Senate debates

Wednesday, 5 February 2020


Human Rights Committee; Report

6:26 pm

Photo of Sarah HendersonSarah Henderson (Victoria, Liberal Party) Share this | | Hansard source

On behalf of the Parliamentary Joint Committee on Human Rights, I present the first report of 2020: Human rights scrutiny report 1 of 2020. I move:

That the Senate take note of the report.

I'm very pleased to speak to the tabling of the Parliamentary Joint Committee on Human Rights' first scrutiny report of 2020.

This report contains a technical examination of legislation with Australia's obligations under international human rights law, as required under the committee's statutory mandate. It sets out the committee's consideration of 79 bills introduced into the parliament between 14 October and 5 December 2019, one bill previously deferred, and legislative instruments registered on the Federal Register of Legislation between 20 September and 3 December 2019.

In this report, the committee seeks further information in relation to 11 bills and four instruments. The process of requesting information from the legislation proponent reflects the committee's role in establishing and maintaining a dialogue regarding the human rights implications of legislative measures, which contributes to the broader respect for and recognition of human rights in Australia.

The committee has made concluding remarks in relation to four bills and one instrument. For example, the committee has concluded its examination of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019. The measures proposed in this bill would provide that a person who is a dual national ceases to be an Australian citizen if they act inconsistently with their allegiance to Australia by engaging in certain terrorist conduct. The committee has noted the legal advice that these measures may engage and limit a number of human rights, including the rights to freedom of movement and liberty, and the rights of the child and protection of the family. However, limits on these rights may be permissible where a measure is prescribed by law, seeks to achieve a legitimate objective, is rationally connected to (that is, effective to achieve) that objective, and is proportionate to that objective.

As the minister's discretion to cease citizenship is limited to those who engaged in specified terrorist conduct, the committee considers that whether a person has 'repudiated their allegiance to Australia' is sufficiently certain so as to meet the 'quality of law' test.

The committee also considers that removing a person's citizenship seeks to achieve a legitimate objective in that it ensures that there is less prospect of a person engaging in conduct which harms the Australian community. It also considers the measures are effective to achieve (that is, rationally connected) to those objectives based on the minister's advice, as supported by the Australian Federal Police and the Australian Security Intelligence Organisation, that the existing citizenship cessation provisions have been effective, in conjunction with other counterterrorism tools and mechanisms, in protecting the integrity of Australian citizenship and the Australian community.

Finally, the committee considers the measures are proportionate as the ministerial decision-making model means that the minister will consider individual circumstances in assessing the public interest in whether a person should remain an Australian citizen, which is intended to ensure that any interference with the family, the right to re-enter one's own country or the right to freedom of movement is not arbitrary. As such, the committee considers the cessation of citizenship provisions are compatible with the rights to freedom of movement and liberty and the rights of the child and protection of the family.

The committee also considers that as the power to cease a person's citizenship, where the person is in Australia, will not directly result in them being liable for removal from Australia, these measures do not directly engage the obligations of non-refoulement and a right to an effective remedy. The committee welcomes the minister's commitment to comply with Australia's non-refoulement obligations.

The committee has also concluded its examination of the Social Security (Administration) Amendment (Income Management to Cashless Debit Card Transition) Bill 2019, which seeks to expand the operation of the cashless debit card trial. The committee considers the bill seeks to achieve a number of legitimate objectives, including reducing immediate hardship and deprivation, reducing violence and harm, encouraging socially responsible behaviour and reducing the likelihood that welfare payment recipients will remain on welfare and out of the workforce for extended periods of time. The committee believes it is important to reiterate the engagement of positive human rights in the bill, including the rights of the child, the right to protection of the family, the right to dignity and the right to health. These measures provide welfare payment recipients with the ability to ensure that a higher portion of their payments are directed to essential living costs, such as food and household bills, while prohibiting expenditure on alcohol and gambling. The committee therefore considers that any limitations on human rights pursuant to this bill are justifiable.

Finally, the committee has concluded its examination of the Social Services Legislation Amendment (Drug Testing Trial) Bill 2019. This bill provides for the trialling of mandatory drug testing for new recipients of Newstart allowance and youth allowance. The committee notes the legal advice that the bill engages a number of human rights, including the rights to privacy, social security, an adequate standard of living, and equality. The committee reiterates that this is a world-first trial and as such the committee accepts that there is some inevitable uncertainty as to whether the measures are a proportionate means of achieving the legitimate objectives of the bill. However, the committee considers that the trial seeks to achieve the important objective of identifying and supporting individuals who may have drug dependency issues and assisting them in securing employment.

With these comments, I commend the committee's report No. 1 of 2020 to the Senate.

6:33 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

I also rise to speak to the report of the Parliamentary Joint Committee on Human Rights that I am a member of. I want to make the point that the Australian Labor Party members of this committee, along with me, representing the Australian Greens, have issued a dissenting report which comes to different conclusions in many regards than the majority report does.

First, I want to speak to the reporting on the—

Photo of Sarah HendersonSarah Henderson (Victoria, Liberal Party) Share this | | Hansard source

Acting Deputy President, I wish to just clarify one thing with the Senate. That was a report handed down by the whole committee. There is no dissenting report. The committee report has been agreed as a whole, and so I take exception to the remarks that Senator McKim is making now.

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

I guess that wasn't a point of order, but we can take that as a debating point. I'll take the senator's comments—

Photo of Mehreen FaruqiMehreen Faruqi (NSW, Australian Greens) Share this | | Hansard source

Senator McKim, could I just make a quick ruling. Senator Henderson, that is indeed not a procedural point; it is a debating point, so there is no point of order. Senator McKim.

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

Thank you, but I will take the senator's remarks under advisement. I just want to make it very clear that the view of the committee with regard to the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019, which has been accurately categorised by the committee—that it is a bill to provide the Minister for Home Affairs with a discretionary power to determine that a person ceases to be an Australian citizen in certain circumstances—is contestable. This is a piece of legislation that won't be supported by the Australian Greens because it certainly does engage the obligations of non-refoulement that the chair has just spoken about.

I go to the committee report and I quote from page 128—2.62 in the report. The report says:

The committee notes that the cessation of a person's citizenship would result in a person located in Australia being granted an ex-citizen visa, and as this visa could be subject to cancellation on character grounds, the person may become an unlawful non-citizen and liable for removal from the country. The committee notes the legal advice that this therefore engages Australia’s obligations of non-refoulement and the right to an effective remedy.

That's all well and good, as far as it goes, but, having said that the committee notes the legal advice that the legislation does, therefore, engage Australia's obligations of non-refoulement, the report, in 2.64, goes on to say:

... the committee does not consider that the measures directly engage the obligations of non-refoulement and a right to an effective remedy.

In other words, the committee's finding in 2.64 is contrary to the comment in 2.62 that the legal advice says that the legislation does engage Australia's obligations of non-refoulement.

We won't be supporting this legislation because, in fact, it is draconian legislation that joins the well over 200 pieces of legislation that have passed through state, territory and Commonwealth parliaments in the last 20 years in this country which remove fundamental rights, freedoms and liberties from our citizens and continue the slow erosion of rights in this country. It is a zombie shuffle that this country is engaged in on the road to a police state. It is a zombie shuffle down a dark and dangerous path where rights are being eroded by a collusion between the Liberal-National members who currently sit in government and the Labor members who currently sit in opposition. I say now it's time for a charter of rights in Australia.

We are the only liberal democracy in the world that does not have some form of either a constitutionally embedded or a legislatively enshrined charter of rights. It's time that we came out of the Dark Ages in this country and had a charter of rights. If we did have a charter of rights, it would make it far more difficult for this government, with the collusion in most instances of the Australian Labor Party, to remove the rights, freedoms and liberties that so many tens of thousands of Australians have died or been injured—including ancestors of mine—fighting to protect and defend. It's a very dangerous path that we're on as a country. And, of course, we need to do all we can to keep our people safe. But we need a conversation in this country about how many of our rights and freedoms we are collectively willing to give away in the interests of maintaining Australia as a safe a place as possible.

The report also goes to the Social Security (Administration) Amendment (Income Management to Cashless Debit Card Transition) Bill 2019. As an aside, with the indulgence of the Senate, I just want to mention Senator Rachel Siewert's work in standing up for people on Newstart and, more broadly, for people who are in the social security system. She's been an absolute warrior for those people. Again, we believe that this bill engages and limits the right to privacy, to social security, to equality and nondiscrimination. They are four very important rights. As set out in the international human rights legal advice contained in the concluding comments of the report of the Parliamentary Joint Committee on Human Rights, the measures associated with this bill significantly intrude into the freedom and autonomy of individuals to organise their private and family lives by making their own decisions about the way in which they spend their social security payments. I also believe that the measures contained in the legislation have a disproportionate impact on First Nations people. It's is unclear whether the proposed cashless welfare scheme expansion is rationally connected with its stated objectives, noting the mixed results outlined in the trial evaluations completed to date. So, again, the Australian Greens will not be supporting this legislation.

I sat on this committee through the entirety of the previous parliament, and since the last election I've been sitting on the committee for the entirety of the current parliament. I'm sad to say that this committee is becoming politicised in this current term of the parliament in a way that I had not seen in my previous term and in a way that I do not believe it has ever been politicised since its inception. This is a technical committee with a crucial mandate to examine bills for compatibility with rights and freedoms recognised or declared by the seven core international human rights treaties to which Australia is a signatory, and this committee should not be treated as a rubber stamp for government policy or an uncritical propagator of government rhetoric. It would be an extremely poor reflection on members of this committee if that were the case.

6:43 pm

Photo of Patrick DodsonPatrick Dodson (WA, Australian Labor Party, Shadow Assistant Minister for Reconciliation) Share this | | Hansard source

As a member of the Parliamentary Joint Committee on Human Rights, I wish to make a few brief comments. I support all that Senator McKim has said. I am new to this committee, and this appals me when this committee is meant to be non-partisan and is meant to be seeking to ensure that our parliament does comply with the highest standards of human rights in what we do as legislators.

And I'm saddened that, during the period I've been there, there have been two dissenting reports now, from the Greens and the Labor Party, in relation to this. I want the Senate to understand this: that this is not a joyful thing to be doing. It's quite disturbing and sad to see that, for a committee that was set up to be as objective as possible, and to be responsive as possible to the legal advice in relation to the meaning of the measures and standards required for the rights of human beings—in whatever conditions they might be; whether they're children or people that are adversely affected by something or Indigenous peoples—dissenting reports are now becoming a feature. I think that the Senate ought to take stock of this and bring it to truck, because it does no credit to this chamber to have people like Senator McKim or myself coming here to recite the differences we have within a committee that should really come to a considered and concluded view before we report to this important chamber.

I want to make those remarks because it is one of the few committees of the Senate where we can transcend the partisanship which we normally engage in, and we can think to better conditions for the rights of others, and we can seek higher standards being implemented in our legislation. And that applies to whoever is in government, whether it's the Labor Party in government or someone else. It should apply without any equivocation. These standards are there for us to emulate as global citizens—not just to be played with because of particular political opportunism or to preserve embarrassment against the current minister or the government or whomever. So I would simply appeal to senators to read closely the report, but also read closely the dissenting reports, and, more than that, to take stock of the marked shift in this committee's work. It is a committee of the Senate, and it's here to do the work of the Senate on the most treasured things: that is, the rights of individuals, and to uphold those rights to the highest standards. And, when that's not done, then we—unfortunately—have to point that out. I regret to say that one of the touchstones to our authenticity as a civilised, mature nation is how we, in fact, uphold international standards and rights. To tamper with them, particularly when that's contrary to legal advice by experts in the field, is an appalling thing.

I may say something further: I was appalled at the fact that the dissenting reports weren't mentioned by the chair. Those dissenting reports related to the three particular bills that the chair specifically spoke to, but the chair neglected to highlight the fact that there was dissent by members of the Greens and by ourselves on these particular matters. I could go to the substance of what we said, but I will just go to one. I will go to the cashless benefit card legislation, the Social Security (Administration) Amendment (Income Management to Cashless Debit Card Transition) Bill. What we have said by our dissent in relation to that bill was that, as such, the dissenting members consider it has not been clearly demonstrated that the extension of the cashless benefit 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.

So we draw the human rights concerns to the attention of the minister in the parliament. It's not as if we simply want to raise these things to embarrass our chair, or to bring embarrassment and be odious to this chamber, but, if we persist if this way, I'm afraid we will be bringing disrepute to this house.

Photo of Mehreen FaruqiMehreen Faruqi (NSW, Australian Greens) Share this | | Hansard source

Senator Dodson, could you seek leave to continue your remarks?

Photo of Patrick DodsonPatrick Dodson (WA, Australian Labor Party, Shadow Assistant Minister for Reconciliation) Share this | | Hansard source

I seek leave to continue my remarks.

Leave granted.

Debate interrupted.