Wednesday, 24 November 2021
Human Rights Committee; Report
On behalf of the Parliamentary Joint Committee on Human Rights, I present the committee's report entitled Human rights scrutiny report: report 14 of 2021.
Report made a parliamentary paper in accordance with standing order 39(e).
by leave—I am pleased to table the Parliamentary Joint Committee on Human Rights' 14th scrutiny report of 2021. As usual, this report contains a technical examination of the compatibility of legislation with Australia's obligations under international human rights law. In this report, the committee has considered 91 new legislative instruments and commented on two of those. The committee has also commented on government amendments to one bill and has concluded its consideration of two bills and two legislative instruments previously introduced.
In particular, the committee is seeking further information in relation to the government amendments to the Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill 2021. The amendments seek to allow the Quality of Care Principles to set out who can give consent to the use of a restrictive practice on a person in aged care if that person lacks capacity to give consent. The amendments also provide immunity from any civil or criminal liability for the aged-care provider in relation to the use of such practices. The committee considers that these measures engage and may limit the rights of persons with disabilities and is seeking further information in relation to this. While it is not the usual practice of this committee to comment on amendments to a bill, the committee undertook an inquiry in 2019 into the legislation surrounding the use of restrictive practices in aged care, and as such this is an issue the committee continues to monitor closely.
This report also contains the committee's concluded comments regarding the Electoral Legislation Amendment (Voter Integrity) Bill 2021. As members no doubt know, the mandate of this important committee is to examine all bills and legislative instruments that come before either house of parliament for compatibility with Australia's human rights obligations under international human rights treaties ratified by Australia and to report to both houses of parliament on that issue. To achieve this, committee members consider expert legal advice as to the application of international human rights law. On this basis, after considering this advice and the minister's advice to the committee, the committee considers it has not been established that this bill seeks to address an issue of public or social concern that is pressing and substantial enough to warrant limiting the right to participate in public affairs and the right to equality and nondiscrimination, or that it is proportionate to the stated objectives. The committee draws this matter to the attention of the minister and parliament and has concluded its examination of this matter.
Finally, the committee has concluded its examination of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021. The committee considers that, while there are various measures in this bill that would promote the rights of persons with disability, allowing the CEO to vary or reassess an NDIS participant's plan on their own initiative and without the participant's consent may limit the rights to health and an adequate standard of living, as well as the rights of persons with disability. The committee considers that the proportionality of the measure may be assisted where the bill is amended to provide that, so far as is reasonably practical, the CEO should obtain the participant's consent to vary their plan, and the CEO's power to vary a participant's plan on their own initiative should be limited to variations that would benefit the participant.
I encourage all parliamentarians to carefully consider the committee's analysis. With these comments, I commend the report to the chamber.
by leave—I spoke on the tabling of this report, but I want to add further following the information requested from the relevant ministers, which has been provided and which we've included in our final comments. Firstly, the Electoral Legislation Amendment (Voter Integrity ) Bill 2021 seeks to require voters to present identification documentation or an attestation from another enrolled person in order to cast an ordinary vote during the prepolling period and on polling day. I note that, where these requirements are not met, a voter can cast a declaration vote. I put that on the record. But this bill engages and may limit the right to take part in public affairs and the right to equality and nondiscrimination.
Australians currently have this right. These rights may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective. The committee did seek further advice from the minister, including: evidence that there is a problem that warrants limiting the rights of Australians, that's Legislation 101; what modelling has been done to assess how this measure would affect voter turnout, that's Legislation 102; and whether this measure is likely to have a disproportionate impact on certain groups, that's Legislation 201. The minister provided the advice but did not provide any further evidence to demonstrate that there is currently a lack of public confidence in Australian electoral processes. That is a 'fail' in all three of the subjects that I've flagged. The minister didn't provide any evidence that there have been cases of voter impersonation in previous elections. The legal advice to the committee is that 'it is not possible to conclude that this issue addresses a pressing or substantial public or social concern'.
The minister pointed to Queensland voter identification laws to predict how this would affect voter turnout. The minister loudly said that the 2015 Queensland voter election, when voter ID laws were in place, had a higher voter turnout than the turnout since voter identification laws had been repealed. That was the election to get rid of 'Can-do Campbell Newman'. However, the minister failed to mention that the turnout in Queensland was higher prior to 2015, before voter identification laws were implemented. Voter turnout in the 2012 Queensland election was 91 per cent compared to 89.9 per cent in 2015. It might be worth the minister mentioning that key fact.
The minister's response did not address how voter identification requirements would be effective in preventing people from voting multiple times at different locations with the same ID. The committee still has concerns that certain vulnerable groups may be disproportionately impacted by this measure—Indigenous persons in remote communities, of whom there are plenty in Queensland; people experiencing homelessness., of whom there are about 100,000 throughout Australia; and people fleeing domestic violence, particularly women and children. The legal advice to the committee notes that the only alternative to producing identification still requires a person to state their current address, which may be particularly difficult for those people experiencing homelessness.
The United Nations Human Rights Committee has stated that the right to vote at elections and referendums must established by law and may be subject only to reasonable restrictions, such as setting a minimum age limit for the right to vote. There's no mention of intelligence tests coming out of the United Nations just yet. Under international human rights law the onus is on the state to demonstrate that any limit on the right to participate in public affairs and the right to equality and nondiscrimination is necessary, reasonable and proportionate. The legal advice given to the human rights committee was that there is a risk that this measure would impermissibly limit the right to participate in public affairs and the right to equality and nondiscrimination. I would encourage the minister to read the very thorough and considered examination of these proposals contained in this report that has been tabled by the chair, the member for Mallee.
I would also encourage all members of this House to read this report with respect to the proposed voter ID laws, as they will be called to vote on them soon. It might exercise their conscience, if they are currently willing their conscience out into the political daylight, as I note the member for Dawson has indicated. It is interesting to hear that he spent 11 years without using his conscience! I encourage them to ask why these laws are necessary when there is a real risk to the right to participate in public affairs and the right to equality and nondiscrimination.
The second bill the committee has now made concluding remarks on is the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Bill 2021. This bill will allow the plan of a participant in the National Disability Insurance Scheme to be varied or reassessed. This could occur on the initiative of the CEO or at the request of the participant. The committee requested further advice from the minister, and that advice has now been received.
The measures in this bill engages Australia's obligations under the Convention on the Rights of Persons with Disabilities. A limitation on those rights must pursue a legitimate objective, namely one that is necessary and addresses an issue of public or social concern that is pressing and substantial enough to warrant limiting the rights of Australians with disability. The committee noted that where a participant's supports are reduced or adversely changed as a result of the CEO varying or reassessing their plan the measure would engage and may limit the right to health and an adequate standard of living as well as the rights of persons with disability, including the right to live independently and be included in the community. As those who follow politics would know, that was the whole point of the NDIS. The committee also noted that some questions remain as to whether the measure is a proportionate means of achieving these objectives, particularly as much of the detail is to be included in the as yet unmade NDIS rules—something that would be outside the scrutiny of many people in this parliament.
Finally, the committee noted it is not clear that the measure represents the least rights restrictive approach to achieving the stated objective. The committee notes that a less rights restrictive way of achieving the stated objectives may be to require the consent of the participant to vary their plan and to limit the CEO's power to vary a participant's plan on their own initiative to variations that would benefit the participant. Those two words, 'consent' and 'benefit', were core concerns of the NDIS when Labor brought that wonderful program in. The committee has suggested some amendments to the bill in order to assist the proportionality of this measure, and I encourage the minister to make the suggested amendments as contained in the report.
I encourage all members to read the committee's report on the two bills that I've mentioned that are considered in report 14 of 2021 and to read the whole of the scrutiny report, which also considers several other bills and legislative instruments. I commend the report to the House.