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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 6 to 16 February 2023
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18
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Bills commented on in
report[2]
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1
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Private members or senators' bills that may engage and limit human
rights
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5
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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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3
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Australia Council Amendment (Creative Australia) Bill 202
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No comment
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Commonwealth Electoral Amendment (Cleaning up Political Donations) Bill
2023
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The committee notes that this private member's bill appears to engage and
may limit human rights. Should this bill proceed to further
stages of debate,
the committee may request further information from the member as to the human
rights compatibility of the bill.
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Criminal Code Amendment (Inciting Illegal Disruptive Activities) Bill
2023
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The committee notes that this private senator's bill appears to engage and
may limit human rights. Should this bill proceed to further
stages of debate,
the committee may request further information from the senator as to the human
rights compatibility of the bill.
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Electoral Legislation Amendment (Lowering the Voting Age) Bill
2023
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No comment
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Advice to Parliament
pp. 49-62
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Information-sharing between government agencies and other
bodies
Right to privacy
This bill seeks to amend the Export Control Act 2020 to alter
information-sharing provisions relating to government agencies and other bodies,
by authorising 'entrusted persons' (which
would include any level of
departmental officer and certain contractors) to use and disclose 'relevant
information' (which may include
personal information) in a range of
circumstances and for a variety of purposes. By facilitating the use and
disclosure of personal
information this measure engages and limits the right to
privacy.
Based on the additional information provided by the Minister for
Agriculture, Fisheries and Forestry, the committee considers that
the measure is
accompanied by a number of important safeguards, but given its breadth there is
a risk that these safeguards may not
be adequate in all circumstances so as to
ensure that any limitation on the right to privacy will be proportionate in
practice. The
committee has recommended that the measure be amended to
provide that when an entrusted person is considering disclosing relevant
information they must consider
certain matters, and that the statement of
compatibility be updated.
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The committee notes that this private senators' bill appears to engage and
may limit human rights. Should this bill proceed to further
stages of debate,
the committee may request further information from the senators as to the human
rights compatibility of the bill.
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No comment
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No comment
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Advice to Parliament
pp. 11-33
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Consideration of aggregate sentences for the purposes of the Migration
Act
Prohibition on the expulsion of aliens without due process; right to
liberty; rights of the child; prohibition on torture and ill-treatment;
right to
freedom of movement; right to protection of the family; prohibition on
non-refoulement; and right to an effective remedy
This bill, now Act, is in response to a Federal Court decision. It provides
that aggregate sentences may be taken into account for
all relevant purposes of
the Migration Act and regulations, including for the purposes of assessing
whether to automatically cancel
a visa on character grounds, and retrospectively
validates past decisions and actions.
By expanding the bases on which a visa can be cancelled on character
grounds, noting that the consequence of a visa cancellation decision
is
mandatory immigration detention and subsequent removal from Australia, the
committee considers that the measure engages and limits
multiple rights.
The committee considers that the measure pursues an important objective,
that is, protecting the safety of the Australian community
and the integrity of
the migration system. However, prior to these amendments the Migration Act
1958 already enabled the cancellation of visas on the basis of a person's
criminal record, and as such, the committee considers this measure
does not
appear to address a pressing and substantial need, as required by international
human rights law.
As regards proportionality, there appear to be a lack of adequate
safeguards or avenues for effective review and as the measure significantly
interferes with a person's human rights, it is not clear that the measure would
in all circumstances constitute a proportionate limitation
on rights.
The committee therefore considers there is a significant risk that the
measure is incompatible with the prohibition on the expulsion
of aliens without
due process, the rights to freedom of movement, protection of the family and
liberty, and were children to be affected,
with the rights of the child. There
is also a risk that the measure may not be compatible with Australia's
non-refoulement obligations
(were it to apply to persons to whom protection
obligations are owed) and the prohibition against torture and ill-treatment
(were
persons to be detained for an indefinite or prolonged period of
time).
The committee notes that this bill passed both
Houses of Parliament within three sitting days, which did not provide the
committee
with adequate time to scrutinise the legislation. This is of
particular concern given the significant human rights implications of
this bill.
The committee draws this matter to the attention of the Minister for Home
Affairs and the Parliament.
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Migration Amendment (Australia’s Engagement in the Pacific and
Other Measures) Bill 2023
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No comment
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No comment
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Migration Amendment (Strengthening the Character Test) Bill
2023
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The committee notes that this private member's bill appears to engage and
may limit human rights (see the committee's entry on a substantially
similar
bill in Report
15 of 2021 pp. 17-34). Should this bill proceed to further stages of debate,
the committee may request further information from the member as
to the human
rights compatibility of the bill.
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No comment
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Advice to Parliament
pp. 63-68
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Disclosure of official information
Right to privacy
This bill seeks to establish a National Reconstruction Fund Corporation to
provide finance to projects across priority areas. It
provides that a
Corporation official may disclose 'official information' (namely, information
relating to the affairs of a person
other than a Corporation official) to an
agency, body or person, including if the disclosure will assist these persons to
perform
or exercise any of their functions or powers.
The committee sought additional information from the Minister for Industry,
Science and Resources to establish whether official information
could include
personal information. Based on the minister's response, the committee considers
that while the disclosure of official
information limits the right to privacy,
this is a marginal, and non-arbitrary, limitation on the right to privacy and
considers
its concerns have been addressed. The committee has recommended that
the statement of compatibility be updated.
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The committee notes that this private senator's bill appears to engage and
may limit human rights. Should this bill proceed to further
stages of debate,
the committee may request further information from the senator as to the human
rights compatibility of the bill.
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No comment
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Advice to Parliament
pp. 69-82
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Prohibition on foreign campaigners engaging in certain referendum
conduct
Rights to freedom of expression, freedom of association, privacy, and
equality and non-discrimination
This bill seeks to prohibit foreign campaigners (including people in
Australia who are neither citizens nor permanent residents) from
engaging in
certain referendum conduct, including restricting forms of expression and
fundraising or donating to referendum entities.
The bill would also empower the
Electoral Commissioner to obtain information and documents from persons to
assess compliance.
The committee acknowledges the important objective of this measure in
seeking to prevent foreign state players maliciously interfering
with our
referendum processes. The committee considers the measure pursues the legitimate
objective of protecting the integrity of
Australia's electoral system and
reducing the threat of foreign influence on Australia's elections. However, the
committee considers
it has not been established that the measure is a
proportionate limit on the rights to freedom of expression, privacy and equality
and non-discrimination, as it does not allow for an individualised assessment of
the threat posed by particular campaigning by foreign
nationals, and provides
broad information-gathering powers. Further, to the extent that restricting
foreign persons fundraising or
incurring electoral expenditure interferes with
the ability of a domestic political association to carry out its activities, the
committee considers it may also engage and limit the right to freedom of
association, and it has not been established that this is
a proportionate limit
on rights.
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No comment
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No comment
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Treasury Laws Amendment (Housing Measures No. 1) Bill 2023
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No comment
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Workplace Gender Equality Amendment (Closing the Gender Pay Gap) Bill
2023
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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 3 January and 6 February
2023[3]
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89
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Legislative instruments previously
deferred[4]
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1
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Legislative instruments commented on in
report[5]
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3
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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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1
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Aged Care Quality and Safety Commission Amendment (Code of Conduct and
Banning Orders) Rules 2022 [F2022L01457]
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Advice to Parliament
pp. 83-101
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Information gathering powers and other compliance action
powers
Rights to health; privacy; and rights of persons with
disability
This legislative instrument establishes the Code of Conduct for Aged Care,
which sets out minimum standards of conduct for approved
providers and their
aged care workers and governing persons. It provides that the Aged Care Quality
and Safety Commissioner may take
certain actions in relation to compliance with
the Code, including requesting information or documents from any person.
Taking action to ensure compliance with the Code promotes the right to
health and the rights of persons with disability. However,
establishing broad
information gathering and sharing powers also engages and limits the right to
privacy. Noting the breadth of the
measure and that many of the accompanying
safeguards are discretionary, depending on how the Commissioner's powers are
exercised
in practice, there is some risk that the measure may not be a
proportionate limit on the right to privacy in all circumstances.
The committee has recommended that the legislative instrument be
amended to include in more detail the circumstances in which the Commissioner's
information gathering
powers may be exercised and the threshold that should be
met before the Commissioner takes compliance action, and that the statement
of
compatibility with human rights be updated.
Publication of a register of banning orders
Right to health; rights of persons with disability; and right to privacy
and reputation
This legislative instrument provides for additional matters that must be
included on the register of banning orders for current and
former aged care
workers, including an individual's last known place of residence and other
information that the Commissioner considers
is necessary to identify an
individual. The instrument also provides that the register of banning orders may
be published on the
Commission's website, unless publication would be contrary
to the public interest or the interests of one or more care recipients.
Publishing the register of banning orders to protect vulnerable older
Australians promotes the right to health and the rights of persons
with
disability. However, publishing this data also engages and limits the right to
privacy. The committee considers that it has
not been demonstrated that
publishing the register on a publicly available website (that means that the
names of those on the register
will appear in a general google search)
constitutes a proportionate limit on the right to privacy. In particular, the
committee considers
that it is not clear that making the register available as
an online resource accessible via a secure portal by aged care providers
would
not be as effective to achieve the stated objective.
The committee has recommended that the
instrument be amended to ensure the register be made readily available to all
aged care providers but not published on a
public website; require the
Commissioner to correct information on the register they know to be misleading
or inaccurate; and that
the department's internal processes relating to the
permissible inclusion of information on the register be reviewed.
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Australian Immunisation Register Amendment
(Japanese Encephalitis Virus) Rules 2022 [F2022L01712]
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Seeking information
pp. 34-37
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Expansion of requirement to report vaccination information
Rights to health and privacy
This legislative instrument requires all registered vaccination providers
to report the administration of a relevant vaccine for the
Japanese encephalitis
virus to the Australian Immunisation Register. The primary legislation provides
that the minister (or their
delegate) may authorise 'a person' to use or
disclose protected information contained in the Register for a specified purpose
where
satisfied 'it is in the public interest' to do so.
Adding a new vaccination to the Register, and so increasing the ability for
the government to enhance the monitoring of the disease,
may promote the right
to health. However, requiring vaccination providers to report a recipient's
personal information to the Register
limits the right to privacy. There is a
risk that the existing broad ministerial discretion to disclose personal
information to 'any
person' and for any purpose if it is considered to be 'in
the public interest' to do so, does not sufficiently safeguard the right
to
privacy. The committee seeks a response from the Minister for Health and Aged
Care to its previous recommendation that the ministerial
discretion in the
Australian Immunisation Register Act 2015 be amended.
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Biosecurity (Entry Requirements—Human
Coronavirus with Pandemic Potential) Determination 2023 [F2023L00009]
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Seeking information
pp. 38-44
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Restriction of passengers entering Australia
Rights to life; health; freedom of movement; privacy; equality and
non-discrimination
This legislative instrument imposes entry requirements on passengers to
provide proof of a negative test for COVID-19 taken within
a 48-hour period
prior to boarding a flight that has commenced from the People’s Republic
of China or the Special Administrative
Region of Hong Kong or Macau and ends in
Australian territory. The measure does not appear to be time limited, and the
explanatory
statement does not explain why the determination was made.
While the measure may promote the rights to life and health for persons in
Australia, the measure may mean that persons who cannot
produce a negative
Covid-19 test may be temporarily banned from entering Australia, including
Australian citizens and permanent residents.
As such, this engages and may limit
a number of other human rights. The committee seeks further information from the
Minister for
Health and Aged Care to assess the compatibility of this measure
with the rights to freedom of movement, privacy and equality and
non-discrimination.
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Seeking information
pp. 45-48
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Access to court documents
Right to freedom of expression
These rules provide that a person who is not a party to a Federal Court
proceeding cannot inspect certain court documents in a proceeding
until after
the first directions hearing or the hearing (whichever is earlier).
Restricting access to court documents, which journalists may use to help
them accurately report on cases before the Federal Court,
engages and limits the
right to freedom of expression. The statement of compatibility accompanying the
instrument does not identify
that this right is engaged, and the explanatory
statement provides no information as to why this amendment was considered
necessary.
The committee is seeking further information from the
Attorney-General in order to assess the compatibility of the measure with
the right to freedom of expression.
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Instruments imposing sanctions on
individuals[6]
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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.[7] 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 2 of 2023; [2023] AUPJCHR 16.
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