Graham Perrett (Moreton, Australian Labor Party, Shadow Assistant Minister for Education and Training) Share this | Hansard source

by leave—As Deputy Chair of the Parliamentary Joint Committee on Human Rights, I wish to speak to the committee's Human rights scrutiny report: report 9 of 2020. In this report, half of this previously well-functioning committee has issued dissenting remarks with respect to the committee's conclusions on two significant pieces of legislation: the Australian Security Intelligence Organisation Amendment Bill 2020 and the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020.

I wish to remind members that the Parliamentary Joint Committee on Human Rights has a specific legislative scrutiny function—that is, to inform both houses of parliament as to the compatibility of proposed and existing Australian legislation with international human rights law and precedent. It has been established to contribute meaningfully to the consideration of human rights by the parliament. To achieve this, committee members consider expert legal advice as to the application of international human rights law. The committee does not rubberstamp this advice. Rather, committee members seek to scrutinise and consider that advice and then form their own opinions as to the weight of those conclusions and recommendations. Indeed, there is typically scope for differences of opinion regarding complex legal matters.

However, the dissenting members consider that, just as the legal advice to the committee must be evidence based and well reasoned, any substantial deviation from or rejection of the legal advice as to the compatibility of a measure with international human rights law likewise requires a persuasive foundation and must be based on convincing evidence. With respect to the Australian Security Intelligence Organisation Amendment Bill 2020, the majority committee report failed in a number of instances to explain how measures are compatible with human rights and ignored the expert international human rights law advice provided to the committee.

In our dissenting comments, Labor and Greens members make a number of recommendations to amend the bill in order to improve its human rights compatibility, including with respect to the rights of children and persons with disability. For example, dissenting members consider that the minister has not established that there is evidence of a pressing and substantial need to expand the compulsory questioning regime to children as young as 14 and has not demonstrated that the measure would ensure the best interests of the child are considered as a primary consideration. Dissenting members have made a number of recommendations to bolster protection for any child being questioned under this scheme, along with numerous other recommendations to better protect human rights.

In addition, the dissenting members disagree with the majority report relating to the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020. That gives the minister the power to prohibit any thing in an immigration detention facility, such as mobile phones. The majority report considers that this is a proportionate limit on human rights. There is no limit in the proposed legislation that would ensure that only detainees who pose a risk to security would be prohibited from possessing such things. The dissenting members consider there is a significant risk that this power could be exercised in a manner which is not compatible with the rights to privacy and freedom of expression and the right of detainees not to be subjected to arbitrary or unlawful interference with their families. Accordingly, dissenting members recommend, among other things, that the proposed measures be constrained to provide that items can be prohibited only when possessed by a detainee who, it can reasonably be demonstrated, would pose a risk to the health, safety or security of persons in the facility or to the order of the facility if they possess such a thing.

In closing, I note that in the first seven years of this committee's life, between 2012 and mid-2019, just four dissenting reports were ever issued, and those dissenting reports were made by a small number of individual members who disagreed with the committee's approach of listening to the expert international human rights law advice. By contrast, in just the past nine months, four dissenting reports have now been issued by half of the committee where the committee majority has rejected or deviated from the legal advice to the committee without a persuasive foundation. This is a concerning trend. I strongly encourage all parliamentarians to carefully consider the dissenting report that's accompanying the committee's Human rights scrutiny report: report 9 of 2020.

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