Sarah Henderson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I present the annual report of 2019 of the Parliamentary Joint Committee on Human Rights, and I move:

That the Senate take note of the report.

I'm pleased to present the Parliamentary Joint Committee on Human Rights 2019 annual report. This committee was formed in 2012 after the passage of the Human Rights (Parliamentary Scrutiny) Act. For the past eight years, it has operated to locate the scrutiny of legislation from a human rights point of view at the heart of the parliamentary process. In that vein, the committee's purpose is to enhance understanding of, and respect for, human rights in Australia and to ensure appropriate recognition of human rights issues in legislative and policy development. The establishment of the committee builds on the parliament's established traditions of legislative scrutiny. Accordingly, the committee undertakes its scrutiny function as a technical inquiry relating to Australia's international human rights obligations. The committee does not consider the broader policy merits of legislation when performing its technical scrutiny function.

This report covering the period from 1 January to 31 December 2019 details the significant volume of work the committee has undertaken during the reporting period. 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. As this report notes, the committee's human rights analysis continues to be available in a timely manner to inform parliamentary deliberations. Pleasingly, during 2019, a human rights analysis of 96 per cent of new bills was available to inform members of parliament prior to the passage of legislation.

The report also provides information about the work of the committee, including the major themes and scrutiny issues arising from the legislation which the committee examined. For example, the report notes that the right to privacy continues to be the most commonly engaged right with respect to the legislation considered. It also outlined several significant areas which attracted substantive comment from the committee, including national security and foreign interference; immigration and citizenship; equality and nondiscrimination; and privacy and information sharing. In addition, the report provides an overview of the committee's continued impact during the report period. For example, in presenting a revised version of the Crimes Legislation Amendment (Police Powers at Airports) Bill 2019, the minister noted that this committee's comments informed the revisions which had been made to better protect the right to peaceful protest.

The report also notes the committee's 2019 inquiry into the Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 which considered whether the regulation of the use of restraints in aged-care facilities was consistent with a number of human rights. The committee held a one-day public hearing, taking evidence from 29 witnesses including departmental officials, state and territory public guardians, and medical experts. In addition, the committee received 17 written submissions. While the committee concluded that other laws continue to apply to regulate the use of restraint without informed consent, it considered the amending principles appeared to have created widespread confusion around the legal obligations of approved providers in relation to the use of restraint in residential aged-care facilities, and it recommended that the principles be amended to address these concerns. Following the completion of this inquiry, the government amended these principles in the manner which addressed the community's concerns, I'm very pleased to say. This inquiry is an excellent example of the committee's capacity to engage directly with the non-government sector and the public, and with ministers and departments, in order to inform legislative developments. I extend my thanks to the many witnesses and submitters for their contributions to this inquiry and commend the minister on the timely and responsive amendments to these principles.

Finally, as senators will be aware, the committee undertakes legislative scrutiny through a dialogue with legislation proponents, most obviously ministers, and often seeks further information to inform its consideration of proposed measures. I thank the ministers, departments and others for their continued engagement with the committee, noting that responses may often be sought under considerable time pressure and may involve significant research and coordination. I want to particularly thank ministers for assisting the committee during the last six months when, of course, they have been under so much pressure. The provision of timely and fulsome information to the committee is crucial to it completing its work. I also would like to thank the previous chair, Mr Ian Goodenough MP, who was the chair of the committee for part of this reporting period, and my fellow committee members, for all of their hard work. I also wish to acknowledge the work of the committee's legal adviser, Associate Professor Jacqueline Mowbray, and the very hardworking members of the committee's secretariat. I encourage my fellow senators and others to examine the committee's annual report to inform their consideration of the committee's work during the relevant period. With these comments, I commend the committee's 2019 annual report to the chamber.

Nita Green (Queensland, Australian Labor Party) Share this | Link to 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.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

On the same report, I associate myself entirely with the remarks just made by Senator Green. I want to place on the record that, given Australia remains the only liberal democracy in the world that has no form of either constitutionally enshrined or legislated charter for a bill of rights, the work of this committee is absolutely critical in informing not only members of this parliament but in fact people who live in this country about the human rights implications of legislation that is being considered by us here in this place.

It's very interesting that this annual report makes it clear that this is a technical scrutiny committee and that in fact the committee ought not to consider the broader policy merits of legislation that it is examining. But not only is the committee, under the chair, considering the broader policy merits; it is also considering the broader political implications of legislation that the committee is examining. That is a matter of extreme regret to me as someone who has sat on this committee for about five years. This committee has been politicised by the chair, with the support of every single other government member of this committee. I thank Senator Green and her colleagues from the Labor Party, including the deputy chair of this committee, Mr Perrett, for their view that in fact this committee should operate as a technical scrutiny committee.

I've made some public comments recently and I've made comments in this place on more than one occasion about the fact that this committee has been politicised by the chair. And, in response, the chair has accused me of suggesting that the committee should rubber stamp the legal advice. Nothing could be further from the truth. I agree the committee ought not rubber stamp legal advice, but I want to place it firmly on the record that, if the committee or any member of it wants to depart from the legal advice, then, when departing from that advice, there should be given cogent, rational and coherent reasons why the committee is not acquiescing to and supporting that legal advice. That is not what we are seeing.

The most recent majority report of this committee has significant departures from the independent legal advice that the committee relies on with no rational, cogent or coherent reasons given as to why that advice should be departed from. So I want everyone in this place to know: you cannot necessarily rely on the majority reports of this committee if you want to know what the best advice is to the committee. With regard to whether any particular piece of legislation is in accordance with Australia's international human rights obligations, I refer members to the dissenting reports that have already been issued and I have no doubt will need to continue to be issued by Labor and Greens members.

It is extremely disappointing that the chair for political purposes has chosen to rampantly politicise this committee, and I say again: do not trust or rely upon the majority report of this committee for an unbiased and technical assessment of whether legislation complies with Australia's international human rights obligations. I truly hope that the chair changes tack here and either relies on the legal advice or at least tries to mount a rational and coherent argument as to why that advice should be departed from in the future. I won't be holding my breath, because I don't think it's going to happen. However, it would be a good day for human rights in this country and a good day for people's capacity to understand human rights in this country if that was to occur.

Question agreed to.

Sarah Henderson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I present the 10th Report of 2020 of the Parliamentary Joint Committee on Human Rights, the Human rights scrutiny report, and I move:

That the Senate take note of the report.

I'm pleased to table the Parliamentary Joint Committee on Human Rights 10th scrutiny report of 2020. As usual, this report contains a technical examination of legislation with Australia's obligations under international human rights law. In this report the committee considered 173 new legislative instruments and commented on two of them. For example, the committee seeks further information about the human rights compatibility of an instrument which exempts childcare workers from the JobKeeper wage subsidy and one which suspends an employee's right to workers compensation on Norfolk Island. For those who are unfamiliar with the work of the committee, I take this opportunity to reiterate that the committee has not formed a concluded view on the human rights implications of these instruments as is the case with the committee's preliminary report on any bill or instrument.

In addition, the committee makes concluding comments on two bills after receiving ministerial responses, including the National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020. The committee considers that the bill, which would broaden the circumstances in which the NDIS commissioner could make a banning order in relation to NDIS providers and their current and former employees, is designed to help prevent the violence, abuse, neglect and exploitation of persons with disabilities and so promotes and protects the rights of persons with disabilities.

The committee also notes that publishing on a register, which is available as a public website, the details of any employees who have been banned also engages and limits the rights to privacy. This right may be permissibly limited if it is shown to be reasonable, necessary and proportionate. The committee notes the legal advice that, in assessing the proportionality of the measure, it is necessary to consider whether there are less restrictive rights or ways to achieve the same aim such as making the register available on request to the NDIS Quality and Safeguards Commission rather than it being publicly available on a website by default, which of course provides easier access for people with disability.

However, in this particular report—and I do assume that there is no dissenting report, but I'm yet to find that out as I only do when the report is tabled—the committee has respectfully disagreed that it is appropriate to impose additional barriers on people with disability seeking to access information about banned providers or employers given the critical importance of protecting people with disability from abuse, violence, neglect or exploitation. If people with disability required, for instance, to contact the commission in order to obtain information about banned providers or employees, the committee considers this would impose an unacceptable additional administrative burden on people with disability and their families and carers such that it might give rise to a real risk that people with disability may inadvertently engage a banned provider or employee. Accordingly, we have concluded that the measure constitutes a proportionate limit on the right to privacy. In reaching this view, we appreciate that this involves us balancing the competing rights of persons with disability with the right of privacy, but protecting people with disability from abuse, violence, neglect or exploitation, including conduct so serious that it may result in the permanent injury or death of a person with disability, is of paramount importance.

In the committee reaching this conclusion—and, as I say, I do this on the basis that I don't believe there will be any dissenting report and so I make comments subject to that—I make the important point in this instance that all committee members have not, in all respects, accepted the advice of the independent legal adviser to the committee, which is advice that we obviously greatly value. In my view, and in the view of the committee, it cannot be justified that the rights to privacy of somebody who's been banned for providing services as an NDIS provider or employee prevail—and these are, of course, people who may have engaged in the most heinous of conduct—over the rights to people with disability, and this is a matter of proportionality and a matter of consideration. I do also say this as a former assistant minister for disability services cognisant of the need to provide maximum protection to NDIS participants and impose the least amount of administrative burden on participants.

As I reiterated in my contribution yesterday, the committee considers the minister's response, the independent legal advice and other relevant material in its consideration of the compatibility of the bill or instrument with Australia's human rights obligations. In our parliamentary democracy, committee members are required to independently consider human rights implications, and that is our role. In determining whether a legislative measure constitutes a permissible limitation on the specific human right, committee members are invariably required to weigh up various considerations, including competing human rights, as is the case here.

On this note I want to reference the contributions to the debate on the annual report today by both Senator McKim and Senator Green and also reference some very regrettable comments made by Senator McKim published in The Guardian yesterday in an article titled 'Greens accuse Coalition of "aiding and abetting" formation of a surveillance state'. I want firstly to reject those very improper and inaccurate comments that have been made by Senator McKim in The Guardian, which reflected on my motives in a most improper way and accused me, in relation to our consideration of the ASIO bill, in report No. 9 of 2020, of aiding and abetting the government's building of a police and surveillance state. These are really quite disgraceful comments. They are not supported by the facts, and I would ask Senator McKim, who is in the chamber right now, to withdraw those particular comments.

Senator McKim also told The Guardian, in relation to not accepting the legal advice in all respects in report No. 9 of 2020, that it 'beggars belief that the chair has once again ignored the independent legal advice'. Well, that's inappropriate for a start, because in report No. 9 the coalition of the committee did not in all respects accept the independent legal advice. And, despite what Senator McKim said, yesterday in this place I gave some very cogent reasons—

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

No you didn't.

Sarah Henderson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I'll take that interjection. Senator McKim says I didn't. Well, in fact I did. I gave some very cogent reasons that not in every respect was the legal advice accepted by the coalition members. It is quite hypocritical of Senator McKim to criticise coalition members of this committee for not accepting the legal advice in all respects, and he's made these comments on two occasions in this place and also to The Guardian, when in fact with this report all committee members—and I say this subject to there not being a dissenting report—appeared to have not accepted the legal advice in all respects and of course have determined that it is proportionate and that it is proper that the rights of people with disability in this case prevail such that the measure is proportionate.

So I do want to state very clearly my disappointment, particularly at the comments Senator McKim has made. I have a lot of personal respect for Senator McKim, but I am very, very disappointed that he would reflect on my motives in such a way, including in making what I think are some completely disgraceful comments. Determining what is proportionate is not a black and white exercise, and I also say this in relation to Senator Green's contribution. It is a matter of judgement, and in this report we are continuing to do that. (Extension of time granted)This conclusion demonstrates that it is correct and proper that the committee reaches its own conclusions without fear or favour, and under my chairmanship we will continue to do so. I encourage all parliamentarians to carefully consider the committee's analysis, and with these comments I commend the report to the chamber. Thank you very much.

Question agreed to.