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Wednesday, 18 March 2015
Page: 2808


Mr RUDDOCK (Berowra) (16:12): Today I do have a report, and on behalf of the Parliamentary Joint Committee on Human Rights, I present the committee's 20th report to the 44th Parliament, entitled 'Human Rights Scrutiny Report', and I do ask leave of the House to make a short statement in connection with it.

Leave granted.

Mr RUDDOCK: This is the first occasion on which I have tabled, on behalf of this committee as its chair, a report. I have succeeded my colleague in the Senate, Senator Deane Smith, whom I thank for his leadership, for the work that he has done and for his assistance to me. I also thank the member for Werriwa, Mr Laurie Ferguson, as deputy chair; I know that he has tabled reports previously. I would like to spend a moment to say that the committee is served by Ivan Powell as its Acting Committee Secretary, Matthew Corrigan, Zoe Hutchinson, Anita Coles, Dr Patrick Hodder, Alice Petrie and an external legal adviser, Professor Simon Rice, OAM. I mention the staff because the committee is well served; it has a great deal of professional advice in assisting mere members in understanding the international human rights treaties, to which we are a party and their potential implications. Given that I have previously been the Attorney, that I am a lawyer and that I do have some views on this matter, it has perhaps presented them with some more challenging moments, because I have sought to have an understanding of what are competing human rights. I have mentioned some in other debates—the right to life and, in terms of proportionality, the right to privacy. Sometimes we have to look at rights and laws have to protect those rights, but sometimes ensuring that you are able to protect all of them becomes very difficult. There are competing demands and there are issues of proportionality, and some people have differences of view about what might be proportionate. That has made for some vigorous discussion before the committee in relation to some measures that might interest the minister at the table.

This report provides the committee's view on the compatibility with human rights as defined in the Human Rights (Parliamentary Scrutiny) Act 2011 of bills introduced during the period 23 February to 5 March 2015, and legislative instruments received during the period 13 to 26 February 2015. The report includes consideration of legislation previously deferred by the committee, as well as responses to issues raised by the committee in previous reports. Of the 19 bills considered in this report, 13 are assessed as not raising human rights concerns, and six raise matters requiring further correspondence with ministers. The committee has deferred its consideration of the remaining bills There are no instruments listed in this report raising any human rights concern.

This report includes the committee's consideration of the Attorney-General's response to the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014—as I said, it may interest the minister, who introduced that bill. The committee's initial analysis of the bill acknowledged the fundamental and legitimate interest of government in ensuring that there are adequate tools for law enforcement agencies to ensure public safety and the ability for victims of crime to have recourse to justice. Having accepted the important and legitimate objectives of the bill, the committee raised a number of issues going to the proportionality of the scheme in support of that objective. The Attorney-General's response provided further information in response to the committee's initial scrutiny analysis. Some members—and I might say, it was the majority of members—considered the Attorney-General's advice addressed many of their concerns, while some other members remained concerned about the proportionality of the scheme proposed. The difference of views within the committee reflects, I think, the inherent difficulty in assessing proportionality. Nevertheless, the report provides a useful assessment for members of the bill's compatibility with our international human rights obligations.

This report also includes the committee's scrutiny of the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015. This bill raises a number of questions about whether the powers in the bill, as currently drafted, are appropriately circumscribed. Reference is made in the statement of compatibility to a number of safeguards around the use of force which are to be included in policies and contracts with immigration detention service providers, but which are not included on the face of the legislation. The committee intends to write to the Minister for Immigration to ask him to provide further information as to whether the bill, as currently drafted, is compatible with a number of human rights, to help inform the committee's examination of the bill for compatibility with human rights.

I also wish to make some brief remarks about the Defence Trade Controls Amendment Bill 2015. It includes a number of statutory exceptions to offences which reverse the evidential burden of proof. In doing so, it limits the presumption of innocence, which usually requires the prosecution to prove each element of the criminal offence beyond reasonable doubt. Of course, reverse burden offences will not necessarily be inconsistent with the presumption of innocence provided they are within reasonable limits and are necessary While the committee accepts that the offences in this bill seek to achieve a legitimate objective, it is concerned that it may not be reasonable to impose an evidential burden on the defendant in relation to all of the matters set out in the proposed defences. In particular, the bill would require a defendant to raise proof that a country is one that is specified in a legislative instrument or that a country is a participant in certain groups, such as being a partner in the Missile Technology Control Regime. This does not appear to be, in the committee's view—or, I might say, in mine—a reasonable reversal of the burden of proof, as such matters would seemingly be more properly within the knowledge of the prosecution, rather than the defendant. The committee intends to write to the Minister for Defence to bring to his attention the committee's human rights concerns with this aspect of the bill, so as to help inform the committee's examination of the bill.

In conclusion, this report outlines the committee's examination of the compatibility of these bills with our human rights obligations. I encourage fellow members and others to examine the committee's report to better inform their consideration of proposed legislation. With these comments I commend the Human rights scrutiny report: Twentieth report of the 44th Parliament to the House.

Report made a parliamentary paper in accordance with standing order 39(e).