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report provides the Parliamentary Joint Committee on Human Rights' view on the
compatibility with human rights as defined in the Human Rights
(Parliamentary Scrutiny) Act 2011 of bills introduced into the Parliament
during the period 27 May to 6 June 2013. The report also sets out the
committee's comments on four responses to the committee's comments on civil
penalty provisions made in previous reports.
27 May to 6 June 2013
committee considered 37 bills, 35 of which were introduced with a statement of
compatibility. The committee has identified seven bills that it considers
require further examination and for which it will seek further information. The
committee's comments on these bills are set out in this report.
of the bills considered do not require further scrutiny as they do not appear
to give rise to human rights concerns. Some of these bills do not engage human
rights, some engage and promote rights and a number engage and limit rights,
but are accompanied by statements of compatibility that set out an adequate
justification for each of these limitations. A further two private Members'
bills may engage rights and the committee leaves open the option of examining
these bills further in the event that these bills proceed to further stages of
introduced without statements of compatibility
Broadcasting Services Amendment (Advertising for Sports Betting Bill 2013 [No. 2]
and the Constitution Alteration (Local Government) 2013 were not accompanied by
a statement of compatibility. The committee considers that neither bill gives
rise to human rights concerns, but will write to the proponent of each bill
regarding the decision not to provide a statement of compatibility.
Constitution Alteration (Local Government) 2013 seeks to establish the process
for a referendum to amend section 96 of the Australian Constitution to make
specific provision for the Commonwealth to grant financial assistance to local
government bodies. The Explanatory Memorandum that accompanied the bill states
that the proposed legislation is not within the scope of the Human Rights
(Parliamentary Scrutiny) Act 2011 and therefore does not require a statement
of compatibility under that Act. The committee appreciates that a bill to alter
the Constitution has some important differences from other bills considered by
the Parliament, particularly with regard to the procedure for its approval and
commencement. However, the committee notes that amendments to the Constitution
resulting from the procedure set out in section 128 of the Constitution are
described as Acts in their long titles,
as is this bill, even though they may be cited without including the word 'Act'
in the citation.
As no further explanation has been provided in the explanatory memorandum, the
committee will write to the Attorney-General seeking clarification as to why a
statement of compatibility was not provided with this bill.
of clearly expressed statements of compatibility
committee notes that a number of the bills considered have been introduced with
well-reasoned statements of compatibility which have greatly assisted the
committee. The statement provided with the Crimes Legislation Amendment (Law
Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Bill
2013 is exemplary. While the committee has raised some questions in relation to
certain aspects of the bill, for the most part any limitations in the bill have
been adequately explained in the statement of compatibility which has enabled
the committee to conclude that these particular provisions do not raise human
Charities Bill 2013 and consequential bill introduces a statutory definition of
a 'charity' that does not extend to organisations engaged in or promoting
activities that are unlawful, contrary to public policy or is for the purpose
of promoting or opposing a political party or candidate. The bill is
accompanied by a statement of compatibility that provides a clear explanation
of why the measures are a necessary, reasonable and proportionate limitation on
the rights to freedom of speech and political participation. The Migration
Amendment (Offshore Resources Activity) Bill 2013 is another example of a
statement of compatibility that provides a clearly expressed justification for
the limitations on rights implemented through that bill.
number of the bills considered in this report promote rights.
The committee wishes to make specific comment on the Privacy Amendment (Privacy
Alerts) Bill 2013 and the Homelessness Bill 2013, and the related consequential
Privacy Amendment (Privacy Alerts) Bill 2013 requires entities regulated by the
Privacy Act to notify affected individuals and the Australian Information
Commissioner where there has been unauthorised access to, or disclosure of,
personal information, or where personal information is lost in circumstances
that could give rise to unauthorised loss or disclosure. The committee welcomes
this response to concerns regarding the risks associated with the storage of
large amounts of personal information in electronic form raised by the
Australian Law Reform Commission in its 2008 report
which advances the right to privacy.
committee notes that the Homelessness Bill 2013 is aspirational in nature as no
rights are created. The committee endorses the commitment to increase
recognition and awareness of people experiencing or at risk of homelessness, as
housing is an important right under the International Covenant on Economic,
Social and Cultural Rights. The committee notes, however, that the bill does
not create a legislative right to housing as recommended by the United Nations
Committee on Economic, Social and Cultural Rights.
rights compatibility and civil penalty provisions
commencing its work in August 2012, the committee has noted a number of bills
containing civil penalty provisions and has sought clarification regarding the
consistency of these provisions with the guarantees relating to criminal
proceedings contained in articles 14 and 15 of the International Covenant on
Civil and Political Rights (ICCPR).
this report, the committee has set out its comments on the civil penalty
provisions in four such bills, indicating the type of analysis that it
considers may be appropriate to include in statements of compatibility
accompanying bills that introduce or incorporate civil penalty regimes. The
committee thanks the Ministers concerned for their detailed responses to the
committee's comments and for their forbearance while the committee gave
detailed consideration to this issue. The committee has concluded that the
civil penalty provisions in two of the bills are unlikely to be considered
The remaining two bills contain civil penalty provisions that the committee
considers may properly be characterised as 'criminal' in nature.
As such the committee has expressed concerns that where a person may be subject
to a pecuniary penalty for a civil penalty contravention in addition to
punishment under a criminal offence for the same or substantially the same
conduct, this may be inconsistent with the right not to be tried twice for the
same offence (article 14(7) of the ICCPR).
assist those involved in policy development, drafting and human rights scrutiny
of these types of provisions, the committee has developed an interim practice
note setting out its understanding of the human rights law position. Practice
Note 2 forms Appendix 2 to this report.
Mr Harry Jenkins MP
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