Explanatory Memorandum
(Circulated by the authority of the Treasurer, the Hon J. B. Hockey MP)Chapter 15 - Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
PRIVATE HEALTH INSURANCE (PRUDENTIAL SUPERVISION) BILL 2015, PRIVATE HEALTH INSURANCE (PRUDENTIAL SUPERVISION) (CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS) BILL 2015, PRIVATE HEALTH INSURANCE SUPERVISORY LEVY IMPOSITION BILL 2015, PRIVATE HEALTH INSURANCE (RISK EQUALISATION LEVY) AMENDMENT BILL 2015 AND PRIVATE HEALTH INSURANCE (COLLAPSED INSURER LEVY) AMENDMENT BILL 2015
15.1 The package of Bills 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
15.2 As part of the 2014-15 Budget: Smaller Government - additional reductions in the number of Australian Government bodies it was announced that the Council would cease to function as a separate body and the Council's prudential and regulatory functions would transfer to the APRA from 1 July 2015. The Prudential Supervision Bill implements this measure by creating a regime for the prudential regulation of private health insurers by APRA.
15.3 The Consequential Amendments and Transitional Provisions Bill makes consequential amendments to relevant legislation including the repeal of the provisions relating to the in the PHI Act. It also provides for necessary transitional arrangements to facilitate the transfer. The Supervisory Levy Imposition Bill, the Risk Equalisation Levy Amendment Bill and the Collapsed Insurer Levy Amendment Bill provide for the continued imposition of levies upon the private health insurance industry to fund regulatory activities.
15.4 Given the Bills are interdependent this is single statement of capability with human rights for the package of Bills.
Human rights implications
The Right to Health
15.5 The right to health - the right to the enjoyment of the highest attainable standard of physical and mental health - is contained in article 12(1) of the International Covenant on Economic, Social and Cultural Rights. The United Nations Committee on Economic, Social and Cultural Rights (the Committee) has stated that health is a 'fundamental human right indispensable for the exercise of other human rights', and that the right to health is not to be understood as a right to be healthy, but rather entails a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.
15.6 The right may be understood as a right of access to a variety of public health and health care facilities, goods, services, programmes and conditions necessary for the realisation of the highest attainable standard of health.
15.7 The package of Bills promotes the right to health and continues a regulatory regime which operates to protect the interests of individuals who take out private health insurance in order to manage their health care costs.
Fair trial and fair hearing rights
15.8 Fair trial and fair hearing rights are contained in article 14 of the International Covenant on Civil and Political Rights (ICCPR) to which Australia is a signatory. Article 40 of the Convention on the Rights of the Child (CRC) and article 13 of the Convention on the Rights of Persons with Disabilities (CRPD) also apply.
15.9 The right to a fair and public criminal trial or a fair and public hearing in civil proceedings is one of the guarantees in relation to legal proceedings. Fair trial and fair hearing rights include:
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- that all persons are equal before courts and tribunals, and
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- the right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.
15.10 The other guarantees are the presumption of innocence, and minimum guarantees in criminal proceedings, such as the right to counsel and not to be compelled to self-incriminate.
15.11 The Prudential Supervision Bill engages the right to not to be compelled to self-incriminate, by providing that in certain circumstances a person cannot refuse to answer a question or comply with a request where the answer or information may incriminate them. However, the Prudential Supervision Bill ensures that individuals' rights are protected by preventing this information being used to prosecute an individual (this is known as 'use immunity').
15.12 Whilst the civil penalty orders in Part 8 of the Prudential Supervision Bill may appear large, civil penalties must be sufficiently large to act as a deterrent as they do not carry the stigma attached to a criminal offence.
15.13 The Prudential Supervision Bill protects the rights of individuals from arbitrariness or abuses of power by providing that only a court can make a declaration of contravention leading to a civil penalty order.
Right against arbitrary interference
15.14 Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence, and protects a person's honour and reputation from unlawful attacks. This right may be subject to permissible limitations where those limitations are provided by law and non-arbitrary. In order for limitations not to be arbitrary, they must be aimed at a legitimate objective and are reasonable, necessary and proportionate to that objective.
15.15 The Prudential Supervision Bill protects against arbitrary abuses of power as the entry, monitoring, search, seizure and information gathering powers provided in it are conditional upon consent being given by the occupier of the premises or prior judicial authorisation. Where entry is based on the consent of the occupier, consent must be informed and voluntary and the occupier of premises can restrict entry by authorised persons to a particular period. Additional safeguards are provided through provisions requiring authorised persons and any persons assisting them to leave the premises if the occupier withdraws their consent.
15.16 The Prudential Supervision Bill specifies that an issuing officer of a warrant to enter premises for the purpose of monitoring or investigation must be a judicial officer. The Prudential Supervision Bill also provides limits on the issuing of a monitoring or investigation warrant. In the case of an investigation warrant, for example, an issuing officer may issue an investigation warrant only when satisfied, by oath or affirmation, that there are reasonable grounds for suspecting that there is, or may be within the 72 hours, evidential material on the premises. An issuing officer must not issue a warrant unless the issuing officer has been provided, either orally or by affidavit, with such further information as they require concerning the grounds on which the issue of the warrant is being sought. Such constraints on this power ensure adequate safeguards against arbitrary limitations on the right to privacy in the issuing of warrants.
15.17 An authorised person cannot enter premises unless their identity card or a copy of the warrant under which they are entering is shown to the occupier of the premises. This provides for the transparent utilisation of the Prudential Supervision Bill's powers and mitigates arbitrariness and risk of abuse.
15.18 The Prudential Supervision Bill also engages the right to reputation by allowing a court to disqualify certain persons from being actuaries and officers of private health insurers and then requiring APRA to publish the disqualification. However, it protects from arbitrary attacks on reputation by only allowing a court to disqualify someone, and only if certain conditions are met.
15.19 These powers are reasonable, necessary and proportionate to achieve a legitimate objective. Adequate safeguards and limitations on the use of regulatory powers in the package of Bills ensures that such lawful interferences are not arbitrary or at risk of abuse.
Conclusion
15.20 The package of Bills is compatible with human rights. To the extent that they may limit human rights, those limitations are reasonable, necessary and proportionate.