Nita Green (Queensland, Australian Labor Party) Share this | Hansard source

I rise to make a few comments about the 2019 annual reportof the Parliamentary Joint Committee on Human Rights, of which I am a member. I want to draw the Senate's attention to the role of this committee, in the same way that the chair has done, to alert the Senate to some grave concerns about human rights during COVID-19 and to the fact that, during a crisis like this, it is incredibly important that scrutiny, particularly through a legislative scrutiny committee such as this one, is done meticulously and without any judgement on the merits of the policy that is behind the legislation but simply on whether the legislation stacks up from a human rights point of view. We have seen an incredible amount of legislation and delegated legislation being passed quickly through parliament, particularly at the beginning of this pandemic to support people and to get measures in place. There's been an incredible amount of delegated legislation. But it is very clear that we need to make sure that this committee is operating in a way that scrutinises that legislation very clearly.

As the chair said, this committee was formed by an act of parliament. The functions of the committee are very clear: the committee is required to examine bills and legislative instruments that come before either house of the parliament for their compatibility with human rights and to report to both houses of parliament on that issue. An article entitled 'The role, operation and effectiveness of the Commonwealth Parliamentary Joint Committee on Human Rights after five years' by Zoe Hutchinson articulates what the purpose is behind this committee. She says that the formation of this committee happened while the federal government was doing a review into human rights in Australia. We know we don't have a federal human rights bill in Australia, so, in order to make sure that we are meeting our human rights obligations, we need to have something underlying that. While the federal government at the time did not adopt more sweeping recommendations, they did recommend that there be this committee and that these mechanisms were created through the passage of legislation. The purpose of the committee was described by the Attorney-General at the time as improving:

…parliamentary scrutiny of new laws for consistency with Australia's human rights obligations and to encourage early and ongoing consideration of human rights issues in policy and legislative development. The purpose of the committee is to uphold Australia's human rights obligations, and if the committee isn't doing its job then those obligations are being let down. Speaking to a report in 2017, the chair talked about the difference between a legislative or references committee in the Senate, for example, and a technical committee:

Like all parliamentarians, scrutiny committee members may, and often do, have different views in relation to the policy merits of legislation. The report does not assess the broader merits or policy objectives of particular measures but rather seeks to provide parliament with a credible technical examination of the human rights implications of legislation. Committee members performing a scrutiny function are not, and have never been, bound by the contents or conclusions of scrutiny committee reports.

That is very true, but it is also important to point out that a significant element of the technical scrutiny approach, which is also different to other portfolio committees, is the provision of legal advice as a mechanism to support the committee to perform its legislative scrutiny function. That is why the committee does have an independent part-time legal adviser. The committee can accept that legal advice, but it can certainly consider it with great reference. It should be taking that legal advice at its core and really concentrating on what that legal advice is, because it's such an important role of the committee.

In saying that, unfortunately it has become necessary in recent times for members of the committee to provide dissenting reports to a number of the reports of this committee. That is incredibly disappointing, because although we know that there are disagreements—perhaps there might be disagreements about the way that the law is interpreted, or about the proportionality of some human rights legislation in this particularly acute time during COVID-19—the fact that there are so many dissenting reports should alert people to the concerns that members in this committee have about the way that reports being delivered to the parliament are not actually highlighting some of the human rights issues that are being raised in these bills.

With the short amount of time I have left, I want to quickly talk about some of these dissenting reports and the legislation where it was necessary to put a dissenting report in on what should be something that isn't political party politics and that isn't about the merits of the policy, but just should be the interpretation of that legislation. There was a dissenting report from Labor and Greens members on the Australian citizenship amendment bill, a pretty important piece of legislation that can strip people of their citizenship. It was necessary to put a dissenting report through on that. The Social Security (Administration) Amendment (Income Management to Cashless Debit Card Transition) Bill also required a dissenting report, because dissenting report members considered that it wasn't clear enough that it was demonstrated that an:

…extension of the cashless debit card trial is a justifiable limit on the rights to social security and privacy or, to the extent that the trial has a disproportionate impact on Indigenous Australians, that it is a reasonable and proportionate measure and therefore not discriminatory.

That wasn't made clear enough in the report, and that is a grave concern.

Another dissenting report that members needed to include was on the Fair Work (Registered Organisations) Amendment (Ensuring Integrity No. 2) Bill. We know that this was a politicised bill, and we know that the policy behind this bill was highly politicised. But, when it comes to human rights and the rights of people to be represented by their unions and to freely associate, that should be above party politics, and yet it was necessary to put a dissenting report in about this bill. Dissenting members said in the report: 'Noting the importance under international human rights law of registration as an essential facet of the right to organise, the dissenting members consider there is a significant risk that this measure may result in the cancellation of union registration in circumstances that would be incompatible with the right to freedom of association.'

Finally, the last piece of legislation I want to draw to the senate's attention is the Australian Security Intelligence Organisation Amendment Bill. A dissenting report was required when it came to this legislation. When it comes to national security, of course, determining what is proportionate is always a difficult matter. I want to make clear that dissenting reports around human rights legislation or the compatibility of human rights isn't a method of saying that a party or a committee member doesn't support the bill itself, but it is necessary to point out the very grave issues with this bill when it comes to human rights. It wasn't in the actual committee report. We had to provide a dissenting report on this issue.

What was the issue? This bill included the ability for the Attorney-General to issue a warrant without a judicial officer overseeing that warrant. Dissenting members considered that the proposed capacity for the Attorney-General, a political officer, to issue a warrant and to authorise the apprehension of a person absent the additional oversight of a judicial officer raises particular concern as to whether the proposed apprehension power permissibly limits the rights of liberty and freedom of movement. I raised this not because I am a legal eagle who has their head stuck in textbooks but because when human rights legislation isn't upheld and we have legislation that's made that limits people's human rights I can tell you that it is vulnerable people in our society who can't go and get fancy lawyers and run off to court to try to uphold their human rights who are affected.

It is a concern that this is the way that the reports have had to be tabled, and I draw that to the attention of the Senate.