Explanatory Memorandum
(Circulated by authority of the Minister for Major Projects, Territories and Local Government, the Hon Paul Fletcher MP)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Territories Legislation Amendment Bill 2016
This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Passenger Movement Charge Amendment (Norfolk Island) Bill 2016
This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill/Legislative Instrument
The Territories Legislation Amendment Bill 2016 and the Passenger Movement Charge Amendment (Norfolk Island) Bill 2016 (the Bills) continue the process of normalising Commonwealth legislative arrangements for Norfolk Island, to ensure that Norfolk Islanders enjoy the same rights, entitlements and responsibilities as other Australians.
The purpose of the Territories Legislation Amendment Bill 2016 is to:
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- Amend the Norfolk Island Legislation Amendment Act 2015 to ensure that New Zealand citizens holding a permanent visa residing on Norfolk Island have access to social security on 1 July 2016.
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- Amend the Norfolk Island Legislation Amendment Act 2015 to align the early claims period for family assistance payments with the early claims periods for social security and child support payments before 1 July 2016.
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- Amend the Child Support (Assessment) Act 1989 and Child Support (Registration and Collection) Act 1988 to extend the child support scheme to residents of the Indian Ocean Territories of Christmas Island and Cocos (Keeling) Island.
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- Amend the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 to require eligible Australian citizens and eligible other persons living on Norfolk Island to enrol and vote in federal elections and referendums from 1 July 2016.
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- Amend the Norfolk Island Act 1979 and the Acts Interpretation Act 1901 to extend all Commonwealth laws to Norfolk Island, unless expressly provided otherwise; and make the necessary consequential and transitional amendments to Commonwealth Acts to achieve this outcome (the Passenger Movement Charge Amendment (Norfolk Island) Bill 2016 is consequential to the primary measure).
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- Amend the Norfolk Island Act 1979 to broaden the definition of the Norfolk Island Regional Council to enable flexibility in the application of local government law.
Human rights implications
The following human rights are engaged by this package of Bills:
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- The right to take part in public affairs and elections;
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- The right to social security;
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- The right to an adequate standard of living;
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- The right to work;
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- The rights of parents and children;
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- The right to security of the person and freedom from arbitrary detention;
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- The right to freedom of assembly; and
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- The right to freedom of movement.
The right to take part in public affairs and elections
The Territories Legislation Amendment Bill 2016 (the Territories Bill) engages Article 25 (right to take part in public affairs and elections) of the International Covenant on Civil and Political Rights (ICCPR). In effect, Article 25 guarantees the right of all Australian citizens to take part in the conduct of public affairs, and to vote and to be elected at genuine periodic elections. The Territories Bill does not limit the right to vote provided for by Article 25 of the ICCPR. Rather, Schedule 4 of the Bill contributes to the realisation of Article 25 of the ICCPR, as all eligible Australians living in Norfolk Island will be required to enrol and vote in federal elections and referendums (rather than enrolment occurring on a voluntary basis).
Those Norfolk Island residents previously enrolled in a federal Division of a State will be represented by a smaller number of Senators under amendments made by the Territories Bill, given the respective number of Senators for the States and Territories. However, the Territories Bill does not remove representation as these individuals will still be represented by two Senators (as is the current Senate representation for the Australian Capital Territory). Establishing arrangements whereby Senators have a more dedicated responsibility for Norfolk Island is expected to improve the level of effective representation for all Norfolk Islanders, collectively and individually.
The right to social security
Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right of everyone to social security, including social insurance. A similar right is found in Article 26 of the Convention on the Rights of the Child (CRC) and Article 28 of the Convention on the Rights of Persons with Disabilities (CPRD). Under Article 2(1) of ICESCR, a country is obliged to take steps "to the maximum of its available resources, with a view to achieving progressively the full realisation" of the rights recognised in ICESCR.
The Territories Bill promotes the right of everyone to social security by addressing a measure in the Norfolk Island Legislation Amendment Act 2015 which had the unintended effect of excluding some New Zealand citizens resident on Norfolk Island from access to Australian social security payments. The Territories Bill also extends the application period for family assistance payments to 8 weeks from the current 4 weeks, and provides access to the Commonwealth child support scheme for residents of the Indian Ocean Territories. These measures are designed to increase accessibility and provide residents of all external territories with the same social services available to Australian citizens on the mainland.
The right to an adequate standard of living
Article 11(1) of ICESCR recognises the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. A similar right is found in Article 27 of the CRC and Article 28 of the CRPD. Under Article 2(1) of ICESCR, a country is obliged to take steps "to the maximum of its available resources, with a view to achieving progressively the full realisation" of the rights recognised in ICESCR.
The further normalisation of Commonwealth arrangements for Norfolk Island allows investments to be made to revitalise Norfolk Island's depressed economy and substantially reduces regulatory barriers to the participation of Norfolk Island businesses in the wider Australian economy. This will assist in improving the standard of living on Norfolk Island.
The right to work
Article 6(1) of ICESCR recognises the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts. Under this Article, States Parties undertake to take appropriate steps to safeguard this right. A similar right is found in Article 27 of the CRPD. Under Article 2(1) of ICESCR, a country is obliged to take steps "to the maximum of its available resources, with a view to achieving progressively the full realisation" of the rights recognised in ICESCR. Additionally, Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) requires States Parties to 'eliminate discrimination against women in the field of employment'.
Article 7 of ICESCR recognises the 'right of everyone to the enjoyment of just and favourable conditions of work'. The United Nations Committee on Economic, Social and Cultural Rights has stated that this right encompasses the right to fair wages and equal remuneration for work of equal value, safe and healthy working conditions, and rest, leisure and reasonable limitation of working hours, among other elements.
The Road Safety Remuneration Act 2012, which created a national Road Safety Remuneration Tribunal responsible for setting the minimum pay rates and conditions for road transport drivers, and the Independent Contractors Act 2006 which protects the rights of genuine independent contractors to enter into a contract for services without interference from third parties are extended to Norfolk Island in this Bill. The Workplace Gender Equality Act 2012 is also extended to Norfolk Island, which will provide a framework for monitoring gender equality in the workplace in Norfolk Island by requiring relevant employers with more than 100 staff to report on various gender equality indicators.
Many aspects of Commonwealth law provide stronger protections for workers than their Norfolk Island equivalent. These include provisions in the Fair Work Act 2009 concerning the National Minimum Wage, the National Employment Standards, modern awards (which include a range of entitlements for particular industries or occupations, such as higher minimum wages, overtime rates, penalty rates, loadings and allowances) and an unfair dismissal framework. Those provisions will be extended to Norfolk Island with appropriate transitional arrangements and can be expected to enhance the ability of workers on Norfolk Island to fully utilise their right to just and favourable conditions of work.
The rights of parents and children
Article 27 of the CRC recognises the right of children to an adequate standard of living. States Parties undertake to "take all appropriate measures to secure the recovery of maintenance for the children from the parents or other persons having financial responsibility for the child". Article 23 of the ICCPR provides a similar right to make protection for children in the event of dissolution of a marriage.
The Commonwealth child support scheme provides a means of assistance for primary carers that was previously not available in the Indian Ocean Territories. The scheme recognises the principle that both parents have common responsibilities for the upbringing and development of the child, and that States parties should provide appropriate assistance to parents and guardians in the performance of their child-rearing responsibilities. The extension of child support legislation to Christmas Island and the Cocos (Keeling) Islands resolves the anomalous exclusion of the Indian Ocean Territories from the national scheme; promotes the universal recognition of the right to an adequate standard of living for all Australian children; and provides practical assistance to parents who have primary caring duties for their children by providing a legal avenue to claim economic support from the other parent.
The right to security of the person and freedom from arbitrary detention
Article 9 of ICCPR provides that everyone has the right to liberty and security of person, and no one shall be subject to arbitrary arrest or detention, or deprived of liberty except on such grounds and in accordance with such procedures as are established by law.
The Territories Legislation Amendment Bill 2016 extends the Public Order (Protection of Persons and Property) Act 1971 to Norfolk Island. The Act creates a range of offences relating to Commonwealth Territories and on Commonwealth premises, including provisions relating to premises of certain investigatory authorities, diplomatic and consular premises, designated overseas missions and international organisations. Section 22 of the Act confers a power of arrest without warrant in relation to offences set out by the Act which occur in specified Commonwealth Territories or on Commonwealth premises.
From the Second Reading speech of the Public Order (Protection of Persons and Property) Bill 1971, the Act makes provision for situations that are sometimes fraught with the risk of discord, and occasionally, with the risk, or worse, the actuality, of violence. In a democracy, every citizen should be free, within limits imposed by laws designed to strike a reasonable balance between conflicting interests, to give expression to their views or to their sentiments by the processes of peaceful assembly.
Chapter 2 of the Criminal Code Act 1995 (Criminal Code) (General principles of criminal responsibility) applies to all offences against the Act. Section 10.5 of the Criminal Code also applies to an offence against section 13F of the Act (Person not to carry firearm, explosive substance or offensive weapon on authority premises), which provides that a person is not criminally responsible for this offence if the conduct constituting the offence is justified or excused by or under a Commonwealth law.
Section 22 of the Act provides that a "constable" (a member of the Australian Federal Police, or a member of a State or Territory police force) may without warrant arrest a person for an offence against the Act, if the constable has a reasonable ground to believe that the person has committed that offence and that proceedings against the person (by way of summons) would not be effective; or the arrest is necessary in order to prevent persistence or repetition by the person, the conduct of the kind constituting the offence, or the commission by the person of other offences against this Act.
Section 13D of the Act provides that an authorised officer (for an investigatory authority) may search a person and their personal effects when it is in the interests of security to do so. This may include screening and/or a frisk search. An authorised officer may also direct a person to leave authority premises (section 13E of the Act).
Where a person is found to be taking part in an assembly involving violence or apprehension of violence in a Territory or on Commonwealth premises; engages in unreasonable obstruction; uses a weapon, missile etc; or trespasses, they may be found guilty of an offence punishable on conviction by a fine of not more than 20 penalty units (in relation to a weapon, missile etc, a person may also face imprisonment for not more than 6 months). Similar provisions apply in relation to diplomatic and consular premises and personnel, designated overseas missions and international organisations.
Procedural safeguards are provided by the Act, such as the oversight of summary prosecutions by the Director of Public Prosecutions and provision for the court to dismiss a charge if particulars of the offence are not furnished. The provisions under the Act which permit deprivation of liberty are not arbitrary, and are sufficiently precise to enable people to regulate their behaviour. The requirement that the obstruction be "unreasonable" circumscribes the discretionary power provided to the police officer, and imposition of a fine is no more restrictive a measure than is required to achieve the purpose of the limitation.
Accordingly, the offences in relation to Commonwealth premises and the power of arrest provided under this Act are rationally connected to the legitimate objective of protecting national security by placing conditions on access to Commonwealth premises. The offences related to violent assemblies under the Act are also rationally connected to the legitimate objective of protecting public order. For these reasons, the limitation on rights created by extension of this Act to Norfolk Island is permissible because it is reasonable, necessary and proportionate.
The right to freedom of assembly
Articles 21 and 22 of ICCPR provide for a right of peaceful assembly and protest.
Section 8 of the Act provides that a member of a Police Force of the rank of Sergeant or above may give a direction to disperse certain assemblies and use such force as he or she believes, on reasonable grounds, to be necessary for that purpose and is reasonably proportionate to the danger from the continuance of the assembly.
The right to peaceful assembly is not affected by the extension of the Public Order (Protection of Persons and Property) Act 1971 to Norfolk Island, as the offences established are conditional upon a reasonable apprehension that violence to persons or property will occur, or the offence requires that violence be committed by a person. Again, the requirement that the apprehension be "reasonable" appropriately circumscribes the discretionary power provided to the police officer, and dispersal of the assembly is no more restrictive a measure than is required to achieve the purpose of the limitation.
The right to freedom of movement
Article 12(1) of the ICCPR provides that everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. A similar right is found in Article 10 of the CRC, Article 18 of the CRPD, Article 5 of the CERD and Article 15 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
The Passenger Movement Charge Amendment (Norfolk Island) Bill 2016 (the PMC Amendment Bill) will amend the Passenger Movement Charge Act 1978 to replicate the arrangements that apply in the Indian Ocean Territories so that most departures from Norfolk Island to another country will attract the Passenger Movement Charge, which is not currently the case. The PMC Amendment Bill will recognise the special air transport arrangements in place on Norfolk Island, whereby travel to the mainland may require transit through an international country from time to time. The PMC Amendment Bill will provide that a person is exempt from liability for passenger movement charge if they depart Norfolk Island for another country (or for an installation in the Joint Petroleum Development Area) with the intention of returning to another place in Australia within 7 days. These amendments promote the right to freedom of movement by reducing financial barriers to movement for Norfolk Islanders who wish to travel to the mainland.
Conclusion
The Bills are compatible with human rights because they advance the protection of human rights. To the extent that the Bills may limit human rights, those limitations are reasonable, necessary and proportionate.