Coalition members of the parliamentary joint committee on human rights are “aiding and abetting” the government building a police and surveillance state, the Greens justice spokesman, Nick McKim, says.
The committee has split along party lines on two controversial bills, leading to accusations that Coalition members are politicising it and ignoring legal advice.
The latest report of the parliamentary joint committee on human rights, tabled and published last week, considered an amendment to Asio’s powers, which would allow it to secretly question children as young as 14, and a change to the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 that would allow the government to ban phones in immigration detention.
Coalition members largely endorsed the proposed laws despite legal advice that they raised significant human rights concerns. Labor and Greens committee members backed the legal advice and dissented.
McKim said the two bills were “draconian” and “erode[d] fundamental human rights”.
“It beggars belief that the chair has once again ignored the independent legal advice received by the committee,” he said.
The 10-member committee is advised by a secretariat and external legal adviser, the University of Sydney professor Jacqueline Mowbray. In recent years it has tended to deliver unanimous reports.
“The committee’s job is to provide a technical assessment of whether legislation complies with Australia’s international human rights obligations,” McKim said. “It should never be run for political purposes, but unfortunately the chair is doing just that.”
The Liberal senator Sarah Henderson became committee chair in October 2019.
In a statement, she rejected McKim’s criticisms, saying committee members were required to “independently consider human rights implications” of bills.
“We receive valuable legal advice but the role of committee members is not to rubber stamp that advice, as Senator McKim suggests,” she said. “Under my chairmanship, the committee now transparently reports on the legal advice it receives.”
Labor and Greens members said in the latest report that it was “regrettable” it had “again become necessary to prepare yet another dissenting report for this previously non-partisan legislative scrutiny committee”.
In the case of the Asio law, the legal advice delivered to the committee raised several concerns, including that the law would allow the attorney general to issue a warrant authorising a person to be apprehended and questioned. The legal advice suggested a current or former judge should approve the warrant.
But Coalition members said giving the attorney general warrant-issuing power was proportionate, “given the importance of Asio being able to respond quickly to time-critical threats”.
The legal advice also questioned whether it was necessary for the law to apply to children under 16, given there was scant evidence that 14- and 15-year-olds posed a serious threat, and said there did not appear to be sufficient safeguards to protect children’s rights.
Coalition members concluded there was a “proper basis” to show a “pressing and substantial concern in relation to the need to question children aged under 16”, and that the law contained sufficient protections.
They ignored most suggestions in the legal advice to bolster the protection of children’s rights.
In both cases, the dissenting report from Labor and Greens members aligned with the legal advice.
The changes to the migration act would empower the government to declare any item a “prohibited thing” and allow officers to seize it from immigration detainees.
The legislation is particularly controversial because the government could introduce a blanket ban on mobile phones in detention, which refugees and their advocates have long feared. The government insists that is not its intention.
The committee’s legal advice suggested the law threatened rights to privacy and freedom of expression, and there was nothing in the statute stopping the government from seizing mobile phones even from detainees posing a low risk.
Coalition members acknowledged the law would give the home affairs minister, Peter Dutton, and the immigration minister, Alan Tudge, a “broad discretion” to issue bans but “welcome[d]” Tudge’s assurance he did not intend to make a blanket ban.
The majority said the discretion was proportionate to the law’s objectives, “particularly in light of the changing face of the detainee population such that a much higher proportion of convicted criminals are currently in Australian detention centres awaiting deportation by reason of their convictions”.
The dissenting members disagreed, saying the broad scope of the power would lead to a “significant risk” of human rights breaches.
Labor and Greens committee members said it was “undesirable” to issue a dissenting report but it was “appropriate and necessary” if the majority report did not reflect the committee’s legal advice and there was no persuasive, evidence-based foundation for rejecting it.
In her statement, Henderson argued that the committee was not required to act in a bipartisan manner.
“In determining whether a legislative measure constitutes a permissible limitation on a specific human right, committee members are required to weigh up various considerations,” she said. “Any committee member may dissent on a report and there were a number of dissenting reports before I was appointed chair.”
McKim has previously accused Henderson of inserting “alternative reality findings” into a committee report.
In the Senate in February, he said the committee had been “politicised in an unprecedented way” under Henderson.
“We are seeing legal advice to this committee from the committee’s independent legal adviser ignored by the chair, sidelined, and alternative reality findings being inserted into this committee’s report,” he said.
He said the committee was one of the most important in the parliamentary system because Australia lacks a charter of rights.
“The only reason for the LNP members to so blatantly ignore the committee’s legal advice is that they are embarrassed that the government holds human rights in such contempt,” he said.
“Australia is becoming a police and surveillance state, and the LNP members of the [committee] are aiding and abetting the government on that dangerous journey.”