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Australian Parliamentary Joint Committee on Human Rights |
In this report the committee has examined the following bills and legislative instruments for compatibility with human rights. The committee's full consideration of legislation commented on in the report is set out at the page numbers indicated.
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Chapter 1: New and continuing matters
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Bills introduced 25 to 27 October and 7 to 10 November 2022
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23
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Bills previously deferred[2]
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1
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Bills commented on in
report[3]
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8
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Chapter 2: Concluded
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Bills committee has concluded its examination of following receipt of
ministerial response
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1
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Advice to Parliament
pp. 11-15
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Appropriation of money to fund public services
Multiple rights
Proposed government expenditure to give effect to particular policies may
engage and limit, or promote, a range of human rights, including
civil and
political rights and economic, social and cultural rights (such as the rights to
housing, health, education and social
security). The rights of people with
disability, children and women may also be engaged where policies have a
particular impact on
vulnerable groups. The statements of compatibility
accompanying these bills do not identify that any rights are engaged by the
bills.
The committee acknowledges that appropriations bills may present particular
difficulties given their technical and high-level nature,
and as such it may not
be appropriate to assess human rights compatibility for each individual measure.
However, the committee considers
the allocation of funds via appropriations
bills is susceptible to a human rights assessment directed at broader questions
of compatibility,
namely, their impact on progressive realisation obligations
and on vulnerable minorities or specific groups. The committee considers
that
statements of compatibility for future appropriations bills should contain an
assessment of human rights compatibility, that
it would benefit from a statement
of compatibility if budget measures directly impact human rights and the
measures are not addressed
elsewhere in legislation, and draws this to the
attention of the Minister for Finance and Parliament.
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No comment
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Seeking further information
pp. 16-33
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Entry requirements
Rights to health, privacy, freedom of movement, liberty and equality and
non-discrimination
This bill would empower the Agriculture Minister to make entry requirements
for people entering Australia in order to prevent the
entry or spread of
diseases or pests. This could require people to provide personal information, be
screened, or moved to locations
to carry out biosecurity risk assessments.
The committee considers that to the extent the measure would prevent the
spread of diseases or pests that may pose a risk to human
health, this would
promote the right to health, but also engages and may limit the rights to
privacy, freedom of movement and liberty
and the right to equality and
non-discrimination. Questions remain as to whether the measure is proportionate,
including what other
methods (apart from equipment) may be used to screen an
individual; what a biosecurity risk assessment of an individual would involve;
how long people may be subject to administrative detention and in what
conditions; and whether decisions are reviewable. The committee
is therefore
seeking further information from the Minister for Agriculture, Fisheries and
Forestry to assess the compatibility of
this measure with these rights.
Preventative biosecurity measures
Rights to health, privacy, equality and non-discrimination, culture and
freedom of movement
This bill would empower the Agriculture Minister to determine certain other
biosecurity measures for the purposes of preventing a
specified behaviour or
practice that causes or contributes to the entry or spread into Australia of
certain diseases or pests. This
may include banning, restricting, or requiring
certain behaviours or practices or requiring the provision of a specified
information.
The committee considers that to the extent that the measure prevents
behaviour or practices that may pose a risk to human health,
it promotes the
right to health. However, the committee notes that it also engages and may limit
other human rights, including the
rights to privacy and equality and
non-discrimination, culture and freedom of movement. Questions remain as to
whether the measure
is proportionate, including what types of behaviours and
practices would likely be specified in a determination, and if it likely
that a
determination would ban or restrict traditional trading or other cultural
practices among Aboriginal and Torres Strait Islander
persons, or movement
between particular locations, and whether decisions made pursuant to a
determination will be reviewable. The
committee is therefore seeking further
information from the Minister for Agriculture, Fisheries and Forestry to assess
the compatibility
of this measure with these rights.
Information management framework
Right to privacy
This bill seeks to amend the management of information obtained or
generated under the Biosecurity Act, in particular to enable greater
sharing of information with government agencies and other bodies.
The committee considers that authorising the use and disclosure of personal
information engages and limits the right to privacy. Questions
remain as to
whether the measure is proportionate, including who relevant information may be
disclosed to in certain circumstances,
why all information obtained under the
Biosecurity Act can be shared for law enforcement purposes, why information
sharing agreements
are not generally required, and what other safeguards
accompany the measure. The committee is therefore seeking further information
from the Minister for Agriculture, Fisheries and Forestry to assess the
compatibility of this measure with the right to privacy.
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No comment
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Advice to Parliament
pp. 34-37
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Increasing penalty units
Criminal process rights
This bill seeks to increase the amount of one Commonwealth penalty unit
from $222 to $275 from 1 January 2023 (an increase of 24 per
cent) and to be
further indexed every three years to the Consumer Price Index (CPI). This would
increase the maximum available penalty
for every Commonwealth civil penalty
provision expressed in terms of penalty units across the Commonwealth statute
book.
The committee considers that this may engage criminal process rights in
some instances, because civil penalties may be considered
criminal in nature
under international human rights law in certain circumstances, including based
on the severity of the penalty.
In such instances, the provisions must be shown
to be consistent with international human rights law criminal process
guarantees,
including the right to be presumed innocent until proven guilty
according to law (in accordance with the criminal standard of proof).
Civil
penalty provisions, which require proof of the conduct on the balance of
probabilities, do not meet this guarantee. The committee
also cautions that it
cannot comprehensively quantify the total level of risk given the number of
civil penalty provisions this bill
would amend.
The committee recommends that the statement of compatibility with human
rights be updated to reflect the potential engagement and
limitation of criminal
process rights by this bill.
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No comment
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No comment
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No comment
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No comment
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Defence Home Ownership Assistance Scheme Amendment Bill
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No comment
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Education Legislation Amendment (2022 Measures No. 1) Bill
2022
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No comment
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Advice to Parliament
pp. 38-49
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Restrictions on industrial action relating to cooperative workplace
agreements
Rights to freedom of association and just and favourable
conditions of work
The committee considers that many of the measures in this bill would
promote human rights, including the rights to work, just and
favourable
conditions of work, and equality and non-discrimination. If removing current
restrictions on industrial action would protect
more employees to take
industrial action, in circumstances which are currently prohibited by the Fair
Work Act, the committee considers
this would help to better protect the right to
strike.
However, by excluding cooperative workplace agreements from protected
industrial action, so that employees covered by these agreements
would be
prohibited from organising or engaging in any industrial action, this limits the
rights to strike and just and favourable
working conditions. This could cover
multiple businesses and their employees, with such agreements expected to be
particularly attractive
to small business employers.
The committee notes that the general objectives of the bill, including to
increase wages and address gender inequality, are important
and are likely
legitimate objectives for the purposes of international human rights law.
However, it remains unclear what is the specific objective behind
restricting industrial action for cooperative workplace agreements.
Further, the
committee notes that the measure applies a general prohibition on industrial
action, without any exceptions or flexibility
to treat different cases
differently. Noting that the measure does not appear to fall into any recognised
exceptions to the international
human law right to strike, the committee
considers that this specific measure does not appear to be a proportionate
limitation on
the rights to freedom of association and just and favourable
conditions of work. The committee recommends the statement of compatibility
with
human rights be updated and draws these human rights concerns to the attention
of the minister and the Parliament.
Compulsory mediation or conciliation before industrial action is
protected
Rights to freedom of association and just and favourable
conditions of work
The bill seeks to introduce compulsory mediation or conciliation between
bargaining representatives before industrial action is taken
to be protected. If
industrial action is taken without complying with this provision, the Fair Work
Commission can order it to stop
and failure to do so by any worker could result
in a civil penalty.
By proposing additional requirements that must be met in order for
industrial action to be protected, the measure engages and limits
the right to
freedom of association, particularly the right to strike, and the associated
right to just and favourable conditions
of work. The committee considers that
the measure pursues the legitimate objective of de-escalating disputes and
encouraging negotiation
and resolution of disputes before industrial action
commences. While the measure is accompanied by some safeguards, including that
the conference would be conducted by the Fair Work Commission, the committee
notes that the consequences of failing to attend the
conference would constitute
a significant interference with the right to strike, and draws these human
rights concerns to the attention
of the minister and the Parliament.
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Higher Education Support Amendment (2022 Measures No. 1) Bill
2022
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No comment
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Concluded
pp. 75-84
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Investigative and reporting powers; contempt of Commission; journalist
search warrants; and covert investigative powers
Multiple rights
These two bills seek to establish the National Anti-Corruption Commission,
as an independent agency to investigate and report on serious
or systemic
corruption in the Commonwealth public sector. The committee published its advice
to Parliament in relation to these bills
in Report
5 of 2022. The committee did not request the provision of a response from
the minister but did make several recommendations. The minister provided
a
response to the committee's recommendations on 23 November 2022. The committee
welcomes the Attorney-General's commitment to amend
the bill in line with the
majority of its recommendations.
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Seeking further information
pp. 50-55
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Increasing civil penalties
Criminal process rights
The committee notes that the bill overall seeks to provide the Australian
Information Commissioner with greater enforcement and information
sharing
powers, and the Australian Communications and Media Authority with greater
information sharing powers. In general, the committee
considers these proposed
powers will likely promote the right to privacy by strengthening the capacity of
these oversight bodies.
The committee notes that these powers also engage and
limit the rights to privacy and fair hearing, and having considered the
statement
of compatibility provided, makes no further comment in relation to
this.
The bill also seeks to increase the penalty for serious or repeated
interferences with the privacy of an individual for 'a person
other than a body
corporate' to $2.5 million. It is unclear whether this penalty may apply
to individuals, and whether the increased
penalty may risk being regarded as
criminal for the purposes of international human rights law. Were this the case,
the penalty would
need to be shown to be consistent with criminal process
rights, including the right to be presumed innocent until proven guilty
according
to the criminal standard of proof. The committee is seeking further
information from the Attorney-General in relation to this matter.
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No comment
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No comment
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Supply Bill (Parliamentary Departments) Bill (No. 2) 2022-2023
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No comment
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Seeking further information
pp. 56-67
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Access to unlisted numbers on the Integrated Public Number
Database
Right to privacy
While the committee notes the important objective of the bill, it notes
that permitting the disclosure of information relating to
unlisted phone numbers
(such as mobile phone numbers) on the Integrated Public Number Database in
dealing with matters raised by
a call to an emergency service number, limits the
right to privacy. The committee is seeking further information from the Minister
for Communications to assess the compatibility of the measure with this right.
The committee also reiterates its expectations in
respect of statements of
compatibility with human rights.
Sharing of information in the case of a threat to a person's life or
health
Right to privacy
While the committee notes the important objective of the bill, the
committee notes that allowing a carrier or carriage service provider
to disclose
personal information or documents if necessary to prevent or lessen a serious
threat to life or health (and not a serious
and imminent threat, as is currently
required), engages and limits the right to privacy. The committee is seeking
further information
from the Minister for Communications in relation to this.
Immunity from civil liability
Right to an effective remedy
The committee notes that extending the immunity of carriers and carriage
service providers (such as mobile phone providers) from civil
liability engages
the right to an effective remedy. The committee notes that the statement of
compatibility does not identify the
engagement of this right and is therefore
seeking the Minister for Communications' advice as to the compatibility of the
measure
and recommends the statement of compatibility be updated.
Records relating to authorised disclosures of information or
documents
Right to privacy
The committee notes that expanding the requirement to record where an
authorised disclosure of information, including personal information,
has
occurred engages and may limit the right to privacy. The committee notes that
the statement of compatibility does not identify
the engagement and limitation
of the right to privacy in respect of this measure, and is therefore seeking the
Minister for Communications'
advice as to the compatibility of the measure and
recommends that the statement of compatibility be updated.
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No comment
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Chapter 1: New and continuing matters
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Legislative instruments registered on the Federal
Register of Legislation
between 28 September and 10 November
2022[4]
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188
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Legislative instruments commented on in
report[5]
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1
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Chapter 2: Concluded
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Legislative instruments committee has concluded its examination
of following receipt of ministerial response
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0
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Data Availability and Transparency (Consequential Amendments)
Transitional Rules 2022 [F2022L01260]
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Seeking further information
pp. 68-73
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Facilitating access to Australian Government data
Right to privacy
This legislative instrument authorises the provision of controlled access
to Australian Government data by prescribing six entities
as transitional
Australian Data Service Providers.
The committee notes that this engages and limits the right to privacy, and
is seeking further information from the Minister for Finance
to assess its
compatibility.
The committee further notes that it raised numerous concerns about the bill
(now Act) which established this scheme, particularly
with respect to the right
to privacy, and that as 251 amendments were made to the bill after it had been
considered by the committee,
it is challenging to determine whether, and to what
extent, the data-sharing scheme, as implemented, reflects the committee's
previous
concerns. The committee intends to write to the Minister for Finance
asking departmental officials to provide a briefing to the committee
secretariat
about how the scheme as a whole (and as amended) operates.
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Legislation (Deferral of Sunsetting—Social Security
(Administration) Instruments) Certificate 2022 [F2022L01267]
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This legislative instrument defers by 12 months the date by which six
legislative instruments, relating to the administration of the
income management
regime, will sunset. The explanatory statement states that these instruments are
expected to be reviewed and remade
within 12 months as a result of
consultation with communities to develop long term arrangements in abolishing
the Cashless Debit
Card and reforming compulsory income management arrangements.
The committee draws the Attorney-General and the Parliament's attention
to its
recent comments on the abolition of the Cashless Debit Card scheme and the
continuation of income management.[6]
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Instruments imposing sanctions on
individuals[7]
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A number of legislative instruments impose sanctions on individuals. The
committee has considered the human rights compatibility of
similar instruments
on a number of occasions and retains scrutiny concerns about the compatibility
of the sanctions regime with human
rights.[8] However, as these
legislative instruments do not appear to designate or declare any individuals
who are currently within Australia's
jurisdiction, the committee makes no
comment in relation to these instruments at this stage.
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[1] This section can be cited as Parliamentary Joint Committee on Human Rights, Report snapshot, Report 6 of 2022; [2022] AUPJCHR 45.
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