Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

On behalf of the Parliamentary Joint Committee on Human Rights, I present the following reports: Human rights scrutiny report: report 8 of 2020; Human rights scrutiny report: report 9 of 2020, incorporating a dissenting report; Human rights scrutiny report: report 10 of 2020; and the annual report 2019.

Reports made parliamentary papers in accordance with standing order 39(e).

by leave—I'm pleased to table the eighth, ninth and 10th human rights scrutiny reports of 2020 of the Parliamentary Joint Committee on Human Rights, as well as the committee's 2019 annual report. The committee's reports contain a technical examination of legislation with Australia's obligations under international human rights law. In these three scrutiny reports, the committee has considered 18 new bills and 272 instruments and commented on 16 bills and instruments, including legislation previously commented on.

During this COVID-19 pandemic, the committee has continued to meet regularly via teleconference so that it can fulfil its important role in scrutinising legislation. These reports include the committee's consideration of several COVID-19 related bills and instruments. For example, the committee corresponded with the Minister for Health in relation to the Privacy Amendment (Public Health Contact Information) Bill 2020. In Report 8 of 2020 the committee concluded that the bill, which established privacy protection for users of the COVIDSafe app, constituted a proportionate limit on the right to privacy, noting, in particular, the number of useful safeguards to protect data associated with app users. The committee also recommended a small number of targeted amendments to further improve these privacy protections.

These reports also continue the committee's important scrutiny function in relation to non-COVID-19-related legislation. For example, the committee's Report 9 of 2020 sets out the committee's extensive consideration of the Australian Security Intelligence Organisation Amendment Bill 2020. This bill seeks to amend ASIO's compulsory questioning powers. This raises some complex human rights law issues. The committee sought a considerable amount of information from the minister in order to inform its consideration and thanks the minister for the detailed response which he provided. The committee considered that these powers seek to achieve the vitally legitimate objective of ensuring ASIO can gather information in relation to national security to keep Australia safe. The committee notes the minister's extensive advice as to the safeguards present in relation to a number of these measures which help protect human rights. However, in some instances, the committee considers, as drafted, there are questions as to whether such safeguards are sufficient such that the measures would in all instances constitute a proportionate limit on rights. The committee's report includes a number of recommendations and potential amendments to the bill which would assist the proportionality of specific measures with respect to human rights.

In addition, Report 9 of 2020 sets out the committee's consideration of the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020. This bill will amend the Migration Act to allow the minister to determine that a thing is a prohibited thing in immigration detention, and amend search and seizure powers in those facilities. As the report sets out, these proposed amendments are designed to ensure that the Department of Home Affairs can provide a safe and secure environment for staff, detainees and visitors in immigration detention centres, which likely promotes the right to security of the person. The proposed measures also appear to engage other human rights, but the limitation on rights may be permissible if demonstrated to be reasonable, necessary and proportionate. In this respect, the committee noted that the bill is intended to address the concerning issue of mobile phones and other internet-capable devices being used to coordinate and facilitate escape efforts, organise criminal activities and facilitate the movement of drugs and other contraband within detention facilities. The committee found that the measures in the bill which remedy this current position are vital to the safety and lawful operation of detention centres. The committee thanks the minister for his detailed response, which greatly assisted the committee's consideration of these measures. The committee has suggested some targeted recommendations to assist in the proportionality of the search and seizure measures with respect to human rights.

Lastly, the committee's annual report 2019 covers the period from 1 January to 31 December 2019 and details the significant volume of work the committee undertook during this time. During 2019 the committee tabled six scrutiny reports examining a total of 213 bills and 1,385 legislative instruments. The committee commented on 86 of these bills and instruments, including requesting additional information in relation to 26 bills and nine legislative instruments. The annual report also sets out the major themes identified in 2019 and outlines the committee's continued impact. I encourage all parliamentarians to carefully consider the committee's analysis in these three reports and the overarching work of the committee as set out in the annual report. With these comments, I commend the reports to the chamber.

Graham Perrett (Moreton, Australian Labor Party, Shadow Assistant Minister for Education and Training) Share this | Link to 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.