of the Minister for Revenue
and Financial Services as to:
-
whether there is reasoning or evidence that establishes that the
stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
- how the measure is effective to achieve (that is, rationally
connected to) that objective;
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective, including whether less rights restrictive
measures may be reasonably available and the sufficiency of any relevant
safeguards; and
- whether the measure is compatible with Australia's obligations
not to take any backwards steps (retrogressive measures) in relation to the
right to just and favourable conditions of work.
Minister's response
2.156
The minister's response restates the objective of the bill, as set out
in the explanatory memorandum, as supporting 'more effective recruitment and
retention strategies' for ASIC. As indicated at [2.151] above, this may be
capable of being a legitimate objective for the purposes of international human
rights law. As to whether the measure addresses a pressing and substantial
concern and is effective to achieve the stated objective, the minister's
response states that ASIC is required to recruit staff with knowledge of, and
expertise in, financial markets and financial services. The minister explains
that as a result, ASIC is 'often competing against the private sector, as
opposed to other public sector agencies, when recruiting suitable staff' and
accordingly that '[e]mployment under the PS Act restricts ASIC's ability to
provide conditions which allow ASIC to be able to compete more effectively in
the labour market for suitable staff'. The minister further explains that this
will bring ASIC into line with other financial regulators (the Australian
Prudential Regulation Authority and the Reserve Bank of Australia) that are
also able to recruit staff outside of the PS Act.
2.157
The minister's response also provides information as to how the PS Act
may operate as a barrier to the effective recruitment and retention of
appropriate staff:
-
Limitations on employment of
temporary employees
ASIC can only employ temporary staff under the PS Act for a
total maximum period of three years, even though it may require employees for
major litigation and other enforcement matters for a longer period of time. The
move from the PS Act allows ASIC to employ staff for periods over the entire
life of the matter or project. It also allows ASIC to reemploy temporary staff
who have the relevant litigation and regulatory experience.
-
Limitation on the employment of
contractors and consultants
Subsection 120(3) of the current legislation limits the ASIC
Chairperson's ability to employ contractors and consultants because:
— the power
to employ consultants and contractors is not able to be delegated, so the
Chairperson is the only person able to employ these staff and must do so
directly; and
— the terms
and conditions for contractors and consultants must be approved by the
Minister.
The public sector classification and remuneration system is
not suited to the work ASIC (and the other financial regulators) undertakes. To
recruit and retain staff in positions requiring specialist skills, ASIC needs
to be able to separate remuneration from the public sector classified levels.
This is particularly important given the significance of the powers delegated
to ASIC staff.
The current staffing delegations set out in the PS Act lack
clarity and have resulted in ASIC having to seek legislative amendments in
2017. The lack of clarity is an on-going risk.
2.158
Based on the information provided, the removal of the requirement for ASIC
to employ staff under the PS Act may be rationally connected to the stated
objective noting the particular context in which ASIC operates.
2.159
The minister also provides information as to the safeguards that are in
place to protect just and favourable conditions of work, which is relevant to
determining the proportionality of the measure. Safeguards identified by the
minister include the protections provided under Part 2-4 of Chapter 2, Division
7 of the Fair Work Act 2009, which set out the circumstances in which
enterprise agreements may be varied or terminated. In particular, the minister
notes that variations to or terminations of enterprise agreements cannot take
place without the agreement of employees. The minister states in relation to
the next enterprise agreement, due for negotiation in 2019, that:
The move from the PS Act will not change those negotiations
at all, as the procedures under which terms and conditions of employment are
negotiated are prescribed in the FW Act [Fair Work Act 2009]. The FW Act
provides that for the agreement to be approved it must pass the "better
off overall" test when compared against the relevant modern award.
Similarly, the EAC Bill has no impact on the requirement for ASIC to comply
with the Australian Workplace Bargaining Policy.
2.160
The minister also reiterates that under the transitional provisions set
out in the bill, staff who transfer from employment under the PS Act to
employment under the ASIC Act 'retain the same terms and conditions of
employment that applied immediately before the commencement date', including
maintaining accrued entitlements, and that the existing enterprise agreement
remains in place. This is an important safeguard for existing ASIC staff
employed under the PS Act. While these transitional provisions do not provide
specific protection for ASIC employees who will be subject to future
arrangements set by the chairperson, on balance, some of the existing measures
referred to by the minister under the Fair Work Act would assist with
proportionality from the perspective of international human rights law.
2.161
Based on the information provided by the minister, including the
existence of relevant safeguards, on balance, the measure may be a
proportionate limitation on the right to just and favourable conditions of
work, and the obligation not to unjustifiably take any backwards steps
(retrogressive measures) in relation to this right. However, this may depend on
how these measures are implemented in practice.
Committee response
2.162
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.163
Based on the further information provided, the committee
considers that, on balance, the measure may be compatible with the right to
just and favourable conditions of work.
Treasury Laws Amendment
(2018 Measures No. 4) Bill 2018
Purpose |
Range of amendments
concerning compliance with the Superannuation Guarantee |
Portfolio |
Treasury |
Introduced |
House of Representatives,
28 March 2018 |
Rights |
Presumption of innocence (see Appendix 2) |
Previous reports |
4 of 2018 |
Status |
Concluded examination |
Background
2.164
The committee first reported on the bill in its Report 4 of 2018,
and requested a response from the Minister for Revenue and Financial Services by
23 May 2018.[71]
2.165
The minister's response to the committee's inquiries was received on
24 May 2018. The response is discussed below and is reproduced in full at Appendix 3.
Strict liability and absolute liability offences
2.166
Schedule 1 of the bill seeks to amend the Taxation Administration Act
1953 (TAA) to introduce a strict liability offence for employers who fail
to comply with a direction from the Commissioner to pay a superannuation
guarantee charge.[72] A person will not commit an offence if they took all reasonable steps
within the required period to both comply with the direction and to ensure that
the original liability was discharged before the direction was given.[73]
2.167
Schedule 1 would also allow the Commissioner to direct an employer to
attend an approved education course where that employer has failed to comply
with their superannuation guarantee obligations. Failure to comply with the
education direction would be an absolute liability offence.[74]
2.168
Schedule 5 of the bill seeks to amend the TAA to introduce a strict
liability offence for failing to provide security where ordered to do so by the
Federal Court.[75] A person will not commit an offence to the extent that they are not capable of
complying with the order.[76]
Compatibility of the measure with
the presumption of innocence
2.169
Article 14(2) of the International Covenant on Civil and Political
Rights (ICCPR) provides that everyone charged with a criminal offence has the
right to be presumed innocent until proven guilty. Generally, consistency with
the presumption of innocence requires the prosecution to prove each element of
a criminal offence beyond reasonable doubt. The effect of applying strict
liability to an element of an offence means that no fault element needs to be
proven by the prosecution, although the defence of mistake of fact is available
to the defendant. Applying absolute liability to an element of an offence also
means that no fault element needs to be proved by the prosecution; however, the
defence of mistake of fact is not available to the defendant. The strict
liability and absolute liability offences engage the presumption of innocence
because they allow for the imposition of criminal liability without the need to
prove fault.
2.170
Strict liability and absolute liability offences will not necessarily be
inconsistent with the presumption of innocence provided that they are within
reasonable limits, taking into account the importance of the objective being
sought, and maintain the defendant's right to a defence. In other words, such
offences must pursue a legitimate objective and be rationally connected and
proportionate to that objective.
2.171
The initial human rights analysis stated that, while the statement of
compatibility provides a general description of the nature and effect of each
of the proposed offences,[77] it does not acknowledge that the presumption of innocence is engaged or limited
by the strict liability and absolute liability offences in Schedule 1 and
Schedule 5. Instead, the statement of compatibility states that both Schedule 1
and Schedule 5 do not engage any applicable rights or freedoms.[78]
2.172
It was noted that the explanatory memorandum to the bill also provides
some information as to the rationale for and effect of the strict liability and
absolute liability offences.[79] However, the initial analysis stated that the information provided in the
explanatory memorandum is not sufficient as it does not provide an assessment
of whether the limitation on the presumption of innocence is permissible. As
set out in the committee's Guidance Note 1, the committee's expectation
is that statements of compatibility read as stand-alone documents, as the
committee relies on the statement as the primary document that sets out the
legislation proponent's analysis of the compatibility of the bill with
Australia's international human rights obligations.
2.173
The committee referred to its Guidance Note 1 and sought further
information from the minister as to:
-
whether the strict liability and
absolute liability offences introduced by the bill pursue a legitimate
objective for the purposes of international human rights law;
-
whether the offences are
rationally connected to (that is, effective to achieve) that objective; and
-
whether the limitation on the
presumption of innocence introduced by the strict liability and absolute
liability offences is proportionate to that objective.
Minister's response
Schedule 1 of the Bill
2.174
In relation to whether the proposed strict liability and absolute
liability offences in Schedule 1 of the bill pursue a legitimate objective for
the purposes of international human rights law, the minister's response
explains that the objective of the measures is to ensure compliance with
superannuation guarantee obligations. The minister's response further states:
Ensuring compliance with superannuation guarantee obligations
forms a legitimate objective for the purposes of human rights law because,
unlike other debts owed to the Commonwealth, the ultimate beneficiaries of the
superannuation guarantee payments are individuals. Any amounts of
superannuation guarantee charge paid by the employer to the Commissioner are
distributed to the superannuation funds of employees who did not receive the
minimum level of contributions from their employer.
2.175
Based on the information provided, ensuring compliance with
superannuation guarantee obligations appears to be advancing a legitimate
objective for the purposes of international human rights law.
2.176
The minister's response also explains how the measures are rationally
connected to (that is, effective to achieve) this objective. The response
states that applying absolute liability and strict liability to these offences
'substantially improves the effectiveness of ensuring employer compliance with
existing and future superannuation guarantee obligations which are required by
superannuation and taxation laws' and acts as a 'significant and real deterrent
to those entitles who fail to meet their superannuation guarantee obligations'.
2.177
As to whether the limitation on the presumption of innocence introduced
by the strict liability offence for failing to comply with a direction from the
Commissioner to pay a superannuation guarantee charge is proportionate, the
minister's response states that the strict liability offence is appropriate and
proportionate in the circumstances in light of the defences that are available
that will protect persons who have taken reasonable steps to try and discharge
liability.[80] The minister's response further explains that the direction from the
commissioner (failure to comply with which gives rise to the strict liability offence)
'is only intended to be applied to employers who have the capability to pay but
have consistently refused to do so' and that 'outside of these defences there
are no reasons for an employer not to pay their employee's superannuation
guarantee contribution'. Having regard to these matters, and the availability
of the defence of honest mistake of fact, on balance the strict liability
offence introduced by Schedule 1 appears to be a proportionate limitation on
the presumption of innocence.
2.178
As to the absolute liability offence for failing to attend an approved
education course where the employer has failed to comply with superannuation
guarantee obligations, the minister's response states this is proportionate to the
stated objectives, having regard to the defence that is available under section
8C(1B) of the TAA that a person will not commit an offence to the extent the
person is not capable of complying with the education direction. The effect of
the defence, as explained in the explanatory memorandum, is that 'an employer
who is genuinely incapable of complying with the direction will not commit an
offence'.[81] The minister's response explains that there
are no reasons for an employer not to attend the education course under the
direction beyond those covered by this defence. Noting the direction to attend
an education course arises in circumstances where an employer has failed to
comply with superannuation guarantee obligations, and in light of the
information provided by the minister, this would appear to be a proportionate
limitation on the presumption of innocence.
Schedule 5 of the Bill
2.179
In relation to whether the proposed offence in Schedule 5 of the bill pursues
a legitimate objective for the purposes of international human rights law, the
minister states:
This measure addresses instances of non-compliance with the
security deposit rules which predominantly arise where the value of the
security deposit (which reflects the value of the tax related liability)
exceeds the existing penalty for failing to provide the security deposit.
Entities who fail to comply with a Court order risk committing a criminal
offence resulting in criminal penalties. These consequences provide appropriate
incentives to ensure compliance with the Court order and reflect the seriousness
of a failure to comply.
This is a legitimate objective for the purposes of human
rights law because it addresses the underlying non-compliance by taxpayers who
actively avoid paying their tax related liabilities. These taxpayers have
already committed an offence under the tax law for failing to comply with the
existing security deposit requirement.
2.180
The objective of addressing non-compliance by taxpayers actively
avoiding their tax-related liabilities is likely to be legitimate for the
purposes of international human rights law.
2.181
The minister's response further explains how the strict liability
offence is an effective means (that is, is rationally connected) to achieve the
objective:
Applying strict liability to this offence will substantially
improve the effectiveness of ensuring taxpayer compliance with existing and
future tax related liabilities required under the tax law. The provision has a
rational connection to the objective as it will act as a significant and real
deterrent to those entities who fail to comply with a Federal Court order to
provide the security. It is also consistent with the existing offence for
failing to comply with tax related obligations, which as noted above, are
subject to an offence of absolute liability.
2.182
As to the proportionality of the proposed offence, the minister states:
The strict liability offence in Schedule 5 to the Bill is
appropriate and proportionate in the context of ensuring greater compliance
with orders made by the Court to provide security to the Commissioner for an
outstanding tax related liability. There are no reasons for a taxpayer to not
comply with the Court order beyond those covered by the applicable defence of
not being capable of complying.
2.183
Having regard to the availability of the defence available to a
defendant if they are not capable of complying with the court order, as well as
the availability of the defence of honest mistake of fact, on balance the
strict liability offence appears to be compatible with the presumption of
innocence.
Committee response
2.184
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.185
The committee considers that the strict liability and absolute
liability offences are likely to be compatible with the presumption of innocence.
Underwater Cultural Heritage Bill 2018
Purpose |
Introduces a series of
measures to provide for the protection and conservation of Australia's
underwater cultural heritage |
Portfolio |
Environment and Energy |
Introduced |
House of Representatives,
28 March 2018 |
Rights |
Fair trial; criminal
process rights (see Appendix 2) |
Previous reports |
4 of 2018 |
Status |
Concluded examination |
Background
2.186
The committee first reported on the bill in its Report 4 of 2018,
and requested a response from the Minister for the Environment and Energy by 23
May 2018.[82]
2.187
A response from the Assistant Minister for the Environment was
received on 25 May 2018 and is discussed below and is reproduced in full at Appendix 3.
Civil penalties for breaches of protected underwater cultural heritage
regime
2.188
The bill seeks to introduce a number of civil penalties for breaches of
the proposed new regime for the protection and conservation of Australia's
underwater cultural heritage. Some of these penalties are substantial,
including penalties of up to 300 penalty units (currently, $63,500) for
engaging in prohibited conduct within a protected zone without a permit,[83] possessing protected underwater cultural heritage without a permit,[84] and exporting underwater cultural heritage without a permit.[85] There is also a civil penalty of up to 800 penalty units (currently $168,000)
for engaging in conduct with an adverse impact on protected underwater cultural
heritage without a permit.[86] There are corresponding criminal offences and strict liability offences,
punishable by either imprisonment or civil penalties, which are discussed
further below.
Compatibility of the measure with
criminal process rights
2.189
Under Australian law, civil penalty provisions are dealt with in
accordance with the rules and procedures that apply in relation to civil
matters (for example, the burden of proof is on the balance of probabilities).
However, if the new civil penalty provisions are regarded as 'criminal' for the
purposes of international human rights law, they will engage the criminal
process rights under articles 14 and 15 of the International Covenant on Civil
and Political Rights (ICCPR). The statement of compatibility acknowledges that
the civil penalty provisions may engage criminal process rights if they are
considered 'criminal' for the purposes of international human rights law.
2.190
As noted in the statement of compatibility, the committee's Guidance
Note 2 (see Appendix 4) sets out the relevant steps for determining whether
civil penalty provisions may be considered 'criminal' for the purpose of
international human rights law:
-
first, the domestic classification of the penalty as civil or
criminal (although the classification of a penalty as 'civil' is not
determinative as the term 'criminal' has an autonomous meaning in human rights
law);
-
second, the nature and purpose of the penalty: a civil penalty is
more likely to be considered 'criminal' in nature if it applies to the public
in general rather than a specific regulatory or disciplinary context, and where there is an intention to punish or deter, irrespective of the severity of
the penalty; and
-
third, the severity of the penalty.
2.191
Here, the second and third steps of the test are particularly relevant
as the penalties are classified as 'civil' under domestic law meaning they will
not automatically be considered 'criminal' for the purposes of international
human rights law. Under step two, the statement of compatibility indicates that
the civil penalties are directed at a particular regulatory context, namely the
regulation of underwater cultural heritage. Further, the statement of
compatibility notes that the purpose of the penalties is to deter the 'deliberate
destruction, looting or illegal salvage of protected underwater cultural
heritage that is a national, non-renewable and unique historical asset'.[87] The initial human rights analysis noted that, while the purpose of deterrence
is often an indication that a penalty may be 'criminal' in nature, the narrow
application of the penalties would indicate the penalty is unlikely to be
considered 'criminal' under the second part of the test.
2.192
Even if step two of the test is not established, a penalty may still be
'criminal' for the purposes of international human rights law under step three
where the penalty is a substantial pecuniary sanction. In determining whether a
civil penalty is sufficiently severe to amount to a 'criminal' penalty under
step three, the nature of the industry or sector being regulated and the
relative size of the penalties in that regulatory context is relevant. It was
noted that the conduct regulated by the bill that gives rise to the relevant
civil penalties (such as damage and destruction to sites of underwater cultural
heritage) may be substantial and irreversible, and that the penalties have been
drafted having regard to those potential consequences. However, the civil
penalties that may be imposed are substantial. This raised concerns as to
whether the overall severity of the penalty would mean that the penalties may
be classified as 'criminal' for the purposes of international human rights law.
The initial analysis stated that further information as to the relative size of
the pecuniary penalties in the particular context that is being regulated would
be of assistance in determining the human rights compatibility of the
legislation.
2.193
If the civil penalties were assessed to be 'criminal' for the purposes
of human rights law, this does not mean that the relevant conduct must be
turned into a criminal offence in domestic law, nor does it mean that the civil
penalty is illegitimate. Instead, it means that the civil penalty provisions in
question must be shown to be consistent with the criminal process guarantees
set out in articles 14 and 15 of the ICCPR, including the right not to be tried
twice for the same offence (article 14(7)) and the right to be presumed
innocent until proven guilty according to law (article 14(2)).[88]
2.194
The statement of compatibility usefully explains that the civil penalty
provisions are compatible with Article 14(7), as while there are corresponding
criminal offences attaching to the same conduct, a person cannot be subject to
the civil penalty provision if they have been convicted of the criminal offence
(for which there are different pecuniary penalties applicable, and potential
imprisonment), and any proceedings for a civil penalty provision are
automatically stayed if criminal proceedings are commenced.[89] This would ensure that a person could not be punished twice for the same
conduct, consistent with Article 14(7).
2.195
However, the presumption of innocence in Article 14(2) requires that the
case against a person be demonstrated on the criminal standard of proof, that
is, it must be proven beyond reasonable doubt. By contrast, the standard of
proof applicable in the civil penalty proceedings introduced by the bill is the
civil standard of proof, requiring proof on the balance of probabilities.
Therefore, if the penalties were classified as 'criminal' for the purposes of
international human rights law, it would be necessary to explain how the
application of the civil standard of proof for such proceedings is compatible
with Article 14(2) of the ICCPR. This would include an analysis of whether the
limitation on the presumption of innocence pursues a legitimate objective, is
rationally connected to this objective, and is proportionate to that objective.
2.196
The committee therefore sought the advice of the minister as to whether
the civil penalty provisions in proposed sections 29(6), 30(6), 31(6), and
35(5) of the bill may be considered 'criminal' in nature for the purposes of
international human rights law. The committee also sought the advice of the
minister as to whether, assuming the penalties are considered 'criminal' for
the purposes of international human rights law, the application of the civil
standard of proof to the civil penalty provisions in sections 29(6), 30(6),
31(6), and 35(5) is compatible with the presumption of innocence in Article
14(2) of the ICCPR.
Assistant minister's response
2.197
The assistant minister's response addresses each of the relevant tests
for determining whether a civil penalty is 'criminal' for the purposes of human
rights law. The response states that the civil penalties are classified as such
under domestic law. However, as noted in the initial analysis, this is not
determinative as the term 'criminal' has an autonomous meaning in human rights
law.
2.198
As to the second part of the test, the assistant minister's response
explains the nature and purpose of the penalty:
The penalties proposed in the Underwater Cultural Heritage
Bill 2018 (the Bill) aim to deter and punish conduct that could harm protected
underwater cultural heritage, and are set at a level reflecting the significant
value of the non-renewable heritage resource that would be negatively impacted
by a breach of any of the regulated actions. Although the application of the
penalty provisions is not expressly limited in the Bill, in practice only a
particular sector of the community will be regulated by this Bill, notably
natural persons and bodies corporate who possess and or trade in protected
underwater cultural heritage or who undertake development actions that may
impact protected underwater cultural heritage (for example by physically
damaging, disturbing or removing protected underwater cultural heritage from
the marine environment). As such the primary groups likely to offend are
limited to a small group of persons or bodies corporate.
2.199
The assistant minister's response clarifies that while the purpose of
the penalties is to deter and punish, the penalties in practice apply to a
particular sector of the community. This narrow application and particular regulatory
context suggests that the penalties are unlikely to be classified as 'criminal'
under the second step of the test.
2.200
As to the third step (severity of the penalty), the assistant minister's
response firstly emphasises that the pecuniary penalty 'reflects the intrinsic
and social value of protected sites and individual articles that may be
possessed or traded and are framed to be an appropriate and proportionate
deterrent to natural persons and bodies corporate'. As to the size of the
penalties, the assistant minister's response explains:
The size of the pecuniary penalties also reflects the broad
range and scale of contraventions that can occur such as systemic breaches of
requirements to possess a permit (prior to exporting protected underwater
cultural heritage), deliberate actions (such as disturbance of a site and the
recovery of protected underwater cultural heritage without permit), or a cost
of business approach by developers to the total destruction of underwater
cultural heritage sites.
The inclusion of civil penalties in the Bill provides an
option for an appropriate and proportionate response to the deliberate
contravention of provisions protecting underwater cultural heritage. A criminal
conviction may result in a disproportionate response which would impact on an
individual's current or future ability to work. This scale of the pecuniary
penalties give the court flexibility in identifying a suitable penalty for each
case on its merits enabling a proportionate response to corporate bodies and
individuals.
2.201
It is acknowledged that the nature of the industry being regulated by
the bill is such that its conduct may cause substantial and potentially
irreversible damage to underwater sites. However, the penalties are substantial
for an individual (300 penalty units for breaches of sections 29(6), 31(6) and
35(5) and 800 penalty units for breaching section 30(6)). Notwithstanding the
particular regulatory context in which the penalties operate, concerns remain
that the overall severity of the penalty may be such that the penalties would
be classified as 'criminal' for the purposes of international human rights law.
2.202
As noted in the initial analysis, civil penalty provisions that may be
classified as 'criminal' for the purposes of human rights law must be shown to
be consistent with the criminal process guarantees. Relevantly, the civil
penalties in the bill must be compatible with the presumption of innocence. In
this context, concerns arise due to the fact that the standard of proof
required in civil penalty proceedings is the civil standard of proof on the
balance of probabilities, rather than the criminal standard of 'beyond
reasonable doubt'. This would constitute a limitation on the right to be
presumed innocent.
2.203
While the assistant minister's position is that the penalties are not
'criminal', the response nonetheless helpfully addresses whether the measure
would constitute a permissible limitation on the right to be presumed innocent.
As to the legitimate objective of such a limitation, the assistant minister's response
discusses the overall objective of the bill:
The Bill pursues a legitimate objective which is to provide
for the identification, protection and conservation of Australia's underwater
cultural heritage. Underwater cultural heritage is threatened by a mix of
environmental, chemical, biological and cultural processes. The Bill aims to
manage the negative impacts to underwater cultural heritage which can be caused
by both natural persons and bodies corporate.
2.204
This is likely to be a legitimate objective for the purposes of
international human rights law. Regulating this conduct by requiring permits in
relation to protected underwater cultural heritage, and civil penalties (and
the accompanying civil standard of proof) to address breaches of these requirements,
appears to be rationally connected to this objective. As to proportionality,
the minister's response explains that the limitation on the presumption of
innocence is proportionate in light of the 'unique and irreplaceable underwater
cultural heritage in-situ' and notes that courts will have 'flexibility in
identifying a suitable penalty for each case on its merits enabling a
proportionate response to corporate bodies and individuals'.
2.205
As to whether the bill could be amended to a less rights restrictive
approach of applying the criminal standard of proof to the civil penalties, the
assistant minister's response states that the purpose of having civil penalties
(with a civil standard of proof) alongside criminal penalties is to 'provide
regulatory flexibility in responding appropriately and proportionately to
contraventions'.
2.206
On balance, having particular regard to the purpose of the penalties and
the overall scheme within which the penalties operate, the application of the
civil standard of proof to the penalty provisions may be a proportionate
limitation on the presumption of innocence.
Committee response
2.207
The committee thanks the assistant minister for her response and
has concluded its examination of this issue.
2.208
The committee considers that, having regard to the overall
severity of the penalties, the civil penalty provisions in proposed sections
29(6), 30(6), 31(6), and 35(5) may be considered 'criminal' for the purposes of
international human rights law. This means that the penalties must be
compatible with criminal process guarantees. In light of the information
provided by the minister, the committee considers that the civil penalty
provisions may be compatible with criminal process guarantees.
Strict liability offences
2.209
The bill also seeks to introduce a number of strict liability offences
for breaches of the underwater cultural heritage protection regime, which are
punishable by a pecuniary penalty of 60 penalty units.[90]
Compatibility of the measure with
the presumption of innocence
2.210
As noted above, article 14(2) of the ICCPR provides that everyone
charged with a criminal offence has the right to be presumed innocent until
proven guilty. Generally, consistency with the presumption of innocence
requires the prosecution to prove each element of a criminal offence beyond
reasonable doubt. The effect of applying strict liability to an element of an
offence is that no fault element needs to be proven by the prosecution (although
the defence of mistake of fact is available to the defendant).
2.211
Strict liability offences engage the presumption of innocence because
they allow for the imposition of criminal liability without the need to prove
fault. The statement of compatibility acknowledges the strict liability
offences engage and limit the presumption of innocence, but states that:
Application of strict
liability has been set with consideration given to the guidelines regarding the
circumstances in which strict liability is appropriate set out in A
Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.
The penalties for the strict liability offences in the Bill do not include
imprisonment, and do not exceed 60 penalty units for an individual.[91]
2.212
However, further information was required in order to determine whether
the limitation on the presumption of innocence is permissible. In this respect,
strict liability offences will not necessarily be inconsistent with the
presumption of innocence provided that they are within reasonable limits, taking
into account the importance of the objective being sought, and maintain the
defendant's right to a defence. In other words, limits on the presumption of
innocence must be reasonable, necessary and proportionate to the objective
being sought.
2.213
The committee therefore sought
the advice of the minister as to the compatibility of the strict liability
offences with the presumption of innocence, in particular:
-
whether the strict liability
offences are aimed at achieving a legitimate objective for the purposes of
international human rights law;
-
how the strict liability
offences are effective to achieve (that is, rationally connected to) that
objective; and
-
whether the limitation on the
presumption of innocence is proportionate to the legitimate objective of the
measure.
Assistant minister's response
2.214
The assistant minister's response states that the purpose of the strict
liability offences is to 'ensure the integrity of the regulatory regime in
order to prevent potential harm to Australia's protected underwater cultural
heritage'. This objective, in light of the broader objective of the bill to
protect Australia's underwater cultural heritage, is likely to be a legitimate
objective for the purposes of international human rights law. The introduction
of offence provisions to address non-compliance with the regime also is
rationally connected to this objective.
2.215
As to proportionality, the assistant minister's response states:
The use of strict liability is proportionate to achieve the
stated objective because the penalty amounts are within reasonable limits. As
noted in the Explanatory Memorandum to the Bill, the penalties for the strict
liability provisions in the Bill are limited to 60 penalty units for an
individual, and do not include imprisonment. Consequently, individuals who
contravene a strict liability provision of the Bill will not be subject to
unreasonable or unduly harsh penalties, taking into account the Bill's
legitimate objective of protecting and conserving Australia's underwater
cultural heritage.
Finally, the strict liability provisions of the Bill maintain
the defendant's right to a defence. This is because defence of mistake of fact
will remain available to a defendant, so that a person cannot be held liable if
he or she had an honest and reasonable belief that they were complying with
relevant legal obligations. Additionally, the existence of strict liability
also does not make any other defence unavailable to a defendant.
2.216
The further information provided from the assistant minister indicates
that the penalties are within reasonable limits and maintain the defendant's
right to a defence. Having regard to the further information provided by the
assistant minister, the strict liability offences are likely to be compatible
with the presumption of innocence.
Committee response
2.217
The committee thanks the assistant minister for her response and
has concluded its examination of this issue.
2.218
The committee considers that the strict liability offences are
likely to be compatible with the presumption of innocence.
Various instruments made under the Autonomous Sanctions Act 2011[92]
Purpose |
Amends the Autonomous
Sanctions Regulations 2011 |
Portfolio |
Foreign Affairs |
Authorising legislation |
Autonomous Sanctions Act
2011 |
Last day to disallow |
[F2018L00049]: 15 sitting
days after tabling (tabled Senate 5 February 2018)
[F2017L01063] and [F2017L01080]:
15 sitting days after tabling (tabled Senate 4 September 2017)
[F2017L01592]: 15 sitting
days after tabling (tabled Senate 8 February 2018)
[F2018L00102] and [F2018L00108]:
15 sitting days after tabling (tabled Senate 15 February 2018)
[F2018L00099], [F2018L00101]
and [F2018L00100]: 15 sitting days after tabling (tabled Senate 14 February
2018) |
Rights |
Multiple rights (see Appendix
2) |
Previous reports |
3 & 4 of 2018 |
Status |
Concluded examination |
Background
2.219
The committee first reported on the instruments in its Report 3 of
2018, and requested a response from the Minister for Foreign Affairs by 11
April 2018.[93] The minister's response to the committee's inquiries was received on
27 April 2018 and discussed in Report 4 of 2018.[94]
2.220
The committee requested a further response from the minister by 23 May
2018.
2.221
The minister's further response to the committee's inquiries was
received on
4 June 2018. The response is discussed below and is reproduced in full at Appendix 3.
2.222
The instruments on which the committee sought the minister's advice were
a number of new instruments under the Autonomous Sanctions Act 2011 (the
Act).[95] This Act, in conjunction with the Autonomous Sanctions Regulations 2011 (the
2011 regulations) and various instruments made under those 2011 regulations,
provide the power for the government to impose broad sanctions to facilitate
the conduct of Australia's external affairs (the autonomous sanctions regime).
2.223
Initial human rights analysis of various autonomous sanctions
instruments was undertaken in 2013, and further detailed analysis (of autonomous
sanctions and of the UN Charter sanctions regime) was undertaken in 2015 and
2016.[96] This analysis stated that, as the instruments under consideration expanded or
applied the operation of the sanctions regime by designating or declaring that
a person is subject to the sanctions regime, or by amending the regime itself,
it was necessary to assess the human rights compatibility of the autonomous
sanctions regime and aspects of the UN Charter sanctions regime as a whole when
considering these instruments. A further response was therefore sought
from the minister, which was considered in the committee's Report 9 of 2016.[97] The committee concluded its examination of various instruments and made a
number of recommendations to assist the compatibility of the sanctions regime
with human rights.[98]
'Freezing' of designated person's assets and prohibitions on travel
2.224
Each of the new instruments designates and declares persons for the
purpose of the 2011 regulations. Persons are designated and declared where the
Minister for Foreign Affairs is satisfied that doing so will facilitate the
conduct of Australia's relations with other countries or with entities or
persons outside of Australia, or will otherwise deal with matters, things or
relationships outside Australia.[99] The 2011 regulations set out the countries and activities for which a person or
entity can be designated or declared.[100] For example, the Autonomous Sanctions (Designated Persons and Entities –
Democratic People's Republic of Korea) Amendment List 2017 (No. 2) [F2017L01063]
designates and declares certain persons or entities for the purposes of the
2011 regulations on the basis that the Minister for Foreign Affairs is
satisfied that the person or entity is assisting in the violation or evasion by
the Democratic People's Republic of Korea (DPRK) of specified United Nations
(UN) Security Council Resolutions.
2.225
The effect of the designations and declarations in each of the
instruments is that the listed persons:
- are subject to financial sanctions such that it is an offence for
a person to make an asset directly or indirectly available to, or for the
benefit of, a designated person.[101] A person's assets are therefore effectively 'frozen' as a result of being
designated; and
- are subject to a travel ban to prevent the persons travelling to,
entering or remaining in Australia.
2.226
The autonomous sanctions regime provides that the minister may grant a
permit authorising the making available of certain assets to a designated
person.[102] An application for a permit can only be made for basic expenses, to satisfy a
legal judgment or where a payment is contractually required.[103] A basic expense includes foodstuffs; rent or mortgage; medicines or medical
treatment; public utility charges; insurance; taxes; legal fees and reasonable
professional fees.[104]
Compatibility of the designations
and declarations with multiple human rights
2.227
The statement of compatibility for each of the instruments states that
the instruments are compatible with human rights and freedoms. However, the
statements of compatibility provide only a broad description of the operation
and effect of each instrument, and none provide any substantive analysis of the
rights and freedoms that are engaged and limited by the instruments. This is
the case notwithstanding that committee reports have previously raised
significant human rights concerns in relation to such instruments on a number
of previous occasions.
2.228
The initial human rights analysis noted that aspects of the sanctions
regimes may operate variously to both limit and promote human rights. However, consistent
with committee practice to comment by exception, the current and previous
examination of Australia's sanctions regimes has been, and is, focused solely
on measures that impose restrictions on individuals.
2.229
The committee has previously noted that the autonomous sanctions regime
engages and may limit multiple human rights, including:
-
the right to privacy;
- the right to a fair hearing;
-
the right to protection of the family;
-
the right to an adequate standard of living;
- the right to freedom of movement;
- the prohibition against non-refoulement; and
- the right to equality and non-discrimination.
2.230
Further analysis of the rights engaged by the current instruments is set
out below.
2.231
The committee further noted that the analysis is undertaken in relation
to the human rights obligations owed to individuals located in Australia. The
committee is unaware whether any of the designations or declarations made under
the autonomous or UN Charter sanctions regime has affected individuals living
in Australia (although as at 21 June 2018 the consolidated list of individuals
subject to sanctions currently includes two Australian citizens who have been
delegated pursuant to the UN Charter sanctions regime).[105] The analysis below therefore provides an assessment of whether the amendments
to the autonomous sanctions regime introduced by the instruments could breach
the human rights of persons to whom Australia owes such obligations,
irrespective of whether there have already been instances of individuals in
Australia affected by these measures.
Right to privacy, right to a fair
hearing, right to protection of the family, right to an adequate standard of
living and the right to freedom of movement
Right to privacy
2.232
Article 17 of the International Covenant on Civil and Political Rights
(ICCPR) prohibits arbitrary or unlawful interference with an individual's
privacy, family, correspondence or home. The designation and declaration of a
person under the autonomous sanctions regimes is a significant incursion
into a person's right to personal autonomy in one's private life (within the
right to privacy). In particular, the freezing of a person's assets and the
requirement for a designated person to seek the permission of the minister to
access their funds for basic expenses imposes a limit on that person's right to
a private life, free from interference by the state.
2.233
Further, the designation process under the autonomous sanctions regimes
limits the right to privacy of close family members of a designated person. As
noted above, once a person is designated under either sanctions regime, the
effect of designation is that it is an offence for a person to directly or
indirectly make any asset available to, or for the benefit of, a designated
person (unless it is authorised under a permit to do so). This could mean that
close family members who live with a designated person will not be able to
access their own funds without needing to account for all expenditure, on the
basis that any of their funds may indirectly benefit a designated person (for
example, if a spouse's funds are used to buy food or public utilities for the
household that the designated person lives in).
Right to a fair hearing
2.234
The right to a fair hearing is protected by article 14 of the ICCPR. The
right applies both to criminal and civil proceedings, to cases before both
courts and tribunals and to military disciplinary hearings. The right applies
where rights and obligations, such as personal property and other private
rights, are to be determined. In order to constitute a fair hearing, the
hearing must be conducted by an independent and impartial court or tribunal,
before which all parties are equal, and have a reasonable opportunity to
present their case. Ordinarily, the hearing must be public, but in certain
circumstances, a fair hearing may be conducted in private. The committee's
previous human rights analysis of the autonomous sanctions regimes noted that
the designation and declaration process under the sanctions regimes limits the
right to a fair hearing because it does not provide for merits review of the
minister's designation or declaration under the autonomous sanctions regime
before a court or tribunal.[106]
Right to protection of the family
2.235
The right to respect for the family is protected by articles 17 and 23
of the ICCPR and article 10 of the International Covenant on Economic, Social
and Cultural Rights (ICESCR). An important element of protection of the family
is to ensure family members are not involuntarily separated from one another.
Laws and measures which prevent family members from being together, impose long
periods of separation or forcibly remove children from their parents, will
therefore engage this right. A person who is declared under the autonomous
sanctions regime for the purpose of preventing the person from travelling to,
entering or remaining in Australia will have their visa cancelled pursuant to
the Migration Regulations 1994.[107] This makes the person liable to deportation which may result in that person
being separated from their family, which therefore engages and limits the right
to protection of the family.
Right to an adequate standard of
living
2.236
The right to an adequate standard of living is guaranteed by article 11
of the ICESCR and requires state parties to take steps to ensure the
availability, adequacy and accessibility of food, clothing, water and housing
for all people in Australia. The imposition of economic sanctions on a
person engages and limits this right, as persons subject to such sanctions will
have their assets effectively frozen and may therefore have difficulty paying
for basic expenses.[108]
Right to freedom of movement
2.237
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'. 'Own country' is a concept which
encompasses not only a country where a person has citizenship but also one
where a person has strong ties, such as long standing residence, close personal
and family ties and intention to remain, as well as the absence of such ties
elsewhere.[109] As noted in the initial analysis, the power to cancel a person's visa that is
enlivened by designating or declaring a person under the autonomous sanctions
regime may engage and limit the freedom of movement. This is because a person's
visa may be cancelled (with the result that the person may be deported) in
circumstances where that person has strong ties to Australia such that
Australia may be considered their 'own country' for the purposes of
international human rights law, despite that person not holding formal
citizenship.
Limitations on human rights
2.238
Each of these rights may be subject to permissible limitations under
international human rights law. In order to be permissible, the measure must
seek to achieve a legitimate objective and be reasonable, necessary and
proportionate to achieving that objective. In the case of executive powers
which seriously disrupt the lives of individuals subjected to them, the
existence of safeguards is important to prevent arbitrariness and error, and
ensure that the powers are exercised only in the appropriate circumstances.
2.239
The committee has previously accepted that the use of international
sanctions regimes to apply pressure to governments and individuals in order to
end the repression of human rights may be regarded as a legitimate objective
for the purposes of international human rights law.[110] However, it has expressed concerns that the sanctions regimes may not be
regarded as proportionate to their stated objective, in particular because of a
lack of effective safeguards to ensure that the regimes, given their serious
effects on those subject to them, are not applied in error or in a manner which
is overly broad in the individual circumstances.
2.240
For example, the previous human rights analysis raised concerns that the
designation or declaration under the autonomous sanctions regime can be solely
on the basis that the minister is 'satisfied' of a number of broadly defined
matters,[111]
and that there is no provision for merits review before a court or tribunal of
the minister's decision. In response to previous questions from the committee
in relation to these issues, the minister noted that the decisions were subject
to judicial review under the Administrative Decisions (Judicial Review) Act
1977 (ADJR Act) and under common law.[112] This appears to be one safeguard available under general law insofar as it does
secure the minimum requirement that the minister act in accordance with the
legislation.
2.241
However, as previously noted by the committee, the effectiveness of
judicial review as a safeguard within the sanctions regimes relies, in
significant part, on the clarity and specificity with which legislation
specifies powers conferred on the executive. The scope of the power to
designate or declare someone is based on the minister's satisfaction in
relation to certain matters which are stated in broad terms. It was noted that
this formulation limits the scope to challenge such a decision on the basis of
there being an error of law (as opposed to an error on the merits) under the
ADJR Act or at common law. As the committee has previously explained, judicial
review will generally be insufficient, in and of itself, to operate as a
sufficient safeguard for human rights purposes in this context.[113]
2.242
The previous human rights analysis has also raised concerns that the minister
can make the designation or declaration without hearing from the affected
person before the decision is made. In response to previous questions from the
committee, the minister indicated that the designation or declaration without
hearing from the affected person was necessary to ensure the effectiveness of
the regime, as prior notice would effectively 'tip off' the person and could lead
to assets being moved off-shore. However, the previous human rights analysis
noted that there may be less rights-restrictive measures available, such as
freezing assets on an interim basis until complete information is available
including from the affected person.[114]
2.243
There is also no requirement to report to parliament setting out the
basis on which persons have been declared or designated and what assets, or the
amount of assets that have been frozen. In response to previous questions from
the committee, the minister stated that public disclosure of assets frozen
could risk undermining the administration of the sanctions regimes. However,
the previous human rights analysis noted that it was difficult to accept the
minister's justification as information identifying declared or designated
persons is already publicly available on the Consolidated List of individuals
subject to sanctions, which is available on the Department of Foreign Affairs
and Trade website.[115]
2.244
Previous human rights analysis has also noted that once the decision is
made to designate or declare a person, the designation or declaration remains
in force for three years and may be continued after that time (such as occurs
through these instruments). There is no requirement that if circumstances
change or new evidence comes to light the designation or declaration will be
reviewed before the three year period ends. In response to previous questions
from the committee on this issue, the minister noted that designations and
declarations may be reviewed at any time and persons may request revocation if
circumstances change or new evidence comes to light. While this is true,
without an automatic requirement of reconsideration if circumstances change or
new evidence comes to light, a person may remain subject to sanctions
notwithstanding that the designation or declaration may no longer be required.[116] This is of particular relevance in the context of the Autonomous Sanctions
(Designated and Declared Persons – Former Federal Republic of Yugoslavia)
Continuing Effect Declaration and Revocation Instrument 2018 [F2018L00099],
which renews the designation and declarations against many persons for a
further three years on the basis of (among other things) their indictment
before the International Criminal Tribunal for the former Yugoslavia (ICTY).
However, the ICTY closed on 31 December 2017 with remaining appeals being
determined by the UN Mechanism for International Criminal Tribunals (MICT),
which raised questions as to whether the continued application of sanctions
against those persons because of their status as (former) ICTY indictees is
proportionate.
2.245
Similarly, a designated or declared person will only have their
application for revocation considered once a year. If an application for review
has been made within the year, the minister is not required to consider it. The
minister has previously stated that this requirement is intended to ensure the
minister is not required to consider repeated, vexatious revocation requests.[117] However, the previous human rights analysis noted that the provision gives the
minister a discretion that is broader than merely preventing vexatious
applications and the current requirement may affect meritorious applications
for revocation.[118]
2.246
There is also no requirement to consider whether applying the ordinary
criminal law to a person would be more appropriate than freezing the person's
assets on the decision of the minister. The minister has previously stated that
the imposition of targeted financial sanctions is considered, internationally,
to be a preventive measure that operates in parallel to complement the criminal
law.[119] The previous human rights analysis accepted that such measures may be
preventive, but also noted that without further guidance from the minister
(such as when and in what circumstances complementary targeted action would be
needed) that there appeared to be a risk that such action may not be the least
restrictive of human rights in every case.[120]
2.247
The previous human rights analysis also raised concerns relating to the
minister's unrestricted power to impose conditions on a permit to allow access
to funds to meet basic expenses. While the minister has previously stated that
such discretion is appropriate, the previous human rights analysis expressed
concern as the broad discretion to impose conditions on access to money for
basic expenses does not appear to be the least rights-restrictive way of
achieving the legitimate objective.[121]
2.248
The previous human rights analysis also raised concerns that there is no
requirement that in making a designation or declaration the minister must take
into account whether doing so would be proportionate with the anticipated
effect on an individual's private and family life. The committee has previously
noted that this absence of safeguards in relation to family members raises
concerns as to the proportionality of the measure.[122]
2.249
Further, limited guidance is available under the Act or 2011 regulations
or any other publicly available document setting out the basis on which the
minister decides to designate or declare a person.[123] The previous human rights analysis noted that this lack of clarity raised
concerns as to whether the regime represents the least rights-restrictive way
of achieving its objective, as the scope of the law is not made evident to
those who may fall within the criteria for listing and who may seek in good
faith to comply with the law.[124]
2.250
The European Court of Human Rights decision in Al-Dulimi and Montana
Management Inc. v Switzerland provides further useful guidance on the interaction
between UN Security Council sanctions and international human rights law.[125] This case confirmed the presumption that UN Security Council Resolutions are to
be interpreted on the basis that they are compatible with human rights. The
European Court of Human Rights found that domestic courts should have the
ability to exercise scrutiny so that arbitrariness can be avoided. This case
also indicated that, even in circumstances where an individual is specifically
listed by the UN Security Council Committee, individuals should be afforded a
genuine opportunity to submit evidence to a domestic court to seek to show that
their inclusion on the UN Security Council list was arbitrary. That is, the
state is still required to afford fair hearing rights in these circumstances.
In light of this case and the concerns discussed above, the initial human
rights analysis stated that there are concerns that the current Australian
model of autonomous sanctions regimes may be incompatible with the right to a
fair hearing.
2.251
The committee has also previously discussed comparative models of
sanctions regimes which provide safeguards not present in the Australian
autonomous sanctions regime, including the United Kingdom (UK).[126] The committee noted that
safeguards in comparable asset-freezing regimes are highly relevant indicia
that there are more proportionate methods of achieving the legitimate objective
of the Australian autonomous sanctions regimes. That is, it would appear that a
less rights-restrictive approach is reasonably available.
The prohibition on non-refoulement
and the right to an effective remedy
2.252
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.[127] Non-refoulement obligations are absolute and may not be subject to any
limitations.
2.253
Independent, 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.
2.254
As noted earlier, an Australian visa holder who is declared under the
autonomous sanctions regime for the purpose of preventing the person from
travelling to, entering or remaining in Australia will have their visa
cancelled pursuant to the Migration Regulations 1994.[128] It was not clear whether this provision would apply to visa holders who have
been found to engage Australia's non-refoulement obligations.
2.255
Section 198 of the Migration Act requires an immigration officer to
remove an unlawful non-citizen (which includes persons whose visas have been cancelled)
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
thus 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.[129]
2.256
This therefore raised concerns that the declaration of a person who is
an Australian visa holder under the autonomous sanctions regime, which may
trigger the cancellation of a person's visa, in the absence of any statutory
protections to prevent the removal of persons to whom Australia owes non-refoulement obligations, may be incompatible with the obligation of non-refoulement in
conjunction with the right to an effective remedy.
Initial information sought from the
minister
2.257
In light of the human rights issues raised by the various sanctions
instruments, the committee sought the advice of the minister as to the
compatibility of the sanctions instruments with these rights.
2.258
In particular, the committee sought the advice of the minister as to the
compatibility of this measure with the prohibition on non-refoulement in
conjunction with the right to an effective remedy. This includes any safeguards
in place to ensure that persons to whom Australia owes protection obligations
will not be subject to refoulement as a consequence of being declared under the
regime.
2.259
The committee also sought the advice of the minister as to the
compatibility of the measures with the right to privacy, right to a fair
hearing, right to protection of the family, right to an adequate standard of
living and the right to freedom of movement. In particular, the committee
sought the advice of the minister as to how the designation and declaration of
persons pursuant to the autonomous sanctions regime is a proportionate limit on
these rights, having regard to the matters set out in [2.232] to [2.251] above.
2.260
The committee also drew the minister's attention to the committee's
recommendations in Report 9 of 2016 that consideration be given to the
measures which have been implemented in relation to comparable regimes, to
ensure compatibility with human rights.
2.261
The committee also sought the advice of the minister as to whether a
substantive assessment of the human rights engaged and limited by the
autonomous sanctions regime will be included in future statements of
compatibility to assist the committee fully to assess the compatibility of the
measure with human rights in future.[130]
Minister's first response
Minister's first response -
Compatibility of the measure with the prohibition on non-refoulement and the
right to an effective remedy
2.262
In relation to the compatibility of the measures with the obligation of non-refoulement,
the minister's response stated:
Under the Autonomous Sanctions Regulations 2011, I may
declare a person who meets the criteria specified in regulation 6 for the
purpose of preventing the person from travelling to, entering or remaining in
Australia. A 'declared person' holding an Australian visa may therefore have
their visa cancelled by the Minister for Home Affairs under the Migration
Regulations 1994, regulation 2.43.
However, under regulation 2.43(1)(aa) of the Migration
Regulations 1994, the Minister for Home Affairs cannot cancel a visa that
is classified as a 'relevant visa'. Regulation 2.43(3) of the Migration
Regulations 1994 provides that a 'relevant visa' includes, among others, a
protection, refugee, or humanitarian visa. I note that under the Autonomous
Sanctions Regulations 2011, I may also waive the operation of a declaration
that was made for the purpose of preventing the person from travelling to,
entering or remaining in Australia, on the grounds that it would be in the
national interest, or on humanitarian grounds. This decision is subject to
natural justice requirements, and may be judicially reviewed.
I also note the Committee's comments in relation to section
197C of the Migration Act 1958. As outlined in the Explanatory
Memorandum to this section at the time of its introduction, Australia will
continue to meet its non-refoulement obligations through mechanisms other than
the removal powers in section 198 of the Migration Act 1958, including
through the protection visa application process, and through the use of the
Minister's personal powers in the Migration Act 1958. These mechanisms
ensure that non-refoulement obligations are addressed before a person becomes
ready for removal under section 198.
2.263
The minister's response helpfully provided information as to the
operation of the Migration Regulations in relation to persons who are declared
under section 6(1)(b) or 2(b) of the 2011 regulations. In particular, the
minister's response clarified that persons on protection, refugee or
humanitarian visas could not have their visa cancelled under section
2.43(1)(aa) of the Migration Regulations.[131] This indicated that, in practical terms, there is less risk of persons to whom
Australia owes protection obligations having their visa cancelled as a
consequence of the minister's exercise of power to declare persons under the
2011 regulations. However, the classes of 'relevant visas' that cannot be
cancelled under section 2.43(1)(aa) do not include all types of visas that are
granted to persons to whom Australia owes protection obligations. For example,
Safe Haven Enterprise visas (subclass 790), which apply to persons who arrived
in Australia illegally, engage Australia's protection obligations and intend to
work and/or study in regional Australia,[132] are not included within the definition of 'relevant visa' in section 2.43(3).
Similarly, there may be persons on other types of visas for whom deportation to
their country of origin upon cancellation of their visa would mean the person
faces a real risk that they would face persecution, torture or other serious
forms of harm.
2.264
For persons who may have their visa cancelled under section 2.43 of the
Migration Regulations, the response identified the minister's power to waive
the operation of the declaration and the use of the immigration minister's
personal powers in the Migration Act 1958 as a form of safeguard. The
minister also pointed to the human rights compatibility assessment in the
explanatory memorandum to the bill which introduced section 197C of the
Migration Act.[133] However, it was noted that the mechanisms referred to are entirely at the
discretion of the relevant minister. While the minister identified that
decisions by the minister to waive the operation of a declaration may be
judicially reviewed, effective and impartial review by a court or tribunal of
decisions, including merits review in the Australian context, is
integral in giving effect to non-refoulement obligations.[134]
2.265
Further, the committee has previously concluded that section 197C of the
Migration Act is incompatible with Australia's non-refoulement obligations, and
specifically noted the deficiency of mere administrative (rather than
statutory) safeguards:
This statement suggests that visa processes and the
minister's discretionary and non-compellable powers to grant a visa are
sufficient to enable Australia to comply with its non-refoulement obligations.
However, the committee considers that, while the form of administrative arrangements
is a matter for the Australian government to determine, non-reviewable, discretionary
and non-compellable powers in relation to visa protection claims do not meet
the requirement of independent, effective and impartial review of
non-refoulement decisions, and are in breach of Australia’s non-refoulement
obligations under the ICCPR and the CAT.[135]
2.266
Therefore, while the risk of persons to whom Australia owes protection
obligations being returned contrary to the prohibition on non-refoulement is
low, to the extent that there is a risk, the administrative safeguards
identified by the minister are not sufficient safeguards to enable Australia to
comply with its non-refoulement obligations. This is because these arrangements
do not meet the requirements of independent, effective and impartial review of
non-refoulement decisions.
2.267
The committee noted the information from the minister that persons on
'relevant visas' (including protection, refugee or humanitarian visas) cannot
have their visa cancelled under section 2.43(1)(aa) of the Migration
Regulations following the exercise of the minister's power to declare persons
under the 2011 regulations.
2.268
To the extent that there remains a risk that persons to whom Australia
owes protection obligations who are not on 'relevant visas' may have their visa
cancelled if they are declared persons under the 2011 regulations, the
committee reiterated its previous view that the safeguards to prevent
non-refoulement of persons to whom Australia owes protection obligations
are incompatible with Australia's obligations under the ICCPR and CAT because
they do not meet the requirements of independent, effective and impartial
review of non-refoulement decisions.
Minister's first response - Right
to privacy, right to a fair hearing, right to protection of the family, right
to an adequate standard of living and the right to freedom of movement
2.269
In relation to the remaining human rights discussed above, the
minister's first response did not substantively address the committee's
inquiries but instead provided the following general information:
The Government is committed to ensuring the human rights
compatibility of Australia's sanctions regime. I have previously addressed in
some detail the issues raised in the Report in my responses to the Committee in
2015 and 2016. Without repeating the detail of those responses, it remains the
Government's view that sanctions measures are proportionate and appropriate in
targeting those responsible for repressing human rights and democratic freedoms
or to end regionally or internationally destabilising actions.
Modern sanctions regimes impose highly targeted measures
designed to limit the adverse consequences of a situation of international
concern, to seek to influence those responsible for it to modify their
behaviour, and to penalise those responsible. Australia does not impose sanction
measures on individuals lightly.
I continue to be satisfied that Australia's implementation of
autonomous sanctions is proportionate to the objectives of each regime. I note
that the Department of Foreign Affairs and Trade (DFAT) keeps the operation of
Australia's sanction regimes under regular review.
2.270
While the minister referred to previous responses provided to the
committee in 2015 and 2016, those responses related to different sanctions
instruments. The Human Rights (Parliamentary Scrutiny) Act 2011 requires
a statement of compatibility to include an assessment of whether the
legislative instrument is compatible with human rights,[136] and this has not occurred in relation to the statements of compatibility
accompanying the various instruments that are the subject of this analysis. As
noted in the Committee's Guidance Note 1, the committee considers that
statements of compatibility are essential to the examination of human rights in
the legislative process, and should identify the rights engaged by the legislation,
and should provide a detailed and evidence-based assessment of the measures
against the limitation criteria where applicable. In the absence of such
information in the statement of compatibility, the committee may seek
additional information from the proponent of the instrument and it is the
committee's usual expectation that the minister's response would substantively
address the committee's inquiries. In other words, the committee requires a
more detailed assessment of the human rights engaged by the instruments beyond
the minister's statement of satisfaction with human rights compatibility.
2.271
Finally, in relation to the statements of compatibility for the
instruments, the minister's first response stated:
I note the Committee's concerns that the statement of
compatibility with human rights (SCHR) in the Instruments does not engage in
any substantive analysis of the rights and freedoms that are engaged and
limited by the Instruments.
As I have indicated above, I consider that the Instruments
and the broader sanctions framework is proportionate and compatible with human
rights. I have asked DFAT to consider whether additional detail can be included
in future statements.
2.272
The committee noted that the minister's response did not substantively
address the committee's inquiries in relation to the compatibility of the
instruments with multiple rights.
2.273
The committee therefore reiterated its previous request for advice from
the minister. The committee also noted the minister has requested the
Department of Foreign Affairs and Trade to include additional detail in future
statements of compatibility, and drew the minister and department's attention
to the committee's
Guidance Note 1.
Minister's second response
2.274
The minister's second response firstly notes the committee's
recommendations in Report 9 of 2016 of changes that could be made to
make the sanctions regime more human rights-compliant, having regard to
comparable international sanctions regimes. The minister's response notes that
'the Government continues to be satisfied that Australia's autonomous sanctions
regime is compatible with human rights' and that 'the Government has no
immediate plans to adopt the measures proposed by the Committee', but that it
will keep the sanctions regime under review.
2.275
The minister's second response also reiterates the legitimate objectives
of the sanctions regimes:
It is the Government's view that modern sanctions regimes
impose highly targeted measures in response to situations of international
concern. This includes the grave repression of human rights or democratic
freedoms of a population by a government, or the proliferation of weapons of
mass destruction or their means of delivery, or internal or international armed
conflict. Thus, autonomous sanctions pursue legitimate objectives, and have
appropriate safeguards in place to ensure that that any limitation of human
rights engaged by the imposition of sanctions is justified.
2.276
As noted previously, it is accepted that the sanctions regime pursues a
legitimate objective for the purposes of international human rights law.
Compatibility of the measures with
the right to a fair hearing
2.277
In relation to the compatibility of the measures with the right to a
fair hearing, the response states that the 'limitation on access to merits
review in this context is reasonable as it reflects the seriousness of the
foreign policy and national security considerations involved, as well as the
nature of the material relied upon'. The response further states:
Further, while merits review is unavailable for a decision to
designate and/or declare a person under the Regulations, there are clear
procedures for requesting revocation of designations and declarations, and
judicial review is available under the Administrative Decisions (Judicial
Review) Act 1976 (the ADJR Act).
In addition, there is a three-yearly review process for
targeted financial sanctions and travel bans that ensures that effective
safeguards and controls are in place. This three-yearly review process includes
a public consultation period, which invites submissions from the public to
inform the assessment of whether a person continues to meet the criteria for
designation and declaration under regulation 6 of the Regulations.
Finally, a person may apply at any time requesting the revocation
of their designation or declaration in the event of changed circumstances or if
new evidence comes to light. Failure to make a decision or unreasonable delay
following such a request may be grounds for judicial review. Finally, the
Minister may review and/or revoke designations and declarations at any time on
her own initiative, including when circumstances change or new evidence comes
to light.
2.278
As noted in previous analysis, the availability of judicial review to
secure the minimum requirement that the minister act in accordance with the law
is one relevant safeguard available. However, as noted in previous analysis,
the effectiveness of judicial review as a safeguard within the sanctions
regimes relies, in significant part, on the clarity and specificity with which
legislation specifies powers conferred on the executive. The scope of the power
to designate or declare someone is based on the minister's satisfaction in
relation to certain matters which are stated in broad terms.[137] It is noted that this formulation limits the scope to challenge such a decision
on the basis of there being an error in law (as opposed to an error on the
merits) under the ADJR Act or at common law.
2.279
It is also not clear that the request for revocation process and
three-yearly review process outlined in the minister's response would overcome
the fair hearing concerns raised in previous analysis. In particular, a
designated or declared person will only have their application for revocation
considered once per year and the minister is not required to consider an
application if it is made within the year. Similarly, while the minister may
review or revoke designations or declarations at their own initiative, there is
no requirement to reconsider or review the designation within the three-yearly
review period if circumstances change or new evidence comes to light, raising
concerns that a person may remain subject to sanctions notwithstanding the
circumstances have changed.
2.280
More broadly, as noted in the previous analysis, the European Court of
Human Rights has considered that persons subject to sanctions should be
'afforded at least a genuine opportunity to submit appropriate evidence to a
court, for examination on the merits, to seek to show their inclusion on the
impugned lists had been arbitrary'.[138] The Court of Justice of the European Union has similarly held that when
considering the compatibility of judicial review of sanctions decisions in
light of the right to an effective remedy and to a fair trial,[139] that 'judicial review cannot be restricted to an assessment of the cogency in
the abstract of the reasons relied on, but must concern whether those reasons...[are]
substantiated'.[140] It is also noted that the UK Joint Committee on Human Rights has recently
expressed concern about the restriction of court reviews of sanctions to
judicial review.[141]
2.281
For these reasons, serious concerns remain as to whether the autonomous
sanctions regime is compatible with the right to a fair hearing.
Compatibility of the measures with
the right to privacy
2.282
In relation to the compatibility of the designations and declarations of
persons under the 2011 regulations with the right to privacy, the minister's
second response states:
As noted above, an interference with privacy will not be
arbitrary where it is reasonable, necessary and proportionate in the individual
circumstances.
The imposition of targeted financial sanctions and travel
bans is reasonable. The Minister uses predictable, publicly available criteria
when designating or declaring a person as being subject to such measures. These
criteria are designed to capture only those persons the Minister is satisfied
are involved in activities giving rise to situations of international concern,
as set out in regulation 6 of the Regulations.
Targeted financial sanctions and travel bans under the
autonomous sanctions regime are necessary and proportionate. They are only
imposed, by definition, in response to situations of international concern,
including where there are, or have been, human rights abuses, weapons proliferation
(in defiance of UN Security Council resolutions), indictment in international
criminal tribunals, activities that seriously undermine democracy, and threats
to the sovereignty and territorial integrity of a State. Given the seriousness
of these issues, the Government considers that targeted financial sanctions and
travel bans are the least rights-restrictive ways to respond to situations of
international concern.
The Government's position is that any interference with the
right to privacy as a consequence of the operation of the autonomous sanctions
regime is not unlawful or arbitrary.
2.283
It is acknowledged that in an individual case, when accompanied by
sufficient safeguards, the imposition of sanctions on an individual may
constitute a proportionate limitation on a person's right to a private and home
life. For example, in Bouchra Al Assad v Council of the European Union,
the General Court of the European Union held that the freezing of a person's
funds pursuant to targeted sanctions did not constitute a disproportionate
impact on a person's private life, having regard to the 'primary importance of
protecting the civilian populations in Syria', the availability of periodic
review, and the possibility of authorising funds in order to meet basic needs or
certain commitments.[142]
2.284
By contrast, before the European Court of Human Rights in Nada v
Switzerland, the complainant was subject to a travel ban pursuant to UN
sanctions and was restricted access to Swiss territory, the effect of which was
that he was confined to an Italian enclave within Swiss territory. The Court
considered that preventing the applicant from leaving the confined area
impacted the person's ability to exercise their right to maintain contact with
family, which was an interference with the applicant's right to respect for his
private life. The Court found that, notwithstanding the legitimate aims pursued
by the sanctions, the state's failure to take 'all possible measures to adapt
the sanctions regime to the applicant's individual situation' meant that the
interference was not proportionate.[143]
2.285
To that end, whether the imposition of sanctions on an individual
constitutes a proportionate limitation on the right to a private life will
depend on the availability of other safeguards, including the availability of
review. As noted above, there are serious concerns as to whether the current
mechanisms for review of decisions relating to the sanctions regime are
sufficient from the perspective of the right to a fair hearing. There is a
risk, therefore, that the absence of sufficient safeguards may result in the
autonomous sanctions regime being incompatible with the right to privacy.
2.286
The minister's response does not address the committee's specific
concern as to the impact of the designation process on the right to privacy of
close family members of a designated person who may not be able to access their
own funds without needing to account for all expenditure (due to the
possibility that use of their funds may indirectly benefit a designated person,
which would be an offence).[144] This remains a concern with respect to the personal autonomy of family members
of designated and declared persons.
2.287
It is noted that UN Human Rights Committee jurisprudence confirms the
risk that the domestic implementation of sanctions regimes may breach the right
to privacy. In Sayadi and Vinck v Belgium, the UN Human Rights
Committee found a violation of Article 17 of the ICCPR in circumstances where
the complainants' names were on a UN sanctions list notwithstanding the dismissal
of criminal investigations against them and attempts by the state party to
request removal of the names from the list. The UN Human Rights Committee found
that Belgium (as the state party responsible for the presence of the authors'
names on the list) violated Article 17, due in part to the fact that 'the
dissemination of personal information about the authors constitutes an attack
on their honour and reputation, in view of the negative association that some
persons could make between the authors' name and the title of the sanctions
list’.[145]
Compatibility of the measures with
the right to protection of the family
2.288
As to the compatibility of the measures with the right to protection of
the family, the response states:
As the listing criteria in regulation 6 are drafted by
reference to specific foreign countries, it is rare, as a practical matter,
that a person declared for a travel ban will have immediate family in Australia
and face deportation from Australia.
To the extent that a person has known connections to
Australia, the Department of Foreign Affairs and Trade (DFAT) is able to
consult with relevant agencies in advance of a designation and declaration to
determine the possible impacts of the designation and declaration on any family
members in Australia.
To the extent that the travel bans imposed pursuant to the
Instruments engage and limit the right to protection of the family in a
particular case, the Regulations allow the Minister to waive the operation of a
travel ban on the grounds that it would be either: (a) in the national
interest; or (b) on humanitarian grounds. This provides a mechanism to address
circumstances in which issues such as the possible separation of family members
in Australia are involved. In addition, this decision may be judicially
reviewed.
Finally, were such a separation to take place, for the
reasons outlined in relation to Article 17 above, the position of the
Australian Government is that such a separation would be justified in the
circumstances of the individual case.
2.289
The minister's response helpfully provides information as to the practical
operation of the sanctions regime and the process undertaken by DFAT to
ascertain the impact on family members, and it is acknowledged that as a
practical matter the impact on family members in Australia would be rare. The
possibility of waiving the travel ban on humanitarian grounds or in the
national interest to protect a family in an individual case is also a relevant
safeguard.
2.290
As with the right to privacy discussed above, whether the imposition of
a travel ban would constitute a proportionate limitation on the right to
protection of the family will depend on the availability of other safeguards,
such as the availability of review. For the reasons discussed above in relation
to the right to a fair hearing, the availability of judicial review of a
decision to waive a travel ban may not, of itself, be a sufficient safeguard.
Further, as with the right to privacy, there is a risk that the absence of
sufficient safeguards may result in the autonomous sanctions regime being
incompatible with the right to protection of the family.
Compatibility of the measures with
the right to an adequate standard of living
2.291
In relation to the compatibility of the measures with the right to an
adequate standard of living, the minister states:
The Government considers any limitation on the enjoyment of
Article 11(1), to the extent that it occurs, is justified. The Regulations
allow for any adverse impacts on family members as a consequence of targeted
financial sanctions to be mitigated. As the Committee notes, the Regulations
state that the Minister may grant a permit for the payment of basic expenses
(among others) if it is in the national interest to do so. The objective of the
basic expenses exemption is, in part, to enable the Australian Government to
administer the sanctions regime in a manner compatible with relevant human
rights standards.
As noted above, DFAT consults relevant agencies in advance of
a designation and declaration of a person with known connections to Australia
to determine the possible impacts of the designation and declaration on any
family members in Australia. Where such impacts are identified, the Minister
may issue a permit to ensure that the asset freeze does not adversely affect any
person who does not meet the criteria for designation.
The Government considers that the permit process is a
flexible and effective safeguard on any limitation to the enjoyment of Article
11(1).
2.292
The ability of the minister to grant a permit for the payment of basic
expenses is an important safeguard. However, as also indicated in the
minister's response, this safeguard is qualified by the requirement that the
minister must not grant such a permit unless the minister is satisfied that it
would be in the national interest to do so.[146] The minister may also make the permit subject to conditions.[147]
As the committee has previously noted, this discretion of the minister does not
appear to be the least rights-restrictive way of achieving the legitimate
objective.[148]
Right to freedom of movement
2.293
In relation to the compatibility of the measures with the right to
freedom of movement, the minister states:
To the extent that Article 12(4) is engaged in an individual
case, such that a person is prevented from entering Australia as their 'own
country', the Government's position is that the imposition of the travel ban
would be justified. As set out above in relation to Article 17 of the ICCPR,
travel bans are a reasonable and proportionate means of achieving the legitimate
objectives of Australia's autonomous sanctions regime.
Travel bans are reasonable because they are only imposed on
persons who the Minister is satisfied are responsible for giving rise to
situations of international concern. Thus, preventing a person who is, for
example, responsible for human rights abuses in Syria, from travelling to,
entering or remaining in Australia, is a reasonable means to achieve the
legitimate foreign policy objective of seeking to influence and penalising
those responsible for such abuses, and signal Australia's condemnation of such
acts. Australia's practice in this respect is consistent with likeminded
partners such as the US, the EU, and the UK.
Travel bans are proportionate because while they engage and
limit declared individuals' right to freedom of movement, they are the least
restrictive means by which to achieve the legitimate objective of influencing
and penalising those responsible for giving rise to situations of international
concern. As set out above, by denying access to international travel, travel
bans seek to influence persons who contribute to situations of international
concern, including human rights abuses and weapons proliferation.
2.294
It is acknowledged that the travel bans are in pursuit of a legitimate
objective and that they are a means to achieve the legitimate objective of
seeking to influence and penalise people responsible for human rights abuses.
However, as with the other human rights discussed above, the safeguards
currently in place in the autonomous sanctions regime may not be sufficient,
such that the limitation on freedom of movement may not be proportionate. In
this respect, the UN Human Rights Committee noted in Sayadi and Vinck v
Belgium (discussed above in relation to the right to privacy) that UN
Security Council resolutions do not prevent consideration of whether travel
bans for persons on sanctions lists are compatible with the right to freedom of
movement.[149] The UN Human Rights Committee considered that in that case the facts of the
case did not disclose that the restrictions of the authors' right to leave the
country were necessary to protect national security and public order, and
accordingly concluded there was a violation of Article 12.[150]
Overall assessment of the
compatibility of the autonomous sanctions regime with human rights
2.295
It is acknowledged that the autonomous sanctions regime is a complex
regime undertaken to give domestic effect to international obligations.
However, the committee is required to assess the instruments for compatibility
with human rights under the seven core human rights treaties to which Australia
is a party. The autonomous sanctions regime may have significant human rights
impacts on individuals and their immediate families. As such, it is important
from a human rights perspective that sanctions regimes impose only
proportionate limitations on human rights.
2.296
From the analysis above, there are serious concerns that the current
operation of the sanctions regime is not accompanied by adequate safeguards so
as to constitute a proportionate limitation on the rights discussed above.
There is therefore a serious risk of incompatibility with these rights.
Committee response
2.297
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.298
The committee notes that the information provided in the
minister's response would be useful to include in future statements of
compatibility relating to the autonomous sanctions regime.
2.299
The preceding analysis indicates that there is a risk that the
autonomous sanctions regime may be incompatible with the right to a fair
hearing, right to privacy, right to protection of the family, right to an
adequate standard of living and the right to freedom of movement.
2.300
The committee reiterates its previous comment from Report 9 of
2016 that consideration be given to the following measures that may ensure
the autonomous sanctions regime is compatible with human rights:
-
the provision of publicly available guidance in legislation
setting out in detail the basis on which the minister decides to designate or
declare a person;
-
regular reports to parliament in relation to the regimes,
including the basis on which persons have been declared or designated and what
assets, or the amount of assets, that have been frozen;
-
provision for merits review before a court or tribunal of the
minister's decision to designate or declare a person;
-
provision for merits review before a court or tribunal of an
automatic designation where an individual is specifically listed by the UN
Security Council Committee;
-
regular periodic reviews of designations and declarations;
-
automatic reconsideration of a designation or declaration if new
evidence or information comes to light;
-
limits on the power of the minister to impose conditions on a
permit for access to funds to meet basic expenses;
-
review of individual designations and declarations by the
Independent National Security Legislation Monitor;
-
provision that any prohibition on making funds available does not
apply to social security payments to family members of a designated person (to
protect those family members); and
-
consultation with operational partners such as the police
regarding other alternatives to the imposition of sanctions.
Designations or declarations in relation to specified countries
2.301
The autonomous sanctions regime allows the minister to make a
designation or declaration in relation to persons involved in some way with
(currently) eight specified countries.
Compatibility of the measure with
the right to equality and non-discrimination
2.302
The right to equality and non-discrimination provides that everyone is
entitled to enjoy their rights without discrimination of any kind, and that all
people are equal before the law and entitled without discrimination to the
equal and non‑discriminatory protection of the law. Unlawful
discrimination may be direct (that is, having the purpose of discriminating on
a prohibited ground), or indirect (that is, having the effect of discriminating
on a prohibited ground, even if this is not the intent of the measure). One of
the prohibited grounds of discrimination under international human rights law
is discrimination on the grounds of national origin and nationality.
2.303
The previous human rights analysis of the sanctions regime considered
that the designation of persons in relation to specified countries may limit
the right to equality and non-discrimination.[151] This is because nationals of listed countries may be more likely to be
considered to be 'associated with' or work for a specified government or regime
than those from other nationalities. Where a measure impacts on particular
groups disproportionately it establishes prima facie that there may be
indirect discrimination.
2.304
A disproportionate effect on a particular group may be justifiable such
that the measure does not constitute unlawful indirect discrimination if the
differential treatment is based on reasonable and objective criteria such that
it serves a legitimate objective, is rationally connected to that legitimate
objective and is a proportionate means of achieving that objective. Information
to justify the rationale for differential treatment will be relevant to this
proportionality analysis.
2.305
The committee therefore sought
the advice of the minister as to the compatibility of the measures with the
right to equality and non-discrimination.
Minister's first response
2.306
The minister's first response did not substantively respond to the
committee's concerns, as outlined at [2.269]-[2.273] above. The committee
therefore reiterated its request for advice as to the compatibility of the
measures with the right to equality and non-discrimination.
Minister's second response
2.307
As to the compatibility of the measures with the right to equality and
non-discrimination, the minister states:
The Government's position is that any differential treatment
of people as a consequence of the application of the Regulations does not
amount to discrimination pursuant to Article 26 of the ICCPR.
The Government refers the Committee to the listing criteria
in regulations 6(1) and 6(2) of the Regulations, and notes that the criteria
contained in the Regulation are reasonable and objective. They are reasonable
insofar as they list only those States and activities which the Government has
specifically determined give rise to situations of international concern. The
criteria are also objective, as they provide a clear, consistent and
objectively-verifiable reference point by which the Minister is able to make a
designation or declaration. The Regulations serve a legitimate objective, as
discussed above.
Finally, they are proportionate. As discussed above, the
Government's view is that denying access to international travel and the
international financial system are a justified and less rights-restrictive
means of achieving the aims of the Regulations. The Government does not have
information that supports the view that affected groups are vulnerable; rather,
they are people the Minister is satisfied are involved in activities giving
rise to situations of international concern. Further, there are several
safeguards, such as the availability of judicial review and regular review
processes, in place to ensure that any limitation is proportionate to the
objective being sought.
2.308
The minister’s response indicates that there may be an objective and
justifiable basis for a difference in treatment on the basis of national origin
and nationality. In relation to the question of whether this difference in
treatment is reasonable or proportionate, the minister's response relies on the
existing safeguards under the sanctions regime. For the reasons discussed
above, there are concerns as to whether those safeguards are sufficient for the
purposes of international human rights law. Accordingly, based on the
information provided it is not possible to conclude whether the designations or
declarations in relation to specified countries are compatible with the right
to equality and non-discrimination.
Committee response
2.309
The committee thanks the minister for her response and has
concluded its examination of this issue.
2.310
Noting the concerns discussed in the previous analysis as to the
adequacy of the safeguards in the sanctions regime, the committee considers
that it is not possible to conclude whether the designations or declarations in
relation to specified countries are compatible with the right to equality and
non-discrimination.
Mr Ian Goodenough MP
Chair
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