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Introduced into the House of
Representatives on 27 June 2012
Portfolio: Infrastructure and Transport
Committee view
1.2
The committee considers that this bill is compatible with human rights
as defined in the Human Rights (Parliamentary Scrutiny) Act 2011.
1.3
However, the committee notes that the statement of compatibility states
that the disclosure of restricted information and On-Board Recording (OBR)
information under the Bill may engage the right to privacy to the extent that
the disclosure involves personal information. The committee notes that this
disclosure will be the subject of prescribed regulations rather than the
subject of the Bill itself and that these regulations will be subject to the
requirement to provide a statement of compatibility with human rights.
Purpose of the bill
1.4
This bill amends the Transport Safety Investigation Act 2003 (TSI
Act) to:
-
provide state and territory government Ministers with a
responsibility for rail a right to request the Australian Transport Safety
Bureau (ATSB) to conduct an investigation in their jurisdiction;
-
clarify the ATSB’s capacity to conduct investigations within, or
to or from, a Commonwealth Territory; and
-
provide that OBR and restricted information may be disclosed in
accordance with the regulations.
Compatibility with human rights
Right to privacy (Article 17 of
ICCPR)
1.5
The proposed amendments to Part 6 of the TSI Act, contained within Items
4 and 5 of Schedule 1 to the Bill, provide a defence to any prohibition on
copying or disclosing restricted information and OBR information if the copying
or disclosing was done by a person performing functions or exercising powers
under, or in connection with, the TSI Act or Regulations.
1.6
The explanatory memorandum states that the prohibitions on copying and
disclosing OBR and restricted information exist in the TSI Act to encourage
persons to cooperate with the ATSB in safety investigation knowing that the
information they provide will not be used against them. Similarly, in
confidential reporting, the prohibitions on disclosure are to encourage persons
who fear reprisal to make a report. However, the explanatory memorandum goes on
to state that there also needs to be some exceptions in order for
investigations and confidential reporting to be effectively able to communicate
safety issues to the industry.
1.7
The statement of compatibility states that to the extent that the
disclosure involves personal information, the right to privacy may be engaged.
However, the statement of compatibility states that this disclosure will be the
subject of any prescribed regulation rather than the subject of the Bill itself
and that these regulations will be subject to the requirement to provide a statement
of compatibility with human rights.
1.8
The statement of compatibility also states that to the extent that any
regulations do engage the right to privacy they are expected to advance the
right. It is however not clear how the right to privacy would be advanced by
regulations that permit the disclosure of personal information.
1.9
The right to privacy contained in Article 17 of the ICCPR provides:
'1. No
one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
2. Everyone
has the right to the protection of the law against such interference or
attacks.'
1.10
The UN Human Rights Committee notes that paragraph 4 of General Comment
16 states that:
'The introduction of the concept of arbitrariness is intended
to guarantee that even interference provided for by law should be in accordance
with the provisions, aims and objectives of the Covenant and should be, in any
event, reasonable in the particular circumstances.'
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