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HREOC Annual Report 2003-2004 : Chapter 3: Monitoring Human Rights

Human Rights and Equal Opportunity Commission

Annual Report 2003 - 2004

Chapter 3: Monitoring Human Rights

Along with its human rights education and promotion function, the Commission undertakes a monitoring role in relation to human rights standards. This monitoring role ranges across the work of the individual Commissioners who examine and report issues of race, sex and disability discrimination and human rights, to the assessment of legislative proposals and presentation of submissions through the Parliamentary Committee process.

These submissions are also used by lawyers as resource material; politicians and advocacy groups who can use them in the political process and in public debate; and students and other individuals who have an interest in human rights issues.

A range of submissions made by the Commission during 2003-04 are summarised below:

Australian Law Reform Commission Inquiry - Keeping Secrets: The Protection of Classified and Security Sensitive Information

In April 2003, the Attorney-General asked the Australian Law Reform Commission (ALRC) to inquire into and report on measures to protect classified and security sensitive information in the course of investigations and legal proceedings in Australia. The ALRC was asked to consider whether existing mechanisms adequately protect classified and security sensitive information and whether there is a need for further regulatory or non-regulatory measures in this area.

The ALRC is required to ensure that the laws, proposals and recommendations it reviews or considers are, as far as practicable, consistent with the International Covenant on Civil and Political Rights (under section 24(1) of the Australian Law Reform Commission Act 1996 (Cth)). The Commission provided the following submissions to the ALRC inquiry, including commentary on and jurisprudence in relation to the most relevant articles of the International Covenant on Civil and Political Rights to assist the ALRC in its consideration of the issues.

The Commission submitted that any modification to the ordinary criminal and civil law procedure must conform to the human rights principles set out in the International Covenant on Civil and Political Rights, especially article 14 which relates to the right to a fair hearing.

On 27 May 2004, shortly before the ALRC was to provide its final report to the Attorney-General, called Keeping Secrets: The Protection of Classified and Security Sensitive Information, the government introduced into Parliament the National Security Information (Criminal Procedures) Bill 2004 and National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004, relating to the protection of classified information in criminal trials. As at the end of the financial year, the Bills had been referred to the Senate Legal and Constitutional Legislation Committee for inquiry and report.

The Commission provided a written submission to that Committee, which raised issues similar to those raised in the submissions to the ALRC. That submission is available on the Commission's website at:
www.humanrights.gov.au/legal/submissions/national_security.html

Anti-Terrorism Bill (No. 2) 2004

The Anti-Terrorism Bill (No. 2) 2004 seeks to amend the Criminal Code Act 1995 (Cth), the Transfer of Prisoners Act 1983 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth). As at the end of the financial year, the Bill had been referred to Senate Legal and Constitutional Legislation Committee for inquiry and report. The Commission prepared a submission to that inquiry. That submission is available on the Commission's website at:
www.humanrights.gov.au/legal/submissions/terrorism.html

The Bill seeks to introduce a new offence into the Criminal Code Act 1995 (Cth) of intentionally associating with a person who is a member, or who promotes or directs the activities, of a listed terrorist organisation in circumstances where the association provides support to the organisation. The person must know that the organisation is a terrorist organisation and must intend that the support 'assist' the organisation to expand or to continue to exist. There are a number of exemptions to the offence including; if the association is with a 'close family member' and relates to a matter of family or domestic concern; or if the association is for the purpose of providing certain legal advice or representation. In addition, the offence does not apply to the extent that it would infringe any constitutional doctrine of implied freedom of political communication.

In its submission to the Senate Committee the Commission expressed concern in relation to the width of the proposed offence of 'association' and the lack of precision in certain of its terms. The essence of the Commission's concern was with the width of the term 'assist' and the range of activities that may fall within it. The Commission submitted to the Senate Committee that in order to conform to the principle of proportionality, the term must be defined in order to identify the nature of the risk that the offence is intended to address. The Commission submitted that the term could be defined by reference to specific examples, as has been done in the United States of America. Finally, the Commission submitted that its concerns in relation to proportionality were not allayed by the proposed exemptions and that the exemptions as presently drafted did not contain adequate carve outs for lawyers, journalists and family members.

The Commission also raised issues regarding the Bill's proposal to introduce a new Part IV into the Transfer of Prisoners Act 1983 (Cth) to allow the Attorney-General to make orders relating to the transfer of prisoners ('security transfer orders') between states and territories in the interests of national security. The Commission's principal concern in relation to that issue was that security transfer orders create the possibility for delay in bringing a remand prisoner to trial and accordingly, the possibility for prolonged pre-trial detention, which may contravene article 9 of the International Covenant on Civil and Political Rights.

Submission to the House of Representatives' Standing Committee on Family and Community Affairs' inquiry into child custody arrangements in the event of family separation

The Sex Discrimination Unit, with the assistance of the Legal Unit, prepared a submission, on behalf of the Commission, for the House of Representatives' Standing Committee on Family and Community Affairs' inquiry into child custody arrangements in the event of family separation. The submission was lodged with the committee on 21 August 2003. The Commissioner appeared before the committee on 26 October 2003 at a public hearing in Wyong, NSW, to further assist the committee in its enquiries.

The Commission's submission and the Commissioner's oral presentation received some media attention around this time. The Committee released its report on 29 December 2003 and formally tabled the report in Parliament on 10 February 2004.

Migration Litigation Review

In 2003, the Commission was invited to make submissions in relation to the Migration Litigation Review ('the Review'), being conducted by Ms Hilary Penfold QC, First Parliamentary Counsel, which was conducted under terms of reference issued by the Attorney-General on 27 October 2003. The Commission prepared a written submission which is available on its website at: www.humanrights.gov.au/legal/submissions/migration.html

In summary, the Commission submitted that there are a number of human rights issues which are particularly relevant to the more efficient management and disposition of migration cases. The Commission's primary concern was that efficient management and disposition did not come at the cost of the fundamental rights of people involved in migration litigation. The Commission's submission set out some of the concerns that arise from a human rights perspective which should, in the Commission's view, be given careful consideration in determining what, if any, changes to the current system may be appropriate.

Migration Amendment (Judicial Review) Bill 2004

The stated aim of the Migration Amendment (Judicial Review) Bill 2004 is to 'restore the original intention' of a number of procedural requirements, notably time limits for the commencement of applications, contained in the Migration Act. These had been rendered largely ineffective by the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 which had held that the time limits could only apply to lawful decisions where there was no excess of jurisdiction - requiring a determination by a court of the lawfulness of the decision even for applications brought 'out of time'.

The intended effect of the Bill is to impose a 28-day time limit upon applications for judicial review, with discretion to grant an extension for a further 56 days where the court considers it to be in the interests of the administration of justice. The Bill also provides the time limit for the High Court is to commence from the date of deemed, rather than actual notification.

The Bill was referred to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 15 June 2004. The Commission made written and oral submissions to the Committee, arguing that the imposition of strict procedural requirements, such as absolute time limits (84 days under the Bill), in cases involving refugee claims creates an unacceptable risk of 'refoulement' (returning a person to a country where they face persecution) and may therefore lead to a breach of human rights.

The Commission advocated an overriding discretion for a court to allow an application to be brought out of time where the interests of justice required such an extension of time, considering: the extent of the delay in bringing the application; the reason(s) for the delay in bringing the application; the prospects of success of the application; and any other relevant circumstance.

The Committee recommended that the Bill proceed subject to an amendment specifying that the time limit for applications to the High Court commence only upon actual rather than deemed notification of the relevant decision. This recommended change was said to take into account concerns with the Constitutional validity of the provisions in their original form.

Senate Select Committee on Ministerial Discretion in Migration Matters

The Commission lodged a submission to the Senate Select Committee on Ministerial Discretion in Migration Matters.

The primary message of the Commission's submission was that Ministerial discretion under section 417 of the Migration Act is insufficient to protect people who are seeking protection from refoulement under the International Convention on Civil and Political Rights (ICCPR), Convention on the Rights of the Child (CRC) and the Convention Against Torture (CAT).

The present system of protecting against refoulement is directed almost wholly at protecting those who fall within the Refugees Convention's definition of a 'refugee'. Under this system, the Ministerial discretion is the final safety net for those who believe that they are refugees but have not been recognised as such by the Refugee Review Tribunal. The Commission believes that this safety net should remain.

However, there are people who may not be refugees but must still be protected from refoulement because they face a real risk of fundamental human rights violations on return. For those people, the section 417 Ministerial discretion is the first and only protection. In the Commission's view, the protection against refoulement in the ICCPR, CRC and CAT is not a matter that can be satisfied by Ministerial discretion under section 417.

Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

In other work relating to Parliamentary Committees, the Commission made a submission to the Joint Standing Committee on Treaties in its inquiry into the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Optional Protocol). In that inquiry, the Committee considered whether Australia should sign and ratify the Optional Protocol.

The Optional Protocol aims to establish a system of regular visits by national and international bodies to places where people are deprived of their liberty, in order to better protect those people against torture and other cruel, inhuman or degrading treatment or punishment.

If ratified, the Optional Protocol would require Australia to:

  • allow regular visits to places of detention by a new international monitoring committee, and
  • create or designate a domestic body or bodies with powers to conduct similar visits and examine the treatment of Australian detainees in the context of Australia's obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The Commission made written and oral submissions to the Committee, arguing that the additional monitoring mechanisms provided for in the Optional Protocol would complement and reinforce the domestic and international mechanisms currently available to people in detention within Australia. It also suggested that the regular review of conditions and treatment of those people would ensure that broader systemic issues relating to their detention could be drawn to the attention of the Australian government at an early stage. That may result in less complaints being made to the Commission or the United Nations Committee Against Torture by such people.

A copy of the Commission's submission is available on the Commission's website at: www.humanrights.gov.au/legal/submissions/jscot.html

The Committee tabled its report on 24 March 2004. The majority of the Committee concluded that there is no immediate need for Australia to ratify the Optional Protocol. To date there has been no Government response to that report.

Sex Discrimination Amendment (Teaching Profession) Bill 2004

The Sex Discrimination Amendment (Teaching Profession) Bill 2004 (Cth) would insert a permanent exemption into the Sex Discrimination Act 1984 (Cth) (SDA) allowing persons to offer sex-specific scholarships to students enrolled in a teaching course, for the purposes of redressing the gender imbalance in the teaching profession. The Bill is said to be aimed at encouraging more males into the teaching profession.

The Bill was referred to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 11 May 2004. The Commission made a submission to that inquiry, arguing that the Bill would be unlikely to result in an increase in the number of male teachers, was inconsistent with objects and purposes of the SDA and put Australia at risk of breaching its international obligations assumed under the Convention on the Elimination of All Forms of Discrimination Against Women. A copy of the Commission's submission is available on the Commission's website at: www.humanrights.gov.au/legal/submissions/teaching_prof.html

A majority of the Committee recommended that the Bill proceed, subject to it being evaluated and reviewed after two years, to determine its effectiveness in encouraging more males into the teaching profession. The Committee also encouraged the Government to implement additional broader strategies and programs in order to address the complex reasons underlying the lack of males in the teaching profession.

The Bill remains before the Senate.

The Age Discrimination Act 2004 (Cth)

The Commission was involved in the consultation process in the development of the Age Discrimination Act 2004 (Cth), participating in all meetings of the Core Consultative Group and working parties. The Commission also made a submission to the Senate Legal and Constitutional Legislation Committee's inquiry into the provisions of the Age Discrimination Bill 2003, which is available on the Commission's website at:
www.humanrights.gov.au/legal/submissions/age_discrimination.html

While the Act is a welcome tool for the enforcement of the human rights for those who may suffer discrimination on the basis of their age, the Commission expressed some concerns during the consultative process and to the Senate Legal and Constitutional Legislation Committee. In particular, the Commission was concerned by the breadth of the exemptions and exceptions in the Act and the fact that establishing that discrimination has taken place is likely to be more difficult than under other federal discrimination legislation by reason of the inclusion of a 'dominant reason' test.

Civil Aviation Amendment (Relationship with Anti-Discrimination Legislation) Bill 2004

The Commission made a submission in May 2004 to the Senate Legal and Constitutional Affairs Committee Inquiry on the Civil Aviation Amendment (Relationship with Anti-Discrimination Legislation) Bill 2004.

The Bill amends the Civil Aviation Act 1988 to empower the Governor-General to make regulations that are inconsistent with current Commonwealth anti-discrimination laws if the inconsistency in necessary for aviation safety.

The submission raised some concerns regarding the effectiveness and appropriateness of this Bill as a means for achieving the objective of providing certainty in the relationship between civil aviation safety regulation and the Sex Discrimination Act and Disability Discrimination Act.

Disability Discrimination Amendment Bill 2003

The Senate referred the provisions of the Disability Discrimination Amendment Bill 2003 to the Senate Legal and Constitutional Affairs Committee for Inquiry and report. The amendments remove the prohibition on disability discrimination on the ground of a person's addiction to a prohibited drug. The provisions would not apply to people who are receiving treatment for their addiction.

The Senate Legal and Constitutional Affairs Committee Report on the Disability Discrimination Amendment Bill 2003 endorsed a number of the practical concerns which the Commission raised regarding this Bill as a means of achieving the objective of ensuring that employers and others are able to respond appropriately to issues of use of, or intoxication by, substances.

19 November 2004