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Bills unlikely to raise human rights concerns
Amending Acts 1901 to 1969 Repeal Bill
2014
Portfolio: Attorney-General
Introduced: House of
Representatives, 19 March 2014
1.1
The bill is intended to repeal a number of amending and repeal Acts. The
explanatory memorandum for the bill states that it will amend 'over 1000' Acts,[1]
and that the repeal of the Acts will not substantially alter existing
arrangements or make any change to the substance of the law.
1.2
The bill is accompanied by a statement of compatibility which states
that it does not engage any human rights.[2]
1.3
The committee considers that the bill does not appear to give rise
to human rights concerns.
Classification (Publications, Films and Computer Games) Amendment
(Classification Tools and Other Measures) Bill 2014
Portfolio: Attorney-General
Introduced: House of
Representatives, 19 March 2014
1.4
This bill seeks to amend the Classification (Publication, Films and
Computer Games) Act 1995 (the Classification Act). It also seeks to make
consequential amendments to the Broadcasting Services Act 1992.
1.5
The bill proposes a range of amendments to implement a number of reforms
based on recommendations of the Australian Law Reform Commission's review of
the National Classification Scheme.[3]
These include amendments to:
-
broaden the scope of existing exempt film categories and provide
greater flexibility for certain films to be exempt from classification
requirements;
-
simplify the regulatory requirements for festivals and cultural
institutions by removing the need to apply to the Director for a formal
exemption from classification requirements;
-
enable certain content to be classified using classification
tools (such as online questionnaires that deliver automated decisions);
-
create an explicit requirement in the Classification Act to
display classification markings on all classified content;
-
expand the exceptions to the modifications rule so that films and
computer games which are subject to certain types of modifications do not
require classification again;
-
enable the Attorney-General's Department to notify law
enforcement authorities of potential Refused Classification content without
having the content classified first, to help expedite the removal of extremely
offensive or illegal content from distribution; and
-
make minor amendments to the Classification Act to improve
clarity, address anomalies and enhance administrative efficiency.
1.6
The bill is accompanied by a statement of compatibility which states
that the bill engages: the right to freedom of expression;[4]
the promotion of the best interests of the child;[5]
the right of the child to access information and material from a diversity of
national and international sources;[6]
the obligation to render appropriate assistance to parents or legal guardians
in the performance of their child rearing responsibilities;[7]
the obligation to protect children from all forms of sexual exploitation and
sexual abuse, including pornographic performances and materials;[8]
the right to education;[9]
and the right to culture.[10]
1.7
The committee considers that the bill does not appear to give
rise to human rights concerns.
Clean Energy Finance Corporation
(Abolition) Bill 2013
[No. 2]
Portfolio: Treasury
Introduced: House of
Representatives, 20 March 2014
1.8
This bill proposes to repeal the Clean Energy Finance Corporation Act
2012 (CEFC Act). The bill seeks to give effect to the government’s
commitment to abolish the Clean Energy Finance Corporation (CEFC) and will
transfer the existing contractual assets and liabilities of the CEFC to the
Commonwealth to hold and manage.
1.9
The bill is accompanied by a statement of compatibility which states
that it does not engage any human rights.[11]
1.10
The committee considered an identical bill in its First Report of the 44th
Parliament.[12]
1.11
The committee considers that this bill does not appear to give
rise to human rights concerns.
Defence Force Retirement Benefits
Legislation Amendment (Fair Indexation) Bill 2014
Portfolio: Veteran's Affairs
Introduced: House of
Representatives, 20 March 2014
1.12
This bill proposes to amends the Defence Forces Retirement Benefits
Act 1948 and the Defence Force Retirement and Death Benefits Act 1973
to provide a different pension indexation regime to apply from 1 July 2014 for
those Defence Forces Retirement Benefits (DFRB) and Defence Force Retirement
and Death Benefits (DFRDB) pensioners who are age 55 or older on either 1
January or 1 July when pensions are indexed.
1.13
The bill is accompanied by a statement of compatibility which states
that bill engages a range of human rights, including the right to equality and
non-discrimination;[13]
the right to social security;[14]
the right to an adequate standard of living;[15]
and rights in work.[16]
The statement of compatibility notes that:
Pensions paid to pensioners under age 55 will continue to be
indexed in line with positive movements in the consumer price index. There will
be no reduction in the benefits paid to pensioners aged under 55. They will get
the benefit of the new indexation arrangements when they reach age 55.[17]
1.14
The committee considers that the bill does not appear to give
rise to human rights concerns.
End Cruel Cosmetics Bill 2014
Sponsor: Senator Rhiannon
Introduced: Senate, 18 March 2014
1.15
This bill amends Part 3B of the Industrial Chemicals (Notification
and Assessment) Act 1989 to prohibit developing, manufacturing, selling,
advertising or importing into Australia cosmetics, or ingredients for
cosmetics, which have been tested on live animals.[18]
The bill does not extend to substances that are animal-tested for use in
medicines or other non-cosmetic uses, to therapeutic goods or to prescribed
substances.[19]
1.16
The bill is accompanied by a statement of compatibility which states
that it does not engage any human rights.[20]
The statement of compatibility adds that the bill does not limit the right to
health as it does not impact on medical research and 'only applies to
substances that are cosmetics or are developed, manufactured, sold or imported
for use as ingredients or components in cosmetics.'[21]
1.17
The committee considers that the bill does not appear to give
rise to human rights concerns.
Environment Protection and Biodiversity
Conservation Amendment Bill 2014
Sponsor: Senator Ludwig
Introduced: Senate, 18 March 2014
1.18
This bill proposes to amend the Environment Protection and
Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to repeal the sunset
provision in section 390SM of that Act. This will enable the Minister to
establish an independent expert panel to conduct an assessment of the potential
environmental impacts of a declared commercial fishing activity and to prohibit
the declared commercial fishing activity while the assessment is undertaken.
The amendments restore to the Minister the powers contained within Chapter 5B
of the EPBC Act.
1.19
The powers contained within Chapter 5B of the EPBC Act enable the
Minister, with the agreement of the Minister administering the Fisheries
Management Act 1991, to declare a commercial fishing activity to be a
'declared commercial fishing activity' on an interim basis or for a period of
up to 24 months where satisfied of certain criteria. The provisions also create
civil penalty and offence provisions for engaging in a declared commercial
fishing activity.
Previous
consideration by the committee
1.20
The relevant provisions of Part 15B of Chapter 5B of the EPBC Act were
included in the EPBC Act by the Environment Protection and Biodiversity
Conservation Amendment (Declared Commercial Fishing Activities) Act 2012.
The bill for that Act (the 2012 bill)[22]
was passed with amendments by the Parliament and received Royal Assent on
19 September 2012.
1.21
The committee considered the 2012 bill in its Third Report of 2012,[23]
taking into account the amendments that were made. The committee noted that the
amendments to the bill did not appear to give rise to any human rights
concerns, but noted that it would ‘generally be good practice to provide a
compatibility assessment for amendments where practicable and particularly
where the amendments could give rise to human rights concerns.’[24]
1.22
The committee wrote to the then Minister for Sustainability, Water,
Population and Communities in relation to the strict liability offence created
by new section 390SB and the possible penalty of up to 7 years’ imprisonment
for this offence. The committee asked whether it would be appropriate, given
the severity of the penalty, for a defence other than the defence of mistake of
fact to be available in relation to this offence.[25]
The committee also sought clarification as to whether the matters covered by
the bill may be considered to fall within the right to a fair hearing under
article 14(1) of the ICCPR and, if so, what review rights were available to
affected individuals seeking to challenge a declaration or any decisions
following from a declaration.[26]
1.23
The then Minister for Sustainability, Water, Population and Communities
responded to the committee in a letter of 17 December 2012,[27]
providing information in response to the committee’s inquiries. The committee
thanked the then Minister for his response and made no further comment on the
bill.[28]
Statement
of compatibility
1.24
This bill is accompanied by a self-contained statement of compatibility.
The statement of compatibility reflects the contents of a revised explanatory
memorandum prepared in relation to the 2012 bill. While the statement of
compatibility does not include the additional explanation contained in the
former Minister’s letter to the committee clarifying why only the defence of
mistake of fact should be available under section 390SB, it does contain an
explanation of the review rights that may be available to a person affected by
a declaration under the legislation which reflects the former Minister’s
response to the committee on that issue.
1.25
The restoration of the powers of the Minister under Chapter 5B of the
EPBC Act and the operation of the associated provisions does not appear to
raise any additional human rights issues to those already considered by the committee
in its examination of the 2012 bill.
1.26
The committee expresses its appreciation to Senator Ludwig for
ensuring that the statement of compatibility complies with the committee’s
expectation that, where the committee has raised concerns in relation to particular
measures in a bill, any subsequent reintroduction of the same or substantially
the same measure is accompanied by a statement of compatibility addressing the
committee’s previously identified concerns.[29]
The committee notes it would have been helpful if the statement of
compatibility had also addressed the issue of defences available under section
390SB as previously raised by the committee.
1.27
The committee considers that the bill does not appear to give
rise to human rights concerns.
Intellectual Property Laws Amendment
Bill 2014
Portfolio: Industry
Introduced: House of Representatives, 19 March
2014
1.28
This bill proposes to amend various intellectual property laws. A
similar bill was introduced into the Parliament in May 2013, but the
legislation was not passed prior to the Parliament being prorogued.
1.29
Schedules 1 and 2 amends Patents Act 1990 to implement the Protocol
amending the World Trade Organization Agreement on Trade-Related Aspects of
Intellectual Property to enable Australian pharmaceutical manufacturers to
obtain a licence from the Federal Court to make generic versions of patented
medicines and to export these medicines to countries with a demonstrated need.
1.30
Schedule 3 amends the Plant Breeder's Rights Act 1994 to enable
the owners of plant breeder’s rights in a plant variety with the option to take
action in the Federal Circuit Court against alleged infringers.
1.31
Schedule 4 provides for single application and examination processes for
trans-Tasman patents. It also provides for a single trans-Tasman patent
attorney regime which will include common qualifications for registration as a
patent attorney, a single trans-Tasman IP Attorneys Board and a single
trans-Tasman IP Attorneys Disciplinary Tribunal.
1.32
Schedule 5 makes a number of minor administrative amendments to the Patents
Act 1990, Trade Marks Act 1995 and the Designs Act 2003,
including repealing document retention provisions which are already governed by
the Archives Act 1983.
1.33
The bill is accompanied by a statement of compatibility that discusses
the bill’s engagement with the right to health[30]
and the right to privacy,[31]
and concludes that the bill is compatible with human rights.
1.34
The committee agrees that the proposed measures to enable the export of
generic versions of patented medicines to developing countries that are
experiencing serious public health issues and that have no capacity to
manufacture the medicines or purchase them in the normal manner is likely to
promote the right to health.
1.35
The committee considers that the information sharing provisions in
Schedule 4 appear to be suitably circumscribed and do not appear to give
rise to issues of inconsistency with the right to privacy. The committee notes
that it had commented on these provisions in its report on the original bill
and requested clarification about available safeguards for protecting personal
information that is disclosed to officials in New Zealand.[32]
1.36
The committee expresses its appreciation to the Minister for
Industry for ensuring that the statement of compatibility for this bill
complies with the committee’s expectation that, where the committee has raised
concerns in relation to particular measures in a bill, any subsequent
reintroduction of the same or substantially the same measure is accompanied by
a statement of compatibility addressing the committee’s previously identified
concerns.[33]
1.37
The committee notes that the proposed single Trans-Tasman patent
attorney regime which will provide for a single set of standards for the
accreditation, registration and discipline of patent attorneys in both
Australia and New Zealand appear to be consistent with the right to work,[34] the right to
non-discrimination,[35]
and the right to a fair hearing.[36]
1.38
The committee considers that the bill does not appear to give
rise to human rights concerns.
Marriage (Celebrant Registration Charge)
Bill 2014
Marriage Amendment (Celebrant
Administration and Fees) Bill 2014
Portfolio: Attorney-General
Introduced: House of
Representatives, 20 March 2014
1.39
The Marriage Act 1961 establishes three categories of celebrants
who are authorised to solemnise marriages under Australian law:
-
Ministers of religion of a recognised denomination, proclaimed
under section 26 of the Act, who are nominated by their denomination and
registered and regulated by state and territory registries of births, deaths
and marriages.
-
State and territory officers who are authorised to perform
marriages as part of their duties and are registered and regulated by state and
territory registries of births, deaths and marriages, and
-
Commonwealth-registered marriage celebrants who are authorised
under the Marriage Celebrants Program to perform marriages. This group includes
civil celebrants and celebrants who are ministers of religion whose
denomination is not proclaimed under section 26 of the Act.
1.40
These two bills propose to implement a 2011-12 Budget measure to
introduce cost recovery for the regulation of the third category of authorised
celebrants, that is, Commonwealth-registered marriage celebrants. Similar
legislation to implement these reforms was introduced into the Parliament in
March 2013. However, that legislation was not passed prior to the Parliament
being prorogued. These two bills essentially reintroduce the legislative
authority for the government to charge Commonwealth-registered marriage
celebrants an annual cost recovery levy, the celebrant registration charge.
1.41
The Marriage (Celebrant Registration Charge) Bill 2014 will impose an
annual celebrant registration charge with a statutory limit of $600 for the
2014-15 financial year, and provides for indexation of the statutory limit in
later financial years. The Marriage Amendment (Celebrant Administration And
Fees) Bill 2014 will provide for, among other things:
-
a celebrant registration charge to be imposed from 1 July 2014 on
Commonwealth-registered marriage celebrants who are authorised under the
Marriage Celebrants Program to perform marriages;
-
the deregistration of celebrants who do not pay the celebrant
registration charge or obtain an exemption; and
-
the imposition of a registration application fee for prospective
celebrants seeking registration.
1.42
Each bill is accompanied by a statement of compatibility which states
that it engages several human rights, including the right to freedom of
religion,[37]
the right to equality and non-discrimination;[38]
and the right to work.[39]
1.43
The committee commented on the original bills in its Sixth Report of
2013.[40]
The committee considered that:
-
to the extent that the measures involve a limitation on the
exercise of the freedom of religion, they are a permissible limitation of that
right, noting in particular the possibility for a religious marriage to follow
a civil ceremony;
-
to the extent that the differential treatment of ministers of
religion engages the right to equality and non-discrimination, the fact that
ministers of proclaimed religions are regulated by state and territory
authorities is an objective and reasonable basis on which to treat the two
categories of minister differently; and
-
any limitation on the right to work is a reasonable and
proportionate measure provided by law in pursuit of a legitimate objective and
is permissible.
1.44
The committee considers that these bills do not appear to give
rise to human rights concerns.
Parliamentary Joint Committee on the
Australia Fund Bill 2014
Sponsor: Mr Palmer
Introduced: House of
Representatives, 17 March 2014
1.45
This bill proposes to establish a Parliamentary Joint Committee to
investigate establishing an Australia Fund. The Australia Fund would be
designed to assist in the support and reconstruction of Australian rural and
manufacturing industries in times of crisis, including natural disasters, or in
cases of a world financial crisis or unfair market intervention/manipulation.[41]
1.46
The bill is accompanied by a statement of compatibility which states
that it does not engage any human rights.[42]
1.47
The committee considers that the bill does not appear to give
rise to human rights concerns.
Personal Property Securities Amendment
(Deregulatory Measures) Bill 2014
Portfolio:
Attorney-General
Introduced: House of
Representatives, 19 March 2014
1.48
The bill proposes to amend the Personal Property Securities Act 2009
(the PPS Act) so that leases of serial numbered goods of 90 days or more will
no longer be deemed to be PPS leases for the purposes of the PPS Act. This is
intended to simplify the deeming provisions in the PPS Act and minimise the
need for small and medium hire businesses to make registrations in respect of
leases of a term of less than 12 months.
1.49
The bill is accompanied by a statement of compatibility which states
that it does not engage any human rights.[43]
1.50
The committee considers that the bill does not appear to give
rise to human rights concerns.
Privacy Amendment (Privacy Alerts) Bill
2014
Sponsor:
Senator Singh
Introduced: Senate, 20 March 2014
1.51
This bill proposes to amend the Privacy Act 1988 to introduce a
framework for the mandatory notification by regulated entities of serious data
breaches to the Australian Information Commissioner and to affected
individuals. The explanatory memorandum explains that:
Mandatory data breach notification commonly refers to a legal
requirement to provide notice to affected persons and the relevant regulator
when certain types of personal information are accessed, obtained, used,
disclosed, copied, or modified by unauthorised persons. Such unauthorised access
may occur following a malicious breach of the secure storage and handling of
that information (e.g. a hacker attack), an accidental loss (most commonly of
IT equipment or hard copy documents), a negligent or improper disclosure of
information, or otherwise.[44]
1.52
The bill seeks to give effect to a recommendation made by the Australian
Law Reform Commission in 2008 for the Privacy Act to be amended to require that
such notification be given.[45]
This is because:
... with advances in technology, entities were increasingly
holding larger amounts of personal information in electronic form, raising the
risk that a security breach around this information could result in others
using the information for identity theft and identity fraud. A notification
requirement on entities that suffer data breaches will allow individuals whose
personal information has been compromised by a breach to take remedial steps to
lessen the adverse impact that might arise from the breach. For example, the
individual may wish to change passwords or take other steps to protect his or
her personal information.[46]
1.53
The bill provides that, where a regulated entity has suffered a serious
data breach, it must notify the individual(s) whose personal information is the
subject of the breach as well as the Australian Information Commissioner. The
Commissioner may also direct an entity to notify affected individuals of a
serious data breach. An entity which fails to notify affected individuals
engages in an interference with the privacy of an individual and the
Commissioner may pursue a civil penalty against such an entity.
1.54
The bill is accompanied by a statement of compatibility that states that
the bill engages the right to privacy,[47]
and the right to a fair trial.[48]
The statement provides a helpful discussion of the relevant human rights issues
and concludes that the bill promotes the right to privacy and that the
imposition of civil penalties for breaching the notification requirements is
consistent with the right to a fair trial.
Right to privacy
1.55
The committee agrees that the measures proposed by the bill will promote
the right to privacy. The committee notes that law enforcement bodies are
provided with a narrow exemption from the mandatory notification requirements
where compliance would prejudice an enforcement related activity. The committee
considers that any limitation of the right to privacy in these circumstances is
likely to be reasonable, necessary and proportionate to a legitimate objective.
Civil penalties
1.56
The bill provides that an entity which fails to notify affected
individuals of a serious data breach engages in an interference with the
privacy of an individual.[49]
Under the Privacy Act, interferences with the privacy of an individual may
attract a civil penalty where there has been a serious or repeated interference
with the privacy of an individual, with a maximum penalty of 2,000 penalty
units for individuals and 10,000 penalty units for bodies corporate.
1.57
The committee has previously noted even where a penalty is described as
‘civil’ under national or domestic law it may nonetheless be classified as
‘criminal’ for the purposes of human rights law. Given that the operation of
the civil penalty provisions in this instance appears in a regulatory and
protective context, it is arguable that the penalties are not ‘criminal’ in
nature. Although the penalties are large, it may be argued that they are not
excessive in that they apply to regulated entities and in view of the privacy
interests that are being protected. The committee considers that the civil
penalties that may be imposed in the context of the proposed measures do not
appear to give rise to issues of incompatibility with human rights.
1.58
The committee considers that the bill does not appear to give
rise to human rights concerns.
Statute Law Revisions Bill (No. 1) 2014
Portfolio: Attorney-General
Introduced: House of
Representatives, 19 March 2014
1.59
This bill proposes to correct technical errors that have occurred in
Acts as a result of drafting and clerical mistakes and to repeal spent and
obsolete provisions and Acts.[50]
1.60
The bill is accompanied by a statement of compatibility which states
that it does not engage any human rights.[51]
1.61
The committee considers that the bill does not appear to give
rise to human rights concerns.
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