Law Reform Submissions 2009
Victoria’s Integrity and Anti-Corruption System Review
In March 2010, PILCH made a submission to the Public Sector Standards Commissioner (PSSC) in relation to the PSSC’s review of the efficiency and effectiveness of Victoria’s integrity and anti-corruption systems.The submission focused on an analysis of Victorian investigation mechanisms currently available in respect of complaints of abuses of police powers and the extent to which those mechanisms fall short of human rights obligations. In making its submission, PILCH examined the implications of Australia’s anticipated ratification of the Optional Protocol to the United Nations Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). PILCH submitted that the OPCAT principles are reflected in the Victorian Charter of Human Rights and Responsibilities Act 2006 and that by extension, these rights imply an obligation to establish and maintain a credible complaints investigation procedure, particularly with regard to complaints regarding human rights abuses by Victorian Police.The submission makes recommendations for substantial reform of the Victorian system to create a more credible, accessible and efficient police accountability mechanism.The PSSC is required to provide its final report to the Premier by 31 May 2010.
A Strategic Framework for Access to Justice in the Federal Civil Justice System
In November 2009, PILCH made a submission to the Attorney-General’s Department on the report of the Access to Justice Taskforce on A Strategic Framework for Access to Justice in the Federal Civil Justice System.
Applying a human rights approach to access to justice, the submission proposes recommendations to encourage and ensure equitable access to the legal system. The submission focuses on such issues as public interest litigation, legal costs, non-court models of dispute resolution, self-represented litigants and legal assistance in regional, rural and remote areas.
The Attorney-General’s Department is expected to respond to submissions in 2010.
Concluding Observations of the Human Rights Committee
In November 2009, PILCH made a submission to the Attorney-General in relation to the UN Human Rights Committee’s recent Concluding Observations on Australia.
The submission makes concrete suggestions on how the Australian Government might implement the Concluding Observations, with a view to ensuring full compliance with its obligations under the International Covenant on Civil and Political Rights. The submission focuses on such issues as the rights of Indigenous Australians, homelessness, inequality, the death penalty, terrorism and immigration.
Review of the Equal Opportunity for Women in the Workplace Act 1999 (Cth)
In October 2009, PILCH made a submission to the Office for Women in relation to its review of the effectiveness and efficiency of the Equal Opportunity for Women in the Workplace Act 1999 (Cth).
In its submission, PILCH asserted that whilst some of the obstacles that impede equality in the workplace have been removed (or partially removed), many barriers, including wrongful gender stereotyping and gender-based violence against women, remain socially entrenched. PILCH submitted that the Australian Government and the Equal Opportunity for Women in the Workplace Agency need to take positive steps to remove the obstacles that continue to impede equal employment opportunities for women.
PILCH’s submission emphasised the need to transform the traditional division of breadwinning and caregiving responsibilities between men and women, arguing that such a transformation is necessary to ensure that caregiving is viewed as an important and valued responsibility of men and women, as well as the community as a whole. PILCH submitted that it is also necessary to ensure that women’s full participation in society is viewed as beneficial not only for women, but also the entire Australian community.
Inquiry into the Migration (Complementary Protection) Bill 2009
In September 2009 PILCH made a submission to the Standing Committee on Legal and Constitutional Affairs into the Migration (Complementary Protection) Bill 2009. PILCH’s submission dealt with the Bill in in relation to Australia's treaty obligations pursuant to the Convention against Torture and the International Covenant on Civil and Political Rights.
The draft legislation undertakes to amend the Migration Act 1958 to better adhere to Australia’s obligations under international human rights laws, in particular to seek to prevent persons seeking asylum from being returned (refoule) to states where they would be at risk of torture. PILCH welcomed this proposal to better adhere to Australia's obligations under international human rights law.
However, PILCH was concerned that the Bill did not go far enough to meet these obligations. In particular PILCH submitted to the committee that:
- The construction of the Bill’s test to qualify for a protection visa, and the inclusion of a provision classifying ineligible persons means that the Bill does not fully adhere to these obligations.
- The Bill does not apply an absolute prohibition on non-refoulement which in PILCH’s view is necessary to ensure compliance with its obligations; and
- The Bill does not prevent non-citizens seeking asylum from being sent to other States where they may be placed at risk of torture.
PILCH would like to thank the Human Rights Group at Mallesons Stephen Jaques for its enormous contribution to this submission.
Draft of the Extradition and Mutual Assistance Bill
In August 2009, PILCH made a submission to the Attorney-General’s Department on the Exposure Draft of the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2009 (Cth). PILCH’s submission addressed those parts of the draft legislation that relate to discrimination, torture and the death penalty.
The draft legislation proposes to extend the grounds on which the Government must refuse to extradite a person to a foreign country to include discrimination on the ground of sex. PILCH welcomed this proposal and, in this regard, underscored the Government’s obligations to respect, protect and fulfil the rights to non-discrimination and equality. PILCH expressed its concern, however, that the proposal did not include other recognised grounds of discrimination, such as sexual orientation and gender identity.
The draft legislation proposes to include torture as a mandatory ground for refusing to provide assistance to a foreign country. PILCH welcomed this proposal, but submitted that it should be expanded to include cruel, inhuman or degrading treatment or punishment.
In addition, the draft legislation proposes to expand the circumstances in which the Attorney-General must refuse to provide assistance to a foreign country that may result in the imposition by that country of the death penalty. PILCH endorsed the proposal but expressed its concern regarding the breadth of the discretion granted to the Attorney-General. PILCH submitted that the Attorney General should only be able to exercise his or her discretion where he or she has obtained a guarantee from the country seeking assistance that the person will not be subject to the death penalty, or such assistance is exculpatory. PILCH also urged the Attorney-General to amend the Australian Federal Police Practical Guide on International Police to Police Assistance in Death Penalty Charge Situations to ensure its compliance with international human rights law.
Inquiry into the Marriage Equality Amendment Bill
In August 2009, PILCH made a submission to the Senate Standing Committee on Legal and Constitutional Affairs on its inquiry into the Marriage Equality Amendment Bill 2009 (Cth) (Bill). The Bill’s objectives are to:
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remove discrimination on the grounds of sex, sexuality or gender identity;
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recognise that freedom of sexuality and gender identity are fundamental human rights; and,
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promote acceptance and the celebration of diversity.
In its submission, PILCH highlighted the need to adopt a human rights-based approach to the Marriage Act 1961 (Cth) (Act) and, in so doing, endorsed the legal recognition of same-sex marriages. PILCH drew upon jurisprudence and legislation in international and comparative jurisdictions, such as South Africa and Canada, that have already afforded legal recognition to same-sex marriages. PILCH also highlighted public support for this form of marriage within Australia.
In its submission, PILCH endorsed the Bill and urged the Federal Parliament to enact it into law, as a matter of priority. PILCH further recommended that the Australian Government should:
- ensure that the Act is informed by and reflects the rights to non-discrimination on the grounds of sex, sexual orientation and gender identity;
- amend the definition of marriage in the Act to allow for legal recognition of same-sex relationships as marriage; and,
- recognise same-sex marriages that have been lawfully contracted in other countries.
The Senate Committee is expected to report on the inquiry by 26 November 2009.
Inquiry into the effectiveness of Commonwealth House Standing Committees
In August 2009 PILCH made a submission to the inquiry of the Standing Committee on Procedure into the effectiveness of Commonwealth House Standing Committees.
In its submission, PILCH outlined the need to improve Parliament’s engagement with human rights and how House Standing Committees could effectively assist Australia meet its human rights obligations. The submission also examined the imperatives for increasing efficiency and accountability of House Standing Committees. PILCH broadly made two sets of recommendations to the Standing Committee on Parliamentary Procedure:
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that there be established a Joint Parliamentary Committee on Human Rights which would lead parliamentary engagement with human rights issues; and
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that amendments to the Standing Orders be made to avoid duplication of effort and increase accountability, such as requiring committees to identify and consider previous reviews on similar topics and inclusion of mechanisms to track the government’s response to recommendations.
Response to the Interim Report to the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)
On 3 August 2009, PILCH provided a response to the Interim Report to the independent review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Act). The response provides further commentary and recommendations to those which were provided in PILCH’s original submission to the review in May 2009.
In its response, PILCH clarifies and reinforces the human rights imperative and logic for the introduction of a climate change trigger, which was not addressed in the Interim Report. The PILCH response also describes how human rights considerations can assist and be utilised in making a climate change assessment under the Act.
The PILCH response also emphasises the importance of appropriate mechanisms to facilitate public participation in environmental management, by commenting upon aspects of the Interim Report which relate to that part of our original submission.
Review of the Migration Amendment (Immigration Detention Reform) Bill 2009
On 31 July 2009, PILCH made a submission to the Senate Standing Committee on Legal and Constitutional Affairs into the Migration Amendment (Immigration Detention Reform) Bill 2009 (Cth). PILCH commended the Bill's aim of implementing a more humane detention policy which will fulfil Australia’s obligations to a greater extent under international conventions.
However, PILCH highlighted certain gap areas within the Bill in light of this aim and made further recommendations, including the following:
- the abolition of mandatory detention in favour of community-based initiatives
- the prohibition of children being placed in detention
- the introduction of clear and certain time limits for detention
- legislated guidelines to reduce discretionary decision-making
- periodic judicial review occurring automatically to prevent indefinite detention
- the abolition of bonds/sureties for release
- the return of all excised territories to the migration zone
The Committee released its report on 20 August.
Counter-Terrorism and Human Rights: Submission on National Security Legislation Monitor Bill
On 27 July 2009, PILCH and the Human Rights Law Resource Centre made a Joint Submission to the Senate Standing Committee on Finance and Public Administration in relation to the National Security Legislation Monitor Bill 2009. The Bill establishes the National Security Legislation Monitor to review the operation, effectiveness and implications of counter-terrorism and national security legislation and report his or her findings and recommendations annually.
In September 2008, PILCH and the HRLRC independently made submissions to the Senate Legal and Constitutional Affairs Committee Inquiry into the Independent Reviewer of Terrorism Laws Bill 2008 (No 2). A number of positive changes have been made to the Bill since the report of the Senate Standing Legal and Constitutional Affairs Committee in October 2008.
While the Joint Submission strongly supports the establishment of the Monitor, it proposed number of recommendations to ensure a transparent, independent and holistic framework of review of terror laws, compliant with international human rights obligations. Examples of recommendations proposed in the submission include:
- Clarifying the definition of ‘counter-terrorism and national security legislation’ to ensure that any legislation which might impact upon the prevention, detection or prosecution of a terrorist act is covered, including new legislation
- Amending the Bill to expressly require the Monitor, in conducting a review, to consider the human rights impacts of Australia’s counter-terrorism and national security legislation and the compatibility of such legislation with international human rights standards and obligations
- Requiring the Monitor to have regard to a non-exhaustive list of relevant considerations when determining review priorities, including but not limited to: Australia’s human rights obligations; the extent to which the laws under review alter fundamental legal principles; whether the relevant laws are effective and workable, both within their own terms, and in combination with other legislation; and whether there are any less-restrictive means by which the objectives of the relevant legislation could be achieved.
Review of the General Insurance Code of Practice
In July 2009, PILCH and the Flemington Kensington Community Legal Centre made a joint submission to the Insurance Council of Australia’s review of the General Insurance Code of Practice. The review considered in part whether the Code improves consumer confidence in the general insurance industry.
Our submission noted that confidence in the insurance sector is informed by the experiences of those who have no insurance, but who are third parties to insurance contracts, either as debtors or claimants. These people often present as our clients.
The submission makes recommendations for reform of the Code so as to better address third party disputes, and recommended that the Code be amended by:
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Expanding on those provisions which are applicable to, or enforceable by, third parties, including those which relate to claims and complaints handling.
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The itemisation of specific factors at Code 3.11 which would require an insurer to consider alternative repayment terms, and adoption of new provisions which would require an insurer to consider debt waiver in particular circumstances.
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Improved training of staff, advisors and collection agents to ensure adherence to the ACCC and ASIC ‘Debt Collection Guidelines: for Collectors and Creditors’, pursuant to Code 3.10
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Amendment of Code 3.12 so that an inability to pay, or a dispute as to liability or quantum, will be considered a failure to reach a repayment agreement and trigger the provision of information requirements.
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Amendment of Code 3.12 so that when providing information in accordance with that clause, an insurer must also provide information about Victorian Legal Aid and community legal centres where free legal assistance may be sought.
Scrutiny of Acts and Regulations Committee's Inquiry into the Exceptions and Exemptions in the Equal Opportunity Act
In July 2009, PILCH and the Human Rights Law Resource Centre made a joint submission to the Scrutiny of Acts and Regulations Committee’s inquiry into whether or not any amendments should be made to the exceptions and exemptions in the Equal Opportunity Act 1995 (Vic).
The submission noted how the permanent exceptions have facilitated and condoned discrimination. The submission called for the repeal of the permanent exceptions on the grounds that they:
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are extremely broad and permit discrimination that is neither fair nor reasonable;
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have institutionalised, or risk reinforcing, systemic discrimination;
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are incapable of adapting to natural shifts in community values without legislative reform; and,
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appear to be arbitrary, inflexible and unreasonable in that they do not allow for a nuanced balancing of rights in cases where particular rights conflict.
The submission recommended that section 83 of the Act be amended to require VCAT to take into account the relevant factors set out in section 7(2), when deciding whether or not to exercise its discretion to grant an individual exemption. The submission also recommended that the Act should be amended to incorporate a requirement that successful exemption applicants consider, on an ongoing basis, the need for their respective exemptions, taking into account the considerations outlined in a section 7(2)-based limitations provisions.
Whilst the submission called for the repeal of the permanent exceptions in the Act, it recognised that there may be circumstances where it is useful to have Guidelines on permissible limitations to the rights to non-discrimination and equality. The submission therefore recommended that Guidelines on permissible limitations should be developed, apart from the Act, and be subject to ongoing, regular review and judicial oversight. It submitted that only those current exceptions that pass a section 7(2) limitations analysis should be included in the Guidelines.
Last, the submission supported the recommendation of the Gardner Review that the Act be amended to reflect the legal distinction between permissible discrimination and temporary special measures, which do not constitute a form of discrimination in law. It also suggested that temporary special measures should not be included in any legislative or quasi-legislative exceptions and exemptions regime, but rather included in the core part of the Act.
Australian Health Workforce Ministerial Council on the Draft Health Practitioner Regulation National Law
In July 2009, PILCH made a submission to the Australian Health Workforce Ministerial Council on the Exposure Draft of the Health Practitioner Regulation National Law. The submission addressed those provisions of the Draft Law that require health practitioners to disclose their criminal histories to the relevant regulatory body.
In its submission, PILCH acknowledged that, in some circumstances, it will be appropriate to discriminate against a health practitioner on the basis of his or her particular criminal history, such as in cases where it is necessary to preserve community safety. However, PILCH submitted that the requirement in the Draft Law that a health practitioner should disclose all aspects of his or her criminal history, including unproven charges and spent convictions, violates international human rights law, including the right to non-discrimination. Adopting a human rights approach, PILCH recommended that:
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provision on criminal histories should be consistent with human rights law;
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only criminal histories relevant to the provision of health services should be taken into account by the relevant regulatory body;
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the Draft Law should incorporate an independent review procedure; and,
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the definition of ‘criminal history’ should be amended to refer only to recorded convictions and to exclude spent convictions.
PILCH acknowledges the substantial pro bono contribution made by Mallesons Stephen Jaques in researching and preparing this submission.
National Human Rights Submission
On 10 December 2008, the Australian Government launched a National Human Rights Consultation about the protection and promotion of human rights in Australia. The National Consultation examined 3 key questions:
- Which human rights should be protected and promoted in Australia?
- Are these human rights currently sufficiently protected and promoted?
- How could Australia better protect and promote human rights?
In June 2009, PILCH made a submission to the National Human Rights Consultation Committee, in which it addressed each of the above questions. In so doing, PILCH argued that Australia’s ad hoc system of protecting and promoting human rights is inadequate. Taking into account the failure of the current system to effectively protect and promote human rights, PILCH argued that there is a clear and pressing need to adopt measures that aim to ensure the better protection and promotion of those rights. PILCH submitted that the enactment of a national Human Rights Act is the most effective way to maximise the recognition, exercise and enjoyment of human rights in Australia.
PILCH further submitted that the enactment of a Human Rights Act is not, of itself, sufficient to improve the protection and promotion of human rights. It said that the enactment of any legislation is unlikely to ever bring about the desired changes, unless accompanied by a suite of other measures designed to promote awareness of, and ensure the effective implementation of, that instrument. For this reason, PILCH argued that it is important that a Human Rights Act is introduced together with other measures designed to: strengthen and expand human rights education; improve access to justice; expand the mandate of the Australian Human Rights Commission; and, for example, improve data collection on human rights violations. PILCH submitted that it is important that these measures are pursued in conjunction with – and not in isolation from, or instead of – a Human Rights Act.
The Consultation Committee is expected to report to the Australian Government by 31 August 2024 on the issues raised during the Consultation and the options identified for the enhanced protection and promotion of human rights.
Review of the Environmental Protection and Biodiversity Conservation Act 1999
In May 2009, PILCH made a submission to the independent review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). PILCH also met with the Consultation Panel undertaking the review to present its submission.The Act operates to protect the environment, especially where matters of national environmental significance are impacted by proposed development projects and resource use. The Act adopts a cooperative approach to the conservation of biodiversity and heritage. Further, the Act incorporates Australia’s obligations under international environmental law into domestic law. PILCH submitted that the purposes of the Act should be advanced through recognition of the human rights implications arising from environmental climate change, in accordance with international law. The human rights implications of climate change are an emerging consideration, which PILCH submitted should give rise to a new ground for environment protection.PILCH further submitted that the Act should operate in a manner that is consistent with access to justice principles and supportive of public interest litigation opportunities. PILCH’s submission addressed:
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the need for climate change to be identified as matter of national environmental significance under the Act;
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the importance of enhancing standing provisions and rights of interested parties to refer matters for review under the Act, and to introduce merits review from decisions under the Act;
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the importance of reinstating the prohibition on ordering an undertaking as to damages for an interim injunction; and,
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the need for new provisions in the Act that would allow protective cost orders to be made in public interest litigation under the Act.
Protective Costs Orders Submission
In April 2009, PILCH made a submission to the Commonwealth Attorney-General’s office proposing that the High Court, Federal Court and Federal Magistrates' Court be conferred with specific power to make protective costs orders in ‘public interest’ litigation.
The general rule in civil proceedings in common law jurisdictions is that unsuccessful applicants pay the successful party’s legal costs. As a pro bono referral service, PILCH has observed that the risk of adverse costs orders is a significant deterrent to applicants with meritorious public interest claims bringing proceedings. PILCH considers that the current costs system is an impediment to access to the courts for disadvantaged and marginalised litigants, who are often afraid of being unable to pay costs if unsuccessful in their claims. Protective cost orders have the potential to advance the rule of law, address uncertainty, and provide opportunity to public interest parties.
Unlike other jurisdictions, Australia does not have a specific public interest costs regime. Whilst courts have the discretion as to whether or not to make a costs award in favour of a successful litigant, they have been inconsistent in their application of this discretion in public interest cases.
PILCH’s submission proposes a specific legislative amendment which will allow courts to make protective cost orders in public interest cases. PILCH has also made a similar submission to the Victorian Attorney-General in respect of the Victorian courts.
A Draft Bill to Protect Public Participation
In April 2009, PILCH presented a submission to the Victorian Attorney General that proposed the introduction of legislation which safeguards public interest communications and activities by protecting against litigation which would have the effect of silencing public participation.
The submission was made in light of an emerging practice in Australia of large corporations using litigation as a strategic means of suppressing adverse public debate, commentary and protest on issues of public importance. The increasing trend toward litigation of this kind has led to the introduction of the term SLAPP ‘strategic litigation against public participation’ writs.
Included in the submission is a draft Bill for an Act to Protect and Encourage Public Participation, which was prepared by PILCH with substantial assistance from law firm Herbert Geer and Brian Walters SC.
The Senate Inquiry into Access to Justice in Australia
In March 2009 the Australian Senate Standing Committee on Legal and Constitutional Affairs invited submissions in relation to its inquiry into access to justice in Australia.
PILCH considered it important that it submit to the inquiry, having regard to its interest in improving access to justice and the legal system in Australia. In its submission PILCH emphasised the significant contribution of pro bono legal services in providing legal advice and representation for those who may not otherwise have access to a lawyer. PILCH highlighted the fact that, whilst pro bono plays an important role in providing legal assistance, they cannot be regarded as a substitute for adequate legal aid and CLC funding.PILCH’s submission addressed a number of barriers to accessing justice, including:
- funding cuts to Legal Aid;
- the effect of Commonweath restrictions on Legal Aid funding (which mandate that Commonwealth funding only be used for matters that engage Commonwealth law);
- the difficulties faced by those living in rural, regional and remote areas in accessing legal representation and the legal system;
- the difficulties faced by self represented litigants;
- the adequacy of funding and resourcing to Community Legal Centres
- the barriers to individuals and not-for-profit organisations bringing public interest litigation (such as the risk of adverse cost orders); and
- the use of SLAPP (Strategic Litigation Against Public Participation) writs to suppress adverse public debate.
The Committee intends to provide its report on the Inquiry by 17 August 2009. All submissions to the Inquiry can be viewed here.
Review of the Mental Health Act 1986
In February 2009, PILCH made a submission to the Community Consultation Panel’s review of the Mental Health Act 1986 (Vic). The review examined whether the Act provides an effective legislative framework for the treatment and care of people with a serious mental illness in Victoria. It also aimed to ensure that the Act effectively protects and promotes the human rights of people with a mental illness in accordance with the Charter of Human Rights and Responsibilities Act 2006 (Vic). In its submission, PILCH highlighted some of the weaknesses of the mental health system, including in relation to:
- external review of involuntary treatment orders and proceedings before the Mental Health Review Board; and
- monitoring of, and complaints about, consumer care and treatment.
In doing this, PILCH’s submission demonstrated how those weaknesses lead to violations of the human rights and fundamental freedoms of consumers of mental health services.
The Community Consultation Panel is due to release its report this year.