New and continuing matters
1.1
This chapter provides assessments of the human rights compatibility of:
-
bills introduced into the Parliament between 4 and 7 December (consideration of 3 bills from this period has been deferred);[1]
- legislative instruments received between 3 November and 14
December (consideration of 14 legislative instruments from this period has been
deferred);[2] and
- bills and legislative instruments previously deferred.
1.2
The chapter also includes reports on matters previously raised, in
relation to which the committee seeks further information following
consideration of a response from the legislation proponent.
Instruments not raising human rights concerns
1.3
The committee has examined the legislative instruments received in the relevant
period, as listed in the Journals of the Senate.[3] Instruments raising human rights concerns are identified in this chapter.
1.4
The committee has concluded that the remaining instruments do not raise
human rights concerns, either because they do not engage human rights, they
contain only justifiable (or marginal) limitations on human rights or because
they promote human rights and do not require additional comment.
Response required
1.5
The committee seeks a response or further information from the relevant minister
or legislation proponent with respect to the following bills and instruments.
Broadcasting Legislation Amendment (Foreign Media Ownership and Community
Radio) Bill 2017
Purpose |
Amends the Broadcasting
Services Act 1992 to: establish a Register of Foreign Ownership of Media
Assets to be administered by the Australian Communications and Media Authority
(ACMA); provide for new assessment criteria for the applications for, and
renewals of, community radio broadcasting licences relating to material of
local significance; amends the Australian Communications and Media
Authority Act 2005 to enable the ACMA to delegate certain powers |
Portfolio |
Communications and the Arts |
Introduced |
Senate, 6 December 2017 |
Right |
Privacy, criminal process
rights (see Appendix 2) |
Status |
Seeking additional
information |
Establishment of the Register of Foreign Owned Media Assets
1.6
The Broadcasting Legislation Amendment (Foreign Media Ownership and
Community Radio) Bill 2017 (the bill) would establish a Register of Foreign
Ownership of Media Assets (the register). The register will be overseen and
maintained by the Australian Communications and Media Authority (ACMA), will be
available publicly on the ACMA's website, and would provide information about
each 'foreign stakeholder'[4] in an Australian media company, including the name of the foreign stakeholder,
the foreign stakeholder's company interests[5] in the Australian media company and the country in which the foreign
stakeholder is ordinarily resident.[6]
1.7
Where a person is a foreign stakeholder in an Australian media company
at the end of a financial year, or becomes a foreign stakeholder, the person
must within 30 days notify the ACMA in writing of certain information,
including the person's name, the circumstances that resulted in the person
being or becoming a foreign stakeholder in the company, the person's company
interests in the company, 'designated information' relating to the person,[7] and 'such other information (if any) relating to the person as is specified' by
legislative instrument.[8] The ACMA may also, by written notice to a foreign stakeholder, require the
foreign stakeholder to notify the ACMA of the foreign stakeholder's company
interest's in the company, the method used to determine such interests and
'such other information' relating to the foreign stakeholder as specified by
legislative instrument.[9]
Compatibility of the measure with
the right to privacy
1.8
The right to privacy encompasses respect for informational privacy,
including the right to respect private information and private life,
particularly the storing, use and sharing of personal information.
1.9
As noted in the statement of compatibility, the bill engages the right
to privacy because it requires the provision of information by, and authorises
the use and disclosure of certain information about, individuals (including
personal information) for inclusion on the register.[10] However, the statement of compatibility further states that to the extent that
the right to privacy is limited by the bill, the limitations are reasonable,
necessary and proportionate.
1.10
The objective of the bill is described in the statement of compatibility
as 'to promote increased scrutiny of foreign investment in Australian media
companies, and increase transparency of the levels and sources of foreign
ownership in these companies'.[11] This is likely to be a legitimate objective for the purpose of international
human rights law. Similarly, requiring certain information about foreign
stakeholders to be available on a publicly-accessible register appears to be
rationally connected to this objective.
1.11
However, in order to be a proportionate limitation on the right to
privacy, regimes that permit the collection and disclosure of personal
information need to be sufficiently circumscribed. In this respect, the power
in proposed sections 74F(2),74H(2),74J(2), and74K(2) to specify by legislative
instrument additional information that foreign stakeholders must provide to the
ACMA is broadly worded. It is not clear whether such an instrument would
require the collection of further personal information and, if so, what
safeguards would be in place to protect the right to privacy. International
human rights law jurisprudence states that laws conferring discretion or
rule-making powers on the executive must indicate with sufficient clarity the
scope of any such power or discretion conferred on competent authorities and
the manner of its exercise.[12] This is because, without sufficient safeguards, broad powers may be exercised
in such a way as to be incompatible with human rights.
1.12
It is also not clear from the statement of compatibility what safeguards
are in place relating to the access, storage and disclosure of any personal or
confidential information that is notified to the ACMA but not disclosed on the
register (such as a person's date of birth, or information considered to
prejudice materially the commercial interests of a person pursuant to section
74E(2)). For example, no information is provided in the statement of
compatibility as to whether there are any penalties for unlawfully disclosing
personal information, and who within the ACMA is entitled to access such
information.
Committee comment
1.13
The preceding analysis raises questions as to whether the
notification and disclosure requirements for the register of foreign owners of
media assets are a proportionate limitation on the right to privacy.
1.14
The committee therefore seeks the advice of the minister as to
whether the limitation on the right to privacy is proportionate to the stated
objective of the measure (including whether the power to determine by
legislative instrument the information that must be notified is sufficiently
circumscribed, and what safeguards apply relating to the collection, storage
and disclosure of personal and confidential information).
Civil penalties for failing to comply with notification requirements
1.15
Proposed sections 74F(3), 74H(3), 74J(3) and 74K(4) provide that a
foreign person who fails to properly notify the ACMA of being a foreign
stakeholder is liable to a civil penalty. Similarly, a person who fails to
notify the ACMA when they cease to be a foreign stakeholder is liable to a
civil penalty.[13] The amount of penalty unit for a non-body corporate is 60 penalty units
(currently $12,600). Further, if a person fails to comply with the section, it
would be a separate contravention for each day that the person has failed to
comply with the notification obligation.[14]
Compatibility of the measure with
criminal process rights
1.16
Under Australian law, civil penalty provisions are dealt with in
accordance with the rules and procedures that apply in relation to civil
matters (the burden of proof is on the balance of probabilities). However, if
the new civil penalty provisions are regarded as 'criminal' for the purposes of
international human rights law, they will engage the criminal process rights
under articles 14 and 15 of the International Covenant on Civil and Political
Rights (ICCPR).
1.17
The committee's Guidance Note 2 sets out detailed guidance in
relation to civil penalty provisions and provides that where a civil penalty
provision could potentially be considered 'criminal' the statement of compatibility
should explain whether the civil penalty provisions should be considered to be
'criminal' for the purposes of international human rights law.
1.18
However, the statement of compatibility has not addressed whether the
civil penalty provisions might be considered 'criminal' for the purposes of
international human rights law.
1.19
Applying the tests set out in the committee’s Guidance Note 2,
the first step in determining whether a penalty is 'criminal' is to look at its
classification in domestic law. As the civil penalty provisions are not
classified as 'criminal' under domestic law they will not automatically be
considered 'criminal' for the purposes of international human rights law.
1.20
The second step in assessing whether the civil penalties are 'criminal'
under international human rights law is to look at the nature and purpose of
the penalties. Civil penalty provisions are more likely to be considered
'criminal' in nature if they are intended to punish or deter, irrespective of
their severity, and if they apply to the public in general. Here, there is no
indication that the civil penalties are intended to be punitive and the
penalties only apply to 'foreign stakeholders' rather than the public in
general. However, no information is otherwise provided in the statement of
compatibility as to the nature and purpose of the penalties save for describing
the penalties as an 'administrative' penalty.[15]
1.21
The third step in assessing whether the penalties are 'criminal' under international
human rights law is to look at their severity. In assessing whether a pecuniary
penalty is sufficiently severe to amount to a 'criminal' penalty, the maximum
amount of the pecuniary penalty that may be imposed under the civil provision
in context is relevant. Here, it is not clear whether the maximum civil penalty
(60 penalty units) is, of itself, severe in the particular regulatory context.
However, as each day that a person fails to properly notify the ACMA is a
separate contravention, there is a potential that the overall penalty imposed
could be substantial. These issues were not addressed in the statement of
compatibility.
Committee comment
1.22
The committee seeks the advice of the minister as to whether the civil
penalty provisions in the bill may be considered to be 'criminal' in nature for
the purposes of international human rights law (having regard to the
committee's Guidance Note 2), addressing in particular:
- whether the nature and purpose of the penalties is such that the
penalties may be considered 'criminal';
- whether the severity of the civil penalties that may be imposed
on individuals is such that the penalties may be considered 'criminal', having
regard to the regulatory context; and
- if the penalties are considered 'criminal' for the purposes of
international human rights law, whether the measure accords with criminal
process rights (including specific guarantees of the right to a fair trial in
the determination of a criminal charge, such as the presumption of innocence
(article 14(2)).
Charter of the United Nations (Sanctions—Democratic People's Republic of
Korea) (Documents) Amendment Instrument 2017 (No. 1) [F2017L01456]
Purpose |
Amends the United Nations
(Sanctions – Democratic People's Republic of Korea) (Documents) Instrument
2017 to list documents specified by the Minister for Foreign Affairs that
list goods prohibited for export to, or importation from, the Democratic
People's Republic of Korea under the Charter of the United Nations (Sanctions
- Democratic People's Republic of Korea) Regulations 2008 |
Portfolio |
Foreign Affairs and Trade |
Authorising legislation |
Charter of the United
Nations (Sanctions – Democratic People’s Republic of Korea) Regulations 2008 |
Last day to disallow |
15 sitting days after
tabling (tabled in the Senate 13 June 2017) |
Rights |
Fair trial; quality of law;
liberty (see Appendix 2) |
Status |
Seeking additional
information |
Background
1.23
The committee has examined offence provisions arising out of sanctions
regulations on a number of previous occasions.[16] The human rights assessment of these regulations noted that proposed criminal
offences arising from the breach of such regulations on the supply of 'export
sanctioned goods' and the importation of 'import sanctioned goods' raised
concerns in relation to the right to a fair trial and the right to liberty.
Specifically, the offences did not appear to meet the quality of law test,
which provides that any measures which interfere with human rights must be
sufficiently certain and accessible, such that people are able to understand
when an interference with their rights will be justified. The Charter of the
United Nations (Sanctions—Democratic People's Republic of Korea) (Documents)
Amendment Instrument 2017 (No. 1) [F2017L01456] (the instrument) raises similar
human rights concerns.
Offences of dealing with export and import sanctioned goods
1.24
The instrument lists documents that are specified by the Minister for
Foreign Affairs as documents mentioning goods to be prohibited for export to,
or importation from, the Democratic People's Republic of Korea (DPRK).[17] Goods mentioned in the listed documents are incorporated into the definition of
'export sanctioned goods' and 'import sanctioned goods' for the purposes of the
Charter of the United Nations (Sanctions - Democratic People's Republic of
Korea) Regulations 2008 [F2016C01044] (2008 DPRK sanctions regulations).[18] The instrument re-lists a number of documents as well as adding some additional
documents to the list.[19]
1.25
The 2008 DPRK sanctions regulations define 'export sanctioned goods' as
including goods that are mentioned in a document specified by the minister by
legislative instrument.[20] The documents that are specified by the minister through the instrument take
various forms, including letters and information circulars.
1.26
Sections 9 and 10 of the DPRK sanctions regulations, respectively,
prohibit supply of export sanctioned goods to the DPRK, and importation of
import sanctioned goods from the DPRK. The Charter of the United Nations (UN
Sanction Enforcement Law) Declaration 2008 [F2017C00214] (the declaration)
provides that contravention of sections 9 and 10 of the DPRK sanctions regulations
are contraventions of a 'UN sanction enforcement law'. The effect of this is to
make a breach of those provisions a criminal offence under the Charter of
the United Nations Act 1945 (the United Nations Act). Therefore, a person
commits an offence under the United Nations Act by engaging in conduct
(including doing an act or omitting to do an act) that contravenes the
provisions in the 2008 DPRK sanctions regulations. This is then punishable by
up to 10 years' imprisonment and/or a fine of up to 2,500 penalty units
(or $525,000).
Compatibility of the measure with
human rights
1.27
The right to a fair trial and fair hearing is protected by article 14 of
the International Covenant on Civil and Political Rights (ICCPR). The right
applies to both criminal and civil proceedings. Article 9 of the ICCPR protects
the right to liberty including the right not to be arbitrarily detrained. The prohibition
against arbitrary detention requires that the state should not deprive a person
of their liberty except in accordance with law. The notion of 'arbitrariness' includes
elements of inappropriateness, injustice and lack of predictability.
1.28
Human rights standards require that interferences with rights must have
a clear basis in law. This principle includes the requirement that laws must
satisfy the 'quality of law' test, which means that any measures which
interfere with human rights must be sufficiently certain and accessible, such
that people are able to understand when an interference with their rights will
be justified.
1.29
The instrument, by amending the list of documents setting out goods to
be 'export sanctioned goods' and ultimately making supply of these goods a
criminal offence under the United Nations Act subject to a penalty of
imprisonment, engages and may limit the right to liberty.
1.30
In particular, as the definition of 'export sanctioned goods' may lack
sufficient certainty, the measure engages the right not to be arbitrarily
detained and the right to a fair trial. The definition of 'export sanctioned
goods', which is an important element of whether a person has engaged in
prohibited conduct such as export, import or supply under the 2008 DPRK
regulations, may be determined, as occurred here, through reference to goods
contained in documents listed in a legislative instrument.[21] In this case the list of documents contained in the instrument incorporates
documents, including letters and information circulars, into the definition of
'export and import sanctioned goods' for the purposes of prohibited conduct in
the 2008 DPRK regulations. Accordingly, as noted in previous human rights
analysis for similar related regulations, as the definition of an important
element of offences is determined by reference to goods 'mentioned' in the
listed documents the offence appears to lack a clear legal basis as the
definition is vaguely drafted and imprecise.[22] In particular there appears to be a lack of clarity about what is and what is
not prohibited for export and import. This raises specific concerns that, by
making a breach of such regulations a criminal offence, the application of such
an offence provision may not be a permissible limitation on the right to
liberty as it may result in arbitrary detention.
1.31
In this respect it is noted that measures limiting the right to liberty
must be precise enough that persons potentially subject to the offence
provisions are aware of the consequences of their actions.[23] The United Nations Human Rights Committee has also noted that any substantive
grounds for detention 'must be prescribed by law and should be defined with
sufficient precision to avoid overly broad or arbitrary interpretation or
application'.[24] It is unclear whether the documents listed in the instrument contain
sufficiently precise descriptions of goods, such as would meet appropriate
drafting standards for the framing of an offence. For example, the sixth and seventh
documents, INFCIRC/254/Rev.12/Part 1 and INFCIRC/254/Rev.9/Part 2, which have
been re-listed, appear to be circulars that provide guidelines for nuclear
transfers and transfers of nuclear-related dual-use equipment, materials,
software and related technology, as opposed to specific descriptions of
particular goods that are prohibited. Two of the new documents listed, S/2017/760
and S/2017/728, are letters from the chair of the United Nations Security
Council and contain a long list of materials, technology and equipment.
However, some of the goods are defined quite broadly by reference to, for
example, 'technology' for the 'development' or 'production' of other goods.
Further, given the potential difficulty in determining whether an item is
prohibited from export or import, it is unclear whether there are any
applicable safeguards or mechanisms that may assist persons to understand or
seek advice on their export and import obligations including the content of the
documents.
1.32
Despite the related human rights concerns raised in the committee's
previous reports, the statement of compatibility merely states that the
instrument 'is compatible with the human rights'.[25] It provides no assessment of the engagement of particular rights and only
provides a general description of what the instrument does. The statement of
compatibility therefore does not meet the standards outlined in the committee's Guidance Note 1.
Committee comment
1.33
The statement of compatibility for the instrument provides no assessment
of the compatibility of the instrument with the right to a fair trial, the
right to liberty, and quality of law test.
1.34
The preceding analysis raises questions as to the human rights
compatibility of the instrument with the right not to be arbitrarily detained,
the right to a fair trial and the quality of law test.
1.35
Accordingly, the committee requests the advice of the minister as to:
- whether the instrument is compatible with the right to a fair
trial, the right to liberty and the quality of law test (including whether
there are mechanisms in place for individuals to seek advice on their export
and import obligations); and
- whether a substantive assessment of the human rights
compatibility of such instruments with the right to liberty and the right to a
fair hearing could be included in statements of compatibility going forward
noting the requirements of the Human Rights (Parliamentary Scrutiny Act)
2011 and the concerns raised in the committee's previous reports.
Electoral Legislation Amendment (Electoral Funding and Disclosure Reform)
Bill 2017
Purpose |
Seeks to amend the funding
and disclosure provisions of the Commonwealth Electoral Act 1918,
including the establishment of public registers for certain non-political
persons and entities, amendments to the financial disclosure scheme, and a
prohibition on donations from foreign governments and state-owned enterprises |
Portfolio |
Finance |
Introduced |
Senate, 7 December 2017 |
Rights |
Right to take part in
public affairs, freedom of expression, right to privacy, freedom of
association (see Appendix 2) |
Status |
Seeking additional
information |
Registration requirement for political campaigners, third party campaigners
or associated entities
1.36
The Electoral Legislation Amendment (Electoral Funding and Disclosure
Reform) Bill 2017 (the bill) introduces a requirement for persons to be
registered as a 'political campaigner' if their 'political expenditure' (that
is, expenditure incurred for a 'political purpose'[26])
during the current, or in any of the previous three, financial years was
$100,000 or more.[27] A person is required to register as a 'third party campaigner' if the
amount of political expenditure incurred by or with the authority of the person
or entity during the financial year is more than the 'disclosure threshold'
($13,200);[28] the person or entity is not required to be registered as a political
campaigner; and the person or entity is not registered as a political
campaigner.[29] Additionally, an entity[30] is required to register as an 'associated entity' where any of the following
apply:
- the entity is controlled by one or more of the registered
political parties;
- the entity operates 'wholly, or to a significant extent, for the
benefit of' one or more of the registered political parties;
- the entity is a financial member of a registered political party;
- another person is a financial member of a registered political
party on behalf of the entity;
-
the entity has voting rights in a registered political party; or
- another person has voting rights in a registered political party
on behalf of the entity.[31]
1.37
Section 287H(5) provides that an entity will operate 'wholly, or to a
significant extent, for the benefit of' one or more registered political
parties if:
- the entity, or an officer of the entity acting in his or
her actual or apparent authority, has stated (in any form and whether publicly
or privately) that the entity is to operate:
- for the benefit of one or more registered
political parties; or
- to the detriment of one or
more registered political parties in a way that benefits one or more other
registered political parties; or
- for the benefit of a candidate
in an election who is endorsed by a registered political party; or
- to the detriment of a
candidate in an election in a way that benefits one or more registered
political parties; or
- the expenditure incurred by or with the authority of the
entity during the relevant financial year is wholly or predominantly political
expenditure, and that political expenditure is used wholly or predominantly:
- to promote one or more
registered political parties, or the policies of one or more registered political
parties; or
- to oppose one or more of the
registered political parties, or the policies of one or more registered
political parties, in a way that benefits one or more registered political
parties; or
- to promote a candidate in an
election who is endorsed by a registered political party; or
- to oppose a candidate in an
election in a way that benefits one or more registered political parties.
1.38
The registers of political campaigners, third party campaigners and of
associated entities are established and maintained by the electoral
commissioner.[32] The registers must include the name of each person or entity registered, the
name of the financial controller of the person or entity and, in the case of
associated entities, the names of any registered political parties with which
the entity is associated. Each of the registers may include any other
information determined by the electoral commissioner by legislative instrument.[33] The registers must be maintained electronically and be publicly available.[34]
Compatibility of the measure with
multiple rights
1.39
The obligation to register as a 'political campaigner', 'third party
campaigner' and 'associated entity' engages the freedom of expression, the
freedom of association, the right to take part in the conduct of public
affairs, and the right to privacy.
1.40
The right to freedom of expression in Article 19(2) of the International
Covenant on Civil and Political Rights (ICCPR) includes freedom to seek,
receive and impart information and ideas of all kinds, either orally, in
writing or print, in the form of art, or through any other media of an
individual's choice. As acknowledged in the statement of compatibility,
imposing compulsory registration obligations on certain persons interferes with
those persons' freedom to disseminate ideas and information, and therefore
limits the freedom of expression.[35] However, the bill also promotes the freedom of expression insofar as it allows
the public to receive information about the source of political communication.[36]
1.41
The right to freedom of association in Article 22 of the ICCPR protects
the right to join with others in a group to pursue common interests. The right
prevents States parties from imposing unreasonable and disproportionate
restrictions on the right to form associations, including imposing procedures
that may effectively prevent or discourage people from forming an association.
The statement of compatibility acknowledges that Article 22 is engaged and
limited by the bill by requiring entities (who may be associations of
individuals who join together as a group to pursue common interests) to
publicly register as 'associated entities'.[37]
1.42
The right to take part in public affairs includes the right of every
citizen to take part in the conduct of public affairs by exerting influence
through public debate and dialogues with representatives either individually or
through bodies established to represent citizens.[38] The statement of compatibility acknowledges that placing registration
obligations on persons who take part in exerting influence through debate and
dialogue with representatives may limit the right to take part in public
affairs.[39]
1.43
The right to privacy protects against arbitrary and unlawful
interferences with an individual's privacy and attacks on reputation, and also
includes respect for information privacy, including the right to control the
dissemination of information about one's private life. The statement of
compatibility acknowledges that the right to privacy is limited by the
requirement that persons and entities register as a 'political campaigner',
'third party campaigner' or an 'associated entity', as this would publicly
disclose personal information.[40]
1.44
For each of these rights engaged and limited, the statement of
compatibility states the limitations are permissible as the bill serves a
legitimate objective and is proportionate.
1.45
The statement of compatibility states that the 'genuine public interest'
that is served by the bill is two-fold: first, that it protects the free, fair
and informed voting essential to Australia's system of representative
government, and secondly, that it protects national security.[41] The statement of compatibility elaborates on these objectives as follows:
Registration of key non-party political actors promotes the
rights of citizens to participate meaningfully in elections by assisting them
to understand the source of political communication... Registration will
complement the [Electoral and Other Legislation Amendment Act 2017]
transparency reforms by:
- allowing
voters to distinguish between political opinions popular because of their
merits, and those that are common in public debate because their promoters
incurred significant political expenditure;
- allowing
voters to form a view on the effect that political expenditure is having on the
promotion of a particular political opinion, as opposed to opinions that are
being debated without financial backing; and
- discouraging
corruption and activities that may pose a threat to national security.
1.46
These are likely to be legitimate objectives for the purposes of
international human rights law. Requiring persons and entities who are closely
associated with registered political parties or who have incurred political
expenditure above a certain threshold for particular purposes to register those
relationships also appears to be rationally connected to this objective.
1.47
The statement of compatibility states that the registration requirements
introduced by the bill are proportionate because the provisions:
...apply to an objectively defined group of entities who freely
choose to play a prominent role in public debate, and provide financial or
administrative support to those who do.[42]
1.48
In order for a limitation on human rights to be proportionate, the
limitation must be sufficiently circumscribed to ensure that it is only as
extensive as is strictly necessary to achieve its objective. In this respect,
concerns arise in relation to the breadth of the definition of 'political
expenditure'. As noted earlier, the definition of 'political expenditure'
broadly refers to expenditure for political purposes. 'Political purpose' is in
turn defined broadly, including 'the public expression by any means of views on
an issue that is, or is likely to be, before electors in an election',
regardless of whether or not a writ has been issued for the election.[43]
1.49
This would appear to require, for example, an individual or civil
society organisation to register as a 'third party campaigner' if they expended
funds amounting to the disclosure threshold ($13,500) on a public awareness
campaign relating to a human rights issue or other important issue of public
interest (such as a public health awareness campaign) that was also an issue at
an election. This would appear to be the case regardless of how insignificant
or incidental the issue is at an election, as no distinction appears to be
drawn between whether an issue was one common to all political parties, or an
issue that is only raised by one candidate in an election. It is also not clear
the basis on which it is, or could be, determined whether an issue is 'likely
to be an issue' before electors at an election, and what criteria are in place
to make such a determination.
1.50
It is noted that there is a limitation to the definition of 'political
purpose', namely that the expression of views will not be for a 'political
purpose' if the sole or predominant purpose of the expression is the reporting
of news, the presenting of current affairs or any editorial content in news
media, or the expression is solely for genuine satirical, academic or artistic
purposes.[44] The explanatory memorandum explains that these exemptions are intended to
'ensure that the press, media, academia, artists and entertainers are not
required to register as a political actor by virtue of carrying on their core
business'.[45] However, that safeguard does not appear to apply to the examples provided in [1.48]
above.
1.51
There are also related concerns about the definition of 'political
expenditure' as it relates to the definition of 'associated entity'. As noted
earlier, the bill requires an entity to register as an 'associated entity'
where the expenditure incurred by or with the authority of the entity is wholly
or predominantly 'political expenditure' and that expenditure is used to
promote or to oppose one of the registered political parties or endorsed
candidates, or the policies of one or more of the registered political parties.
The concerns in relation to the definition of 'political expenditure'
discussed above therefore apply equally to the registration requirement for
associated entities. Moreover, the concern is heightened in relation to
associated entities because, as the explanatory memorandum explains, an
association can be inferred from negative campaign techniques in some
circumstances:
Where an entity operates to the detriment of, or to oppose, a
candidate or registered political party, they must do so in a way that benefits
one or more political parties in order to be deemed an associated entity under
subsection (5). The entity is associated with the party or parties that
benefited from the entity's negative campaigning. For an entity to be
associated with a registered political party because of negative campaign
techniques (that is, the entity opposes a party, or operates to its detriment),
intent to benefit is not required for an association to exist. For example, if
an election is contested by a limited number of parties, and an entity operates
predominantly to the detriment of a contesting party, the entity may be an
associated entity of the other party or parties.[46]
1.52
This would appear to capture a broad variety of circumstances. For
example, it appears an entity whose expenditure is wholly or predominantly
directed towards a public health issue may have to register as an 'associated
entity'. This could potentially occur where the public health issue features in
an election because a policy of a registered political party is to de-fund
services related to the issue, and the entity expends funds to campaign
actively against the policy of de-funding of the service due to its impact on public
health. This could benefit an opposing political party whose policy is to keep
the service funded, even if that is not the intent of the entity's campaign.
1.53
Thus, the ambiguity in the definition of 'political expenditure' and
potential breadth of the definition of 'associated entity' could lead to
considerable uncertainty for persons and entities who may be liable to
register. As such, this raises concerns as to whether the proposed registration
requirements for individuals and entities are sufficiently circumscribed. The
measure could also act as a potential disincentive for some individuals and
civil society organisations to run important campaigns, or could act as a
disincentive for individuals to form organisations to run such campaigns. In
other words, the registration requirement may have a particular 'chilling
effect' on the freedom of expression, freedom of association and right to take
part in public affairs for some groups and individuals.[47]
1.54
An additional issue in relation to the proportionality of the limitation
on the right to privacy is that, as a consequence of registration, personal
information about individuals may be publicly available. There is a risk that
registration may have negative reputational consequences for individuals or entities
required to register, such as criticism that the individual or entity is
political, partisan or not independent. In circumstances where the definition
of 'political expenditure' is very broad and may capture a wide range of
individuals and groups, this raises additional concerns that the bill goes
further than what is strictly necessary to serve the legitimate objective, and
may insufficiently protect against attacks on reputation that may result from
individuals and entities being required to register.[48] It also raises potential concerns that rather than providing greater
transparency the measure may create confusion in certain circumstances about
degrees of political connection.
Committee comment
1.55
The preceding analysis raises questions about the compatibility of the
registration requirement for political campaigners, third party campaigners or
associated entities with the right to freedom of expression, the right to
freedom of association, the right to take part in public affairs and the right
to privacy.
1.56
The committee therefore requests the advice of the minister as to
whether the limitation on these rights is proportionate to the stated
objective, in particular whether the registration requirements for political
campaigners, third party campaigners and associated entities are sufficiently
circumscribed, having regard to the breadth of the definitions of 'political
expenditure' and 'associated entities'.
1.57
Senator Reynolds deliberately did not participate in consideration of
this report entry as she wished to reserve her position pending further
consideration of the bill by the Joint Standing Committee on Electoral Matters,
of which she is the chair.
Civil penalties for failure to register as a political campaigner, third
party campaigner or associated entity
1.58
Subsection 287F(3) of the bill provides that a 'political campaigner'
who incurs political expenditure without being registered for a financial year
is subject to a maximum civil penalty of 240 penalty units ($50,400) per
contravention. Subsection 287F(4) provides that each day that a person or
entity is required to register as a political campaigner and has not, including
the day of registration, is a separate contravention of subsection (3). The
effect of this is that the maximum applicable penalty is 240 penalty units for
each day the person is in breach of subsection (3).
1.59
Similarly, where a person incurs political expenditure and is required
to be registered as a 'third party campaigner' and fails to register, the
person is subject to a maximum civil penalty of 120 penalty units ($25,200) per
day for each day the person is in breach of the subsection;[49] and incurring political expenditure where an 'associated entity' has failed to
register is subject to a maximum civil penalty of 240 penalty units per day
($50,400) for each day the associated entity is in breach.[50]
Compatibility of the measure with
the right to a fair trial and fair hearing rights
1.60
Under Australian law, civil penalties are dealt with in accordance with
the rules and procedures that apply in relation to civil matters; that is,
proof is on the balance of probabilities. However, civil penalty provisions may
engage the criminal process rights under articles 14 and 15 of the
International Covenant on Civil and Political Rights (ICCPR) where the penalty
is characterised as 'criminal' for the purposes of international human rights
law. Such civil penalties are not necessarily illegitimate or unjustified.
Rather it means that criminal process rights such as the right to be presumed
innocent (including the criminal standard of proof) and the prohibition against
double jeopardy apply. The committee's Guidance Note 2 sets out some of
the key human rights compatibility issues in relation to provisions that create
civil penalties.
1.61
The explanatory memorandum explains that the potential civil penalty
units that may apply for failing to register may be substantial. The following
example is provided in the explanatory memorandum in the context of failing to
register as a 'political campaigner':
Joseph's deadline for registration as a political campaigner
was 14 December 2017. He misses this deadline, applying for registration
on 25 January 2018. He is registered on 30 January 2018.
Joseph contravened section 287F for 47 days, and so may be
subject to a maximum civil penalty of 11,280 penalty units (47 days x 240
penalty units, approximately $2.4 million).[51]
1.62
The statement of compatibility states that the new civil penalty
provisions 'do not constitute criminal penalties for the purpose of human
rights law as they are not classified as criminal under Australian law and are
restricted to people in a specific regulatory context'.[52]
1.63
As set out in the committee's Guidance Note 2, the domestic
classification of the penalty is a relevant factor in determining whether a penalty
is classified as 'criminal'. However, the term 'criminal' has an 'autonomous'
meaning in human rights law, such that the classification of a penalty as a
civil penalty in domestic law does not automatically mean the penalty will be
considered as such for the purposes of international human rights law. In other
words, a penalty or other sanction may be 'criminal' for the purposes of the
ICCPR even though it is considered to be 'civil' under Australian domestic law.
1.64
The next step in assessing whether the civil penalties are 'criminal'
under international human rights law is to look at the nature and purpose of
the penalties. A civil penalty is more likely to be considered 'criminal' in
nature if it applies to the public in general rather than a specific regulatory
or disciplinary context. Relevantly, the statement of compatibility asserts
that an additional reason these civil penalty provisions do not constitute
criminal penalties is because they 'are restricted to people in a specific
regulatory context'. However, while the proposed regime applies to regulate
electoral funding and disclosure, it could apply quite broadly to include
individual donors who satisfy the definition of 'political campaigner' or
'third party campaigner', or associations that fulfil the definition of
'associated entity'. It is unclear therefore whether the regime can
categorically be said not to apply to the public in general.
1.65
Civil penalty provisions are also more likely to be considered
'criminal' in nature if they are intended to punish or deter, irrespective of
their severity. No information has been provided in the statement of
compatibility as to the purpose of the civil penalties in this regard.
1.66
The third step in assessing whether penalties are 'criminal' under
international human rights law is to look at their severity. In assessing
whether a pecuniary penalty is sufficiently severe to amount to a 'criminal'
penalty, the maximum amount of the pecuniary penalty that may be imposed under
the civil penalty provision in context is relevant. This must be assessed with
due regard to regulatory context, including the nature of the industry or
sector being regulated and the relative size of the pecuniary penalties being
imposed. The severity of the penalty in this particular regulatory context is
unclear due to the lack of information in the statement of compatibility.
1.67
In any event, as noted above, the potential maximum amount that may be
proposed for breaching the registration requirement is 240 penalty units (for
political campaigners and associated entities) or 120 penalty units (for third
party campaigners). However, as the provisions operate such that each day a
person or entity is required to register and has not constitutes a separate
contravention of the subsection, the potential maximum penalty could be
substantial, as demonstrated by the example provided in the explanatory
memorandum quoted at [1.61] above.
1.68
If the civil penalty provisions were considered to be 'criminal' for the
purposes of international human rights law, they must be shown to be compatible
with the criminal process guarantees set out in articles 14 and 15 of the
ICCPR. For example, as noted above, the application of a civil rather than a
criminal standard of proof would raise concerns in relation to the right to be
presumed innocent, which generally requires that the prosecution prove each
element of the offence to the criminal standard of proof of beyond reasonable
doubt. Accordingly, were the civil penalty provisions to be considered
'criminal' for the purpose of international human rights law, there would be
questions about whether they are compatible with criminal process rights, and
whether any limitations on these rights are permissible.
Committee comment
1.69
The committee draws the attention of the minister to its Guidance
Note 2 and seeks the advice of the minister as to whether the civil penalty
provisions for failing to register as a political campaigner, third party
campaigner or associated entity may be considered to be 'criminal' in nature
for the purposes of international human rights law, in particular:
- information regarding the regulatory context in which the civil
penalty provisions operate, including the nature of the sector being regulated
and the relative size of the pecuniary penalties being imposed in context; and
- information regarding the purpose of the penalties (including
whether they are designed to deter or punish); and
- whether the severity of the civil penalties that may be imposed
on individuals is such that the penalties may be 'criminal' in nature.
1.70
If the penalties were to be considered 'criminal' for the purposes of
international human rights law, the committee seeks the advice of the minister
as to how, and whether, the measures could be amended to accord with criminal
process rights including specific guarantees of the right to a fair trial in
the determination of a criminal charge such as the presumption of innocence
(article 14(2)), the right not to incriminate oneself (article 14(3)(g)), the
right not to be tried and punished twice for an offence (article 14(7)) and a
guarantee against retrospective criminal laws (article 15(1)).
1.71
Senator Reynolds deliberately did not participate in consideration of
this report entry as she wished to reserve her position pending further
consideration of the bill by the Joint Standing Committee on Electoral Matters,
of which she is the chair.
Restrictions on and penalties relating to foreign political donations
1.72
Section 302D makes it unlawful for a person who is an agent of a
political entity (that is, registered political parties, state branches of
registered political parties, candidates, and Senate groups) or a financial
controller of certain political campaigners[53] to receive a gift of over $250 from a donor that is not an 'allowable donor'.
An allowable donor is a person who has a connection to Australia, such as an
Australian citizen or an entity incorporated in Australia.[54] A person who contravenes section 302D commits an offence punishable by 10 years
imprisonment or 600 penalty units, or both, or is liable to a civil penalty of
1000 penalty units ($210,000).[55]
1.73
Section 302E makes it unlawful for third party campaigners or political
campaigners who are registered charities or registered organisations to receive
a gift of over $250 from a non-allowable donor if that gift is expressly made
(whether wholly or partly) for one or more 'political purposes'.[56] A person who contravenes section 302E commits a criminal offence with a penalty
of 10 years imprisonment or 600 penalty units, or both, or is liable to a civil
penalty of 1000 penalty units.[57] A person also commits a criminal offence or is liable to a civil penalty
where non‑allowable donations to political campaigners that are
registered charities and registered organisations are paid into the same
account as that which is used for domestic political purposes.[58]
1.74
Section 302G prohibits a person soliciting gifts from non-allowable
donors intending that all or part of the gift be transferred to a political
entity, a political campaigner (except a registered charity or registered
organisation),[59] or 'any other person for one or more political purposes'. There is an exception
where the person solicited the gift in a private capacity for his or her
personal use.[60] A person who contravenes section 302G commits a criminal offence with a penalty
of 5 years imprisonment or 300 penalty units, or both, or is liable to a civil
penalty of 500 penalty units. There are also provisions imposing criminal and
civil penalties of the same amount as in section 302G where a person forms a
body corporate for the purposes of avoiding the foreign donation restrictions,[61] and where a person receives a gift from a non-allowable donor in order to
transfer the gift to a political entity, a political campaigner (except a
registered charity or registered organisation), or 'any other person for one or
more political purposes'.[62]
1.75
Section 302K introduces a criminal offence and civil penalty where a
person who is an agent of a political entity or financial controller of a
political campaigner (except registered charities or registered organisations)
receives a gift from a foreign bank account or by transfer by a person while in
a foreign country. The offence is punishable by 10 years imprisonment or 600
penalty units, or both, or a civil penalty of 1000 penalty units.[63]
1.76
Finally, section 302L makes it unlawful for a person who is the agent of
a political entity or the financial controller of a political campaigner
(except a registered charity or registered organisation) to receive a gift of
over $250 in circumstances where, before the end of 6 weeks after the gift is
made, appropriate donor information has not been obtained to establish the donor
is an allowable donor.[64] A person who contravenes section 302L commits a criminal offence with a penalty
of 10 years imprisonment or 600 penalty units, or both, or is liable to a civil
penalty of 1000 penalty units.[65]
Compatibility of the measure with
the right to freedom of expression, the right to freedom of association and the
right to participate in public affairs
1.77
The statement of compatibility acknowledges that the right to freedom of
expression, the right to freedom of association and the right to participate in
public affairs are engaged and limited by the foreign donations restrictions.[66] Each of these rights is summarised at [1.40] to [1.42] above.
1.78
In relation to the restrictions on foreign political funding to
registered political parties, state branches of registered political parties,
candidates, and Senate groups in section 302D, it is likely that this
restriction will be a proportionate limitation on the right to freedom of
expression, the right to freedom of association and the right to participate in
public affairs. A number of countries place restrictions or prohibitions on
foreign funding of political parties, and international human rights
jurisprudence confirms that such restrictions may be necessary in a democratic
society to ensure financial transparency in political life.[67]
1.79
However, concerns remain as to the proportionality of the limitation
insofar as the foreign donations restrictions are placed on third party
campaigners and political campaigners in section 302E. The statement of
compatibility states that the foreign donations restrictions are proportionate
for the following reasons:
The right to take part in public affairs by donating to key
political actors must be balanced against the need for transparency and
accountability in the political system and the overarching confidence in, and
the integrity of, political institutions and the democratic system. It is also
worth noting that, as this measure targets those without strong links to
Australia, very few people within Australia's jurisdiction will be impacted by
the foreign donations restrictions.[68]
1.80
However, for the reasons discussed above at [1.48] to [1.53] in relation
to the registration requirements for these persons or entities, there are
questions as to whether the breadth of the obligation for persons and entities
to register as 'third party campaigners' or 'political campaigners' is
sufficiently circumscribed, due to the broad definitions of 'political
expenditure' and in particular 'political purposes'.
1.81
Equally, the prohibition on foreign donations to third party
campaigners or certain political campaigners where those donations are for
'political purposes' is equally broad. Given the breadth of matters that may be
considered as a 'political purpose', there appears to be a risk that legitimate
fundraising activities for third party campaigners and political campaigners
concerning matters of public importance may be significantly restricted.
1.82
There also appears to be a risk that requiring persons who donate over
$250 to political campaigners or political entities to provide 'appropriate
donor information' in the form of a statutory declaration[69] may create a significant administrative burden for local donors, potentially
reducing the likelihood of donations from persons who are not the target of the
proposed laws. In this respect, it is noted that the United Nations
Special Rapporteur on the Right of Freedom of Assembly and Association has
stated that access to funding and resources for associations (including foreign
and international funding) is an 'integral and vital part of the right to
freedom of association'.[70] The Special Rapporteur also noted that legitimate public interest objectives,
such as responding to national security, should not be used in such a way as to
'undermine the credibility of the concerned association, or to unduly impede
its legitimate work'.[71]
1.83
The concerns that flow from the breadth of the expression 'political
purpose' also arise in relation to proposed section 302G, insofar as a person
contravenes the section if they solicit a foreign donation for the purpose of
transferring that donation to 'any other person for one or more political
purposes'. As set out above, 'political purpose' means 'the public expression
by any means of views on an issue that is, or is likely to be, before electors
in an election', regardless of whether or not a writ has been issued for the
election.[72] Again, given the scope of the concept of 'political purposes', it appears this
could apply to persons who solicit overseas funds for a broad variety of
activities and purposes that may be classified as 'political purposes' because
they arise (whether significantly or incidentally) as an issue in an election.
Committee comment
1.84
The preceding analysis raises questions about the compatibility of the
foreign donations restrictions in section 302E and the prohibition on
soliciting foreign donations in section 302G with the right to freedom of
expression, the right to freedom of association and the right to take part in
public affairs. This is because the breadth of the concept of 'political
purpose' as it applies to those sections may be insufficiently circumscribed so
as to be a proportionate limitation on these rights.
1.85
The committee therefore seeks the advice of the minister as to the
proportionality of the foreign donation restrictions as they apply to third
party campaigners and political campaigners (in section 302E) and 'any other
person' (in section 302G), having regard to the breadth of the concept of
'political purpose' (including whether the measures are sufficiently
circumscribed).
1.86
Senator Reynolds deliberately did not participate in consideration of
this report entry as she wished to reserve her position pending further
consideration of the bill by the Joint Standing Committee on Electoral Matters,
of which she is the chair.
Compatibility of the measure with
the right to a fair trial and fair hearing rights
1.87
As noted earlier in relation to the civil penalties regime for failure
to register as a political campaigner, third party campaigner or associated
entity, civil penalty provisions may engage the criminal process rights under
articles 14 and 15 of the ICCPR where the penalty is characterised as
'criminal' for the purposes of international human rights law. The relevant
principles are summarised above at [1.60] to [1.66].
1.88
The statement of compatibility states that the 'new civil penalty
provisions do not constitute criminal penalties for the purposes of human
rights law as they are not classified as criminal under Australian law and are
restricted to people in a specific regulatory context'.
1.89
However, as noted earlier and as set out in the committee's Guidance
Note 2, a penalty or other sanction may be 'criminal' for the purposes of
the ICCPR even though it is considered to be 'civil' under Australian domestic
law. Further, as with the civil penalties for failing to register as a
political campaigner, third party campaigner or associated entity, no
information available in the statement of compatibility to ascertain the nature
and purpose of the civil penalty in accordance with the second step in Guidance
Note 2, for example whether the penalties are intended to punish or deter.
1.90
As to the severity of the penalty, it is noted that the penalties
applicable for breaching the foreign donations restrictions are significant,
ranging from 500 penalty units to 1000 penalty units for the various offences.
However, noting that the severity of the penalty must be assessed with due
regard to the regulatory context, it is not possible to determine whether the
pecuniary penalty is sufficiently severe to amount to a 'criminal penalty' at
this stage due to the lack of information in the statement of compatibility.
1.91
As noted earlier, if the civil penalty provisions were considered to be
'criminal' for the purposes of international human rights law, they must be
shown to be compatible with the criminal process guarantees set out in articles
14 and 15 of the ICCPR.
Committee comment
1.92
The committee draws the attention of the minister to its Guidance
Note 2 and seeks the advice of the minister as to whether the civil penalty
provisions in relation to the foreign donations restrictions may be considered
to be 'criminal' in nature for the purposes of international human rights law,
in particular:
- information regarding the regulatory context in which the civil
penalty provisions operate, including the nature of the sector being regulated
and the relative size of the pecuniary penalties being imposed in context;
-
information regarding the purpose of the penalties (including
whether they are designed to deter or punish); and
- whether the severity of the civil penalties that may be imposed
on individuals is such that the penalties may be 'criminal' in nature.
1.93
If the penalties could be considered 'criminal' for the purposes of
international human rights law, the committee seeks the advice of the minister
as to how, and whether, the measures could be amended to accord with criminal
process rights including specific
guarantees of the right to a fair trial in the determination of a criminal
charge such as the presumption of innocence (article 14(2)), the right not to
incriminate oneself (article 14(3)(g)), the right not to be tried and punished
twice for an offence (article 14(7)) and a guarantee against retrospective
criminal laws (article 15(1)).
1.94
Senator Reynolds deliberately did not participate in consideration of
this report entry as she wished to reserve her position pending further
consideration of the bill by the Joint Standing Committee on Electoral Matters,
of which she is the chair.
Reporting of non-financial particulars in returns
1.95
Proposed section 314AB introduces new requirements for political parties
and political campaigners to disclose in their annual returns to the Electoral
Commission the details of senior staff employed or engaged by or on behalf of
the party or branch, or by or on behalf of the campaigner in its capacity as a
political campaigner, and any membership of any registered political party that
any of those members of staff have. Proposed section 309(4) imposes the same
obligation on election or by-election candidates to disclose in their returns
the name and party membership of senior staff, and proposed section 314AEB
imposes the same requirement on third party campaigners. 'Senior staff' is
defined in proposed section 287(1) to mean the directors of a person or
entity or any person who makes or participates in making decisions that affect
the whole or a substantial part of the operations of the person or entity.
1.96
Failure to provide the relevant return results in liability to civil
penalties. Candidates who fail to provide returns in accordance with section
309, and third party campaigners who fail to provide returns in accordance with
section 314AEB, are liable to a civil penalty of 180 penalty units per day for
each day the return is not provided within the required timeframe.[73] Failure to provide an annual return in accordance with section 314AB attracts
liability to a civil penalty of 360 penalty units per day for each day the
annual return is not provided within the required timeframe (that is, within 16
weeks after the end of the financial year).[74]
Compatibility of the measure with
the right to privacy
1.97
As noted earlier, the right to privacy includes respect for
informational privacy, including the right to control the dissemination of
information about one's private life. As acknowledged in the statement of
compatibility, the disclosure of the names of senior staff of candidates, third
party campaigners and of political parties in returns engages and limits the
right to privacy.[75]
1.98
The statement of compatibility states that these limitations on the
right to privacy are 'justifiable on the basis that they promote transparency
of the electoral system' and further states that:
It is important to remember that the individuals whose
privacy is impacted freely choose to play a prominent role in public debate and
put themselves, or those they represent, forward for public office. It is
therefore appropriate, objective, legitimate and proportional that the public
has access to this information.[76]
1.99
While the objective of transparency in the electoral system is likely to
be legitimate for the purpose of international human rights law, particularly
in light of the breadth of the concept of 'third party campaigners' discussed
above, it is unclear how disclosure of the names of senior staff and any
political party affiliation they may have is rationally connected to (that is
effective to achieve) that objective. No information is provided in the
statement of compatibility explaining this aspect of the bill.
1.100
There are also concerns as to the proportionality of the measure.
Limitations on the right to privacy must only be as extensive as is strictly
necessary to achieve its legitimate objective. The definition of 'senior staff'
is very broad, and is not limited to senior decision-makers but also extends to
any person who 'participates in making decisions that affect the whole or a
substantial part of the operations of the person or entity'. It is not clear
that persons who merely participate in making, but do not make, decisions can
be said to 'play a prominent role in public debate'.[77] The breadth of this definition, coupled with the breadth of the concept of
'third party campaigner', raises concerns that the measure may be broader than
necessary to achieve the objective, and that other, less rights-restrictive
options, may be available.
Committee comment
1.101
The preceding analysis raises concerns as to whether the requirement to
disclose the name and any political party affiliation of senior staff in
returns to the Electoral Commission is compatible with the right to privacy.
1.102
The committee therefore seeks the advice of the minister as to the
compatibility of the measure with this right, in particular:
- how the measure is rationally connected to (that is, effective to
achieve) the legitimate objective; and
- whether the measure is a proportionate limitation on the right to
privacy (including whether the measure is sufficiently circumscribed, and
whether there are any less rights-restrictive measures available).
1.103
Senator Reynolds deliberately did not participate in consideration of
this report entry as she wished to reserve her position pending further
consideration of the bill by the Joint Standing Committee on Electoral Matters,
of which she is the chair.
Compatibility of the measure with
the right to a fair trial and fair hearing rights
1.104
Similar issues arise in relation to the civil penalties associated with
failing to file a return as those discussed earlier, namely, whether the civil
penalties may be classified as 'criminal' for the purposes of international
human rights law. The relevant principles are summarised above at [1.60]
to [1.66].
1.105
The statement of compatibility provides the same justification for the
civil penalties as discussed previously, namely that the provisions do not
constitute criminal penalties for the purposes of human rights law as they are
not classified as criminal under Australian law and are restricted to people in
a specific regulatory context. As noted earlier, the classification of a civil
penalty under domestic law is one relevant factor in determining whether a
measure is 'criminal' for the purposes of international human rights law.
1.106
As to the second step outlined in Guidance Note 2, no information
is provided as to the purpose or nature of the penalty, including whether the
penalty is designed to deter or punish.
1.107
As to the severity of the penalty, as the provisions operate such that
each day a person or entity is required to submit a return but has not constitutes
a continuing contravention of the subsection, the potential maximum civil
penalty could be substantial. This raises concerns that the penalties may be
'criminal' for the purposes of international human rights law in light of the
severity of the penalty. However, the severity of the penalty in this
particular regulatory context is unclear due to the lack of information in the
statement of compatibility.
Committee comment
1.108
The committee draws the attention of the minister to its Guidance
Note 2 and seeks the advice of the minister as to whether the civil penalty
provisions in reporting of non-financial particulars in returns may be
considered to be 'criminal' in nature for the purposes of international human
rights law, in particular:
- information regarding the regulatory context in which the civil
penalty provisions operate, including the nature of the sector being regulated
and the relative size of the pecuniary penalties being imposed in context;
- information regarding the purpose of the penalties (including
whether they are designed to deter or punish); and
- whether the severity of the civil penalties that may be imposed
on individuals is such that the penalties may be 'criminal' in nature.
1.109
If the penalties could be considered 'criminal' for the purposes of
international human rights law, the committee seeks the advice of the minister
as to how, and whether, the measures could be amended to accord with criminal
process rights including specific
guarantees of the right to a fair trial in the determination of a criminal
charge such as the presumption of innocence (article 14(2)), the right not to
incriminate oneself (article 14(3)(g)), the right not to be tried and punished
twice for an offence (article 14(7)) and a guarantee against retrospective
criminal laws (article 15(1)).
1.110
Senator Reynolds deliberately did not participate in consideration of
this report entry as she wished to reserve her position pending further
consideration of the bill by the Joint Standing Committee on Electoral Matters,
of which she is the chair.
Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill
2017
Purpose |
Amends the Enhancing
Online Safety Act 2015 to prohibit the posting of, or threatening to
post, an intimate image without consent on a social media service, relevant
electronic service or a designated internet service; establish a complaints
and objections system to be administered by the eSafety Commissioner; provide
the commissioner with powers to issue removal notices or remedial directions;
establish a civil penalty regime to be administered by the commissioner; and
enable the commissioner to seek a civil penalty order from a relevant court,
issue an infringement notice, obtain an injunction or enforce an undertaking,
or issue a formal warning for contraventions of the civil penalty provisions;
and makes a consequential amendment to the Broadcasting Services Act 1992 |
Portfolio |
Communications and the Arts |
Introduced |
Senate, 6 December 2017 |
Rights |
Fair trial; criminal
process (see Appendix 2) |
Status |
Seeking additional
information |
Civil penalty provision
1.111
Proposed section 44B of the Enhancing Online Safety (Non-consensual
Sharing of Intimate Images) Bill 2017 (the bill) would prohibit posting, or
threatening to post, an intimate image without consent on a social media
service, relevant electronic service or a designated internet service.[78]
1.112
Under the bill, the e-Safety Commissioner may issue a removal notice,
requiring removal of the intimate image, to: a provider of a social media
service or relevant electronic service,[79] an end-user who posts an intimate image on the service,[80] or a hosting service provider which hosts the intimate image.[81] If a person has contravened or is contravening proposed section 44B, then the
e-Safety Commissioner may give that person a written direction ('remedial
direction') to take specified action to ensure they do not contravene section
44B in future.[82]
1.113
The bill is framed so that it triggers the civil penalty provisions of
the Regulatory Powers (Standard Provisions) Act 2014 in relation to a
contravention of the prohibition on the non-consensual sharing of intimate
images, and in relation to failure to comply with a removal notice or remedial
direction. This means that a civil penalty of up to 500 penalty units
($105,000) applies to such a contravention.[83]
Compatibility of the measure with
criminal process rights
1.114
As set out in the statement of compatibility, the civil penalty
provisions in the bill are 'aimed at protecting the privacy and reputation of
vulnerable people'.[84]
1.115
Under Australian domestic law, civil penalty provisions are dealt with
in accordance with the rules and procedures that apply in relation to civil
matters (the burden of proof is on the balance of probabilities). However,
civil penalty provisions engage the criminal process rights under articles 14
and 15 of the International Covenant on Civil and Political Rights (ICCPR)
where the penalty is regarded as 'criminal' for the purposes of international
human rights law. The term 'criminal' has an 'autonomous' meaning in human
rights law. In other words, a penalty or other sanction may be 'criminal' for
the purposes of the ICCPR even though it is described as 'civil' under
Australian domestic law.
1.116
Where a penalty is 'criminal' for the purposes of international human
rights law this does not mean that it is necessarily illegitimate or
unjustified. Rather it means that criminal process rights such as the right to
be presumed innocent (including the criminal standard of proof) and the right
not to be tried and punished twice (the prohibition against double jeopardy)
and the right not to incriminate oneself apply.
1.117
The committee's Guidance Note 2 sets out some of the key human
rights compatibility issues in relation to provisions that create offences and
civil penalties. The statement of compatibility for the bill usefully provides
an assessment of whether the civil penalty provisions may be considered
'criminal' for the purposes of international human rights law.[85]
1.118
Applying the tests set out in the committee's Guidance Note 2,
the first step in determining whether a penalty is 'criminal' is to look to its
classification under domestic law. In this instance, as noted in the statement
of compatibility, the penalties are classified as 'civil' under domestic law
meaning they will not automatically be considered 'criminal' for the purposes
of international human rights law.
1.119
The second step is to consider the nature and purpose of the penalty.
The penalty is likely to be considered to be 'criminal' if the purpose of the
penalty is to punish or deter, and the penalty applies to the public in general
(rather than being restricted to people in a specific regulatory or
disciplinary context). As the penalties under the bill may apply to a broad
range of internet and social media users it appears that the penalties apply to
the public in general. However, in relation to the purpose of the penalty, the
statement of compatibility states that the purpose of the penalty is to
encourage compliance rather than to punish. To the extent that this is the
purpose of the penalty, this indicates that the penalty should not be
considered 'criminal' under this step of the test.
1.120
The third step is to consider the severity of the penalty. A penalty is
likely to be considered 'criminal' where it carries a penalty of a substantial
pecuniary sanction. This must be assessed with due regard to regulatory
context, including the nature of the industry or sector being regulated and the
relative size of the pecuniary penalties being imposed. In this case an
individual could be exposed to a significant penalty of up to $105,000. The
statement of compatibility states that this 'reflects the extremely serious
nature of the non-consensual sharing of intimate images.'[86] However, the potential application of such a large penalty to an individual in
this context raises significant questions about whether this particular measure
ought to be considered 'criminal' for the purposes of international human
rights law. The statement of compatibility points to the court's discretion in
the amount of penalty to be imposed as a reason why the penalty should not be
considered criminal. Yet, it is the maximum penalty that may be imposed which
is relevant to considering whether a civil penalty is 'criminal' for the
purposes of international human rights law.
1.121
If the penalty is considered to be 'criminal' for the purposes of
international human rights law, the 'civil penalty' provisions in the bill must
be shown to be compatible with the criminal process guarantees set out in
articles 14 and 15 of the ICCPR. In this case, the measure does not appear to accord
with criminal process guarantees. For example, the burden of proof is on the
civil standard of the balance of probabilities rather than the criminal
standard of beyond reasonable doubt as required by the right to be presumed
innocent.
Committee comment
1.122
The preceding analysis raises questions about whether the civil
penalties may be considered 'criminal' for the purposes of international human
rights law.
1.123
The committee seeks the advice of the minister as to:
- whether the severity of the civil penalties that may be
imposed on individuals is such that the penalties may be 'criminal' in
nature for the purposes of international human rights law (having regard to the
committee's Guidance Note 2); and
- if the penalties are considered 'criminal' for the purposes of
international human rights law:
- whether they are compatible with criminal process rights
including specific guarantees of the right to a fair trial in the determination
of a criminal charge such as the presumption of innocence (article 14(2)), the
right not to incriminate oneself (article 14(3)(g)), the right not to be tried
and punished twice for an offence (article 14(7)) and a guarantee against
retrospective criminal laws (article 15(1));
- whether any limitations on these rights imposed by the
measures are permissible;[87] and
- whether the measures could be amended to accord with criminal
process rights.
Foreign Influence
Transparency Scheme Bill 2017; and
Foreign Influence Transparency Scheme (Charges Imposition) Bill 2017
Purpose |
Seeks to establish the
Foreign Influence Transparency Scheme, which introduces registration obligations
for persons or entities who have arrangements with, or undertake certain
activities on behalf of, foreign principals |
Portfolio |
Attorney-General |
Introduced |
House of Representatives, 7
December 2017 |
Rights |
Freedom of expression,
freedom of association, right to take part in public affairs, privacy (see Appendix
2) |
Status |
Seeking additional
information |
Registration and disclosure scheme for persons undertaking activities on
behalf of a foreign principal
1.124
The Foreign Influence Transparency Scheme Bill 2017 (the bill) seeks to
establish a scheme requiring persons to register where those persons undertake
activities on behalf of a 'foreign principal'[88] that are 'registrable' in relation to the foreign principal. Section 21 of the
bill provides that an activity on behalf of a foreign principal is
'registrable' if the activity is Parliamentary lobbying,[89] general political lobbying,[90] communications activity,[91] or donor activity,[92] and the activity is in Australia for the purpose of political or governmental
influence.[93] Additional registration requirements and broader activities requiring
registration apply to recent Cabinet Ministers, recent Ministers, members of
Parliament and other senior Commonwealth position holders.[94]
1.125
Section 11 of the bill provides that a person will undertake activity
'on behalf of' a foreign principal if the person undertakes the activity:
- under an arrangement with the foreign principal; or
- in the service of the foreign principal; or
- on the order or at the request of the foreign principal;
or
- under the
control or direction of the foreign principal; or
- with funding or supervision by the foreign principal; or
- in collaboration with the foreign principal.
1.126
Section 12 provides that a person undertakes an activity for the
purpose of political or governmental influence if:
- .... a purpose of the activity (whether or not there are
other purposes) is to influence, directly or indirectly, any aspect (including
the outcome) of any one or more of the following:
- a process in relation to a
federal election or a designated vote;
- a process in relation to a
federal government decision;
- proceedings of a House of the
Parliament;
- a process in relation to a
registered political party;
- a process in relation to a
member of the Parliament who is not a member of a registered political party;
- a process in relation to a
candidate in a federal election who is not endorsed by a registered political
party.
1.127
Section 22 of the bill imposes registration requirements on recent
cabinet ministers who undertake activities on behalf of a foreign principal.[95] 'Recent cabinet minister' is defined in proposed section 10 to mean, at a
particular time, a person who was a Minister and member of the Cabinet at any
time in the three years before that time, but who is not at the particular time
a Minister, member of the Parliament or a holder of a senior Commonwealth
position. The bill does not specify the kinds of activities a recent Cabinet
minister needs to undertake in order to be required to register.
1.128
Proposed section 23 imposes a registration obligation on recent
ministers, members of Parliament[96] and other holders of senior Commonwealth positions[97] who undertake activity on behalf of a foreign principal where, in undertaking
the activity, the person 'contributes experience, knowledge, skills or contacts
gained in the person's former capacity as a Minister, member of Parliament or
holder of a senior Commonwealth position'.[98] As with the registration requirement for cabinet ministers, proposed section 23
does not specify the kinds of activities that a recent minister, member of
Parliament or holder of senior Commonwealth position needs to undertake, save
that the person has used their experience gained in their former capacity in undertaking
that activity.
1.129
There are several exemptions from registration for certain types of
activity undertaken on behalf of a foreign principal, including activities
undertaken for the provision of humanitarian aid or humanitarian assistance,[99] legal advice or representation,[100] diplomatic, consular or similar activities,[101] or where the person is acting in accordance with a particular religion of a
foreign government,[102] where the activity is for the purpose of reporting news,[103] or where the activity is
the pursuit of bona fide business or commercial interests.[104] There is also a broad
power to make rules to prescribe activities as being exempt from registration.[105] The
penalty for non-compliance is a criminal offence punishable by 7 years
imprisonment where a person intentionally omits to apply or renew registration
when undertaking registrable activity.[106]
1.130
Section 43(1) of the bill provides that the Secretary must make
available to the public, on a website, certain information in relation to
persons registered in relation to a foreign principal. This includes the name
of the person and the foreign principal, a description of the kind of
registrable activities the person undertakes on behalf of a foreign principal,
and 'any other information prescribed by the rules'.[107] Section 43(2) qualifies this obligation by clarifying that the Secretary may
decide not to make particular information available to the public if the
Secretary is satisfied the particular information is commercially sensitive,
affects national security or is of a kind prescribed by the rules for the
purposes of this scheme.
1.131
The Foreign Influence Transparency Scheme (Charges Imposition) Bill
2017 (the Charges Bill) imposes charges in relation to the foreign
influence transparency scheme, and provides that the amount of charge payable
upon applying to register under the scheme or renewing registration under the
scheme is 'the amount prescribed by the regulations'.[108]
Compatibility of the measure with
the freedom of expression, the freedom of association, the right to take part
in the conduct of public affairs, and the right to privacy
1.132
The obligation to publicly disclose, by way of registration, information
about a person's relationship with a foreign principal and activities
undertaken pursuant to that relationship engages the freedom of expression, the
freedom of association, the right to take part in the conduct of public affairs
and the right to privacy.[109]
1.133
The right to freedom of expression in Article 19(2) of the International
Covenant on Civil and Political Rights (ICCPR) includes freedom to seek,
receive and impart information and ideas of all kinds, either orally, in
writing or print, in the form of art, or through any other media of her or his
choice. As acknowledged in the statement of compatibility, attaching compulsory
registration and public reporting obligations on persons acting on behalf of
foreign principals (as well as criminal penalties for non-compliance)
interferes with that person's freedom to disseminate ideas and information, and
therefore limits the freedom of expression.[110] However, the bill also promotes the freedom of expression insofar as it allows
the public to receive information with transparency about the source of that
information.[111]
1.134
The right to freedom of association in Article 22 of the ICCPR protects
the right to join with others in a group to pursue common interests. The right
prevents States parties from imposing unreasonable and disproportionate
restrictions on the right to form associations, including imposing procedures
that may effectively prevent or discourage people from forming an association.
The statement of compatibility acknowledges that the bill regulates activities
which may fall within the scope of Article 22, and may limit the right to
freedom of association by requiring associations acting on behalf of foreign
principals to register and disclose their activities.[112]
1.135
The right to take part in public affairs includes the right of every
citizen to take part in the conduct of public affairs by exerting influence through
public debate and dialogues with representatives either individually or through
bodies established to represent citizens.[113] The statement of compatibility acknowledges that registration and disclosure
obligations concerning activities that may be described as 'influencing through
public debate and dialogues' may limit the right to take part in public
affairs.[114]
1.136
The right to privacy protects against arbitrary and unlawful
interferences with an individual's privacy, and recognises that individuals
should have an area of autonomous development; a 'private sphere' free from
government intervention and excessive unsolicited intervention by others. The
right to privacy also includes respect for information privacy, including the
right to control the dissemination of information about one's private life. The
statement of compatibility acknowledges that the right to privacy is limited by
the requirement that persons publicly disclose information pertaining to the
activities and relationships undertaken on behalf of a foreign principal.[115]
1.137
For each of the rights engaged, the statement of compatibility states
that to the extent these rights are limited, the limitations are reasonable,
necessary and proportionate to the legitimate objective of the bill.
1.138
The statement of compatibility describes the objective of the bill as
follows:
The objective of the Bill is to introduce a transparency
scheme to enhance government and public knowledge of the level and extent to
which foreign sources may, through intermediaries acting on their behalf,
influence the conduct of Australia's elections, government and parliamentary
decision-making, and the creation and implementation of laws and policies.[116]
1.139
This is likely to be a legitimate objective for the purposes of human
rights law.[117] Requiring persons who have acted on behalf of foreign principals to register
also appears to be rationally connected to the achievement of this objective.
1.140
In order for a limitation on human rights to be proportionate, the
limitation must be sufficiently circumscribed to ensure that it is only as
extensive as is strictly necessary to achieve its objective. Limitations on
human rights must also be accompanied by adequate and effective safeguards to
protect against arbitrary application. Here, questions arise as to the breadth
of the definitions of 'foreign principal', 'on behalf of' and 'for the purpose
of political or governmental influence' creating an uncertain and potentially
very broad range of conduct falling within the scope of the scheme. For example,
concerns have been expressed as to the implications for academic freedom and
reputation where an Australian university academic would be required to
register upon receipt of a scholarship or grant wholly or partially from
foreign sources, where that funding is conditional on the researcher
undertaking and publishing research that is intended to influence Australian
policy-making.[118] Such behaviour would appear to fall within the types of registrable activities
that a person may undertake 'on behalf of' a foreign principal, as it is an
activity undertaken 'with funding or supervision by the foreign principal'[119] for the purpose of influencing 'a process in relation to a federal government
decision'.[120]
1.141
Similarly, the definition of 'foreign principal' is very broad, and
includes individuals who are neither an Australian citizen nor a permanent
Australian resident.[121] This definition, coupled with the definition of 'on behalf of', appears to be
broad enough to mean that section 21 of the bill imposes a registration requirement
on domestic civil society, arts or sporting organisations which may have
non-Australian members (such as individuals residing in Australia under a
non-permanent resident visa, or foreign members) who may be considered as
acting 'on behalf of' a foreign principal where they have undertaken activity
'in collaboration with' or 'in the service of' their membership (including
foreign members) when seeking funding from government, engaging in advocacy
work, or pursuing policy reform. In this respect the measures also engage the
right to equality and non-discrimination, discussed further below. The
uncertainty is heightened by the fact that the amount of the charge payable
upon registration is not contained in the Charges Bill but instead will be
prescribed by regulation,[122] as well as the significant criminal penalties imposed for non-compliance.[123]
1.142
In relation to proposed sections 22 and 23 of the bill, the application
of the provisions is even broader as any kinds of activities falling
within this provision undertaken 'on behalf of' a foreign principal gives rise
to a registration requirement. In this respect, the explanatory memorandum
states in relation to recent cabinet ministers that:
Given recent Cabinet Ministers have occupied a significant
position of influence, are likely to have a range of influential contacts with
decision making authority in the political process and have had access to
classified and sensitive information concerning current and recent Australian
Government priorities, it is in the public interest to know when such persons
have an arrangement with a foreign principal.[124]
1.143
Similarly in relation to recent ministers, members of parliament and
persons holding senior commonwealth positions, the explanatory memorandum
states that registration is justified because 'these persons bring significant
influence to bear in any activities undertaken on behalf of a foreign
principal' and that it is 'in the public interest to require transparency of such
individuals where the person is contributing skills, knowledge, contacts and
experience gained through their previous public role'. However, for the reasons
earlier stated, the definition of 'on behalf of' is very broad, and creates
uncertainty as to what activities fall within the scope of the scheme.
1.144
The breadth of these definitions, their potential application, the cost
of compliance and the consequence of non-compliance raise concerns that the
bill may be insufficiently circumscribed, and may unduly obstruct the exercise
of the freedom of expression, association and right to take part in public
affairs.[125]
1.145
It is acknowledged that the bill includes several exemptions from
registration requirements for certain types of activities (including exemptions
for activities undertaken on behalf of foreign principals solely, or solely for
the purposes of, reporting news, presenting current affairs or expressing
editorial content in news media[126]),
as well as a provision allowing for rules to be made specifying additional
exemptions from registration. It is not clear, however, whether these
safeguards in this bill are, of themselves, sufficient. It is also noted that
comparable international schemes contain exemptions in the primary legislation
to cover matters such as academic freedom, where agents of foreign principals
who engage in activities to further bona fide scholastic, academic or
scientific pursuits or the fine arts are not subject to registration
obligations.[127]
1.146
Further, in relation to the right to privacy, it is noted that the
Secretary's power in section 43(1)(c) of the bill to make available to the
public 'any other information prescribed by the rules' is very broad. While the
statement of compatibility notes that disclosure of information relevant to the
scheme is limited and carefully regulated,[128] no information is provided in the statement of compatibility as to the
safeguards in place to protect the right to privacy where the Secretary enacts
rules pursuant to section 43(1)(c), and whether there would be any less
rights-restrictive ways to achieve the objective. Noting that limitations on
the right to privacy must be no more extensive than is strictly necessary,
additional questions arise as to whether this aspect of the measure is
proportionate.
Committee comment
1.147
The preceding analysis raises questions as to the compatibility
of the proposed foreign influence transparency scheme with the freedom of
expression, the freedom of association, the right to take part in the conduct
of public affairs, and the right to privacy.
1.148
The committee seeks the advice of the minister as to whether the
measure is proportionate to the legitimate objective of the measure, including:
- whether the proposed obligation on persons to register where
they act 'on behalf' of a 'foreign principal' is sufficiently circumscribed to
ensure that the limitation on human rights is only as extensive as strictly
necessary;
- whether the measure is accompanied by adequate safeguards (with
particular reference to the exemptions from registration, including the
exemption to news media in section 28 of the bill); and
- in relation to the right to privacy, whether the Secretary's
power in section 43(1) to make available to the public 'any other
information prescribed by the rules' is sufficiently circumscribed and
accompanied by adequate safeguards.
1.149
Mr Leeser deliberately did not participate in consideration of this
report entry as he wished to reserve his position pending further consideration
of the bills by the Parliamentary Joint Committee on Intelligence and Security,
of which he is also a member.
Compatibility of the measure with
the right to equality and non-discrimination
1.150
The right to equality and non-discrimination provides that everyone is entitled
to enjoy their rights without discrimination of any kind, and that all people are
equal before the law and entitled without discrimination to equal and non-discriminatory
protection of the law.
1.151
'Discrimination' under articles 2 and 26 of the International Covenant
on Civil and Political Rights (ICCPR) includes both measures that have a
discriminatory intent (direct discrimination) and measures that have a
discriminatory effect on the enjoyment of rights (indirect discrimination).[129] The UN Human Rights Committee has explained indirect discrimination as 'a rule
or measure that is neutral at face value or without intent to discriminate',
but which exclusively or disproportionately affects people with a particular
personal attribute.[130]
1.152
While Australia maintains a discretion under international law with
respect to its treatment of non-nationals, Australia has obligations under
article 26 of the ICCPR not to discriminate on grounds of nationality or
national origin.[131]
1.153
The definition of 'foreign principal' is very broad, and includes
individuals who are neither an Australian citizen nor a permanent Australian
resident.[132] As noted earlier, this definition, coupled with the definition of 'on behalf
of', appears to be broad enough to require domestic civil society, arts or
sporting organisations which may have non-Australian members (such as
individuals residing in Australia under a non-permanent resident visa, or
foreign members) to register where they have undertaken activity 'in
collaboration with' or 'in the service of' their membership (including foreign
members) when seeking funding from government, engaging in advocacy work, or
pursuing policy reform. This raises concerns that the registration requirement
may have a disproportionate negative effect on persons or entities that have a
foreign membership base. Where a measure impacts on particular groups
disproportionately, it establishes prima facie that there may be
indirect discrimination. The statement of compatibility does not acknowledge
that the right to equality and non-discrimination is raised by the registration
requirement, so does not provide an assessment as to whether the limitation is
justifiable under international human rights law.
1.154
Differential treatment (including the differential effect of a measure
that is neutral on its face) will not constitute unlawful discrimination if the
differential treatment is based on reasonable and objective criteria such that
it serves a legitimate objective, is rationally connected to that legitimate
objective and is a proportionate means of achieving that objective.
1.155
As discussed at [1.139] above, it is likely that the objective of the
bill will be a legitimate objective for the purposes of international human
rights law, and that the registration requirements are rationally connected to
this objective. However for the reasons earlier stated, questions remain as to
whether the consequence of the broad definitions of 'foreign principal' coupled
with 'on behalf of' (that is, requiring a range of civil society or other
organisations acting 'in the service of' or 'in collaboration with' their
foreign membership to register) are overly broad such that this does not appear
to be the least rights-restrictive approach.
Committee comment
1.156
The committee notes that the breadth of the definition of 'foreign
principal', coupled with the definition of 'on behalf of', raises concerns that
the registration requirement may have a disproportionate negative effect on
persons or entities that have a foreign membership base, and could therefore
amount to indirect discrimination on the basis of nationality.
1.157
The statement of compatibility does not acknowledge that the foreign
influence transparency scheme engages the right to equality and
non-discrimination and therefore does not provide an assessment of whether the
scheme is compatible with this right.
1.158
The committee therefore seeks the advice of the minister as to the
compatibility of the foreign influence transparency scheme with the right to
equality and non-discrimination.
1.159
Mr Leeser deliberately did not participate in consideration of this
report entry as he wished to reserve his position pending further consideration
of the bills by the Parliamentary Joint Committee on Intelligence and Security,
of which he is also a member.
My Health Records (National Application) Rules 2017 [F2017L01558]
Purpose |
Provides for the nationwide
implementation of the My Health Record system on an opt-out basis |
Portfolio |
Health |
Authorising legislation |
My Health Records Act
2012 |
Last day to disallow |
Tabled in the House of
Representatives on 4 December 2017; tabled in the Senate on 5 December 2017.
Last day to disallow currently 26 March 2018 (Senate) |
Right |
Privacy (see Appendix 2) |
Status |
Seeking additional
information |
Background
1.160
The My Health Record system, previously referred to as the personally
controlled electronic health record (PCEHR), is an electronic summary of an
individual's health records. The system currently operates on an opt-in basis,
meaning that persons register to obtain a My Health Record.
1.161
The Health Legislation Amendment (eHealth) Act 2015 enables
trials to be undertaken in defined locations on an opt-out basis, with an
individual's health records automatically uploaded onto the My Health Record
system unless that individual takes steps to request that their information not
be uploaded. The Act also allows the opt-out process to be applied nationwide
following the trial. The committee previously assessed this legislation in its Twenty-ninth
Report of the 44th Parliament and Thirty-second report of the 44th
Parliament.[133]
Automatic inclusion of health information on the My Health Record system
1.162
The My Health Records (National Application) Rules 2017 [F2017L01558]
(the instrument) provides for the implementation of the My Health Record system
nationwide on an opt-out basis. Under the scheme, a My Health Record will
automatically be created for all healthcare recipients,[134] unless they choose to opt-out.
1.163
Under the instrument, all people with an Individual Healthcare
Identifier (IHI), which includes all people enrolled in Medicare or with a
Department of Veterans' Affairs file number, will be provided the opportunity
to opt-out during a three-month 'opt-out period' before their record is
automatically created.[135] Healthcare recipients can also choose to cancel or suspend their registration
at any time after their My Health Record is created.[136]
Compatibility of the measure with
the right to privacy
1.164
The right to privacy includes respect for informational privacy,
including the right to respect for private and confidential information,
particularly the use and sharing of such information and the right to control
the dissemination of information about one's private life. By enabling the
uploading of the personal health records of all healthcare recipients onto the
My Health Record system, the instrument engages and limits the right to privacy.
In this respect, as explained on the Department of Health website, My Health
Records may contain very extensive health information such as records of 'medical
consultations, blood tests and x-ray reports and prescriptions filled.'[137]
1.165
The statement of compatibility acknowledges that the instrument engages
and limits the right to privacy but concludes that any limitation is necessary,
reasonable and proportionate to achieving the objective of improving healthcare
for Australians. The statement of compatibility also sets out that the measure
promotes the right to health by 'improving the sharing of health information
between treating healthcare providers, leading to quicker and safer treatment
decisions and reducing repetition of information for patients and duplication
of tests'.[138]
1.166
The broad objective of improving healthcare for all Australians is
likely to be considered a legitimate objective for the purposes of
international law. It may also be accepted that the sharing of health
information between health practitioners through the My Health Record system
may help enable more efficient and informed treatment of patients, therefore
contributing to improved healthcare. The measure would therefore appear to be
rationally connected to the objective.
1.167
In order to be a proportionate limitation on the right to privacy, a
limitation should only be as extensive as is strictly necessary to achieve its
objective. In this respect, there are concerns as to whether the measure is the
least rights restrictive way to achieve the stated objective for the purposes
of international human rights law. In particular, the blanket application of
the system nationwide on an opt-out basis may be overly broad. It is noted that
opt-in arrangements, where an individual expressly consents to having their
health information uploaded to the online register, appears to constitute a
less rights restrictive alternative. The statement of compatibility explains
that the current arrangements are not effective to encourage broader
participation, 'creating a barrier to achieving the full benefits of the system
for individuals'.[139]
1.168
While increasing the number of people using the My Health Record system
may potentially assist to achieve the objective of improving health outcomes,
it is not clear whether a less rights restrictive approach to increasing the
number of people using the system may be reasonably available. This may
include, for example, measures promoting public awareness of and participation
in the system in its current opt-in form or encouraging individuals with
complex or serious health needs to opt-in. Further, information as to why, and
the extent to which, the current opt-in system has not succeeded and is not a
reasonably available alternative on an ongoing basis would assist in assessing
whether the limitation on the right to privacy is proportionate. It is also
possible that some people may not have opted-in to the My Heath Record system
on the basis of reasonable concerns about their privacy. Further, it is unclear
that automatically uploading key aspects of the medical records of all health
care recipients is necessary to improve health outcomes for each individual. For
example, it is unclear whether individuals who do not have ongoing or complex
health needs will benefit from the proposed system.
1.169
Another relevant consideration in determining the proportionality of the
measure is whether there are adequate safeguards in place to ensure that the
limitation on the right to privacy is no more extensive than is strictly
necessary. The statement of compatibility sets out a range of measures aimed at
safeguarding informational privacy, including that individuals can restrict
access to certain information, including Medicare information; effectively
remove certain documents from the system; request their healthcare provider not
upload certain information; monitor login activity in relation to their My
Health Record; and cancel their registration at any time.[140] These points appear to provide individuals some measure of control over their
electronic record. However, based on the information provided, it is unclear as
to the process for individuals to opt-out or control what is accessible through
the My Health Record.
1.170
Other aspects of the system may not be sufficiently circumscribed,
including in relation to the retention of data. The explanatory memorandum for
the Health Legislation Amendment (eHealth) Bill 2015 explains that, when an
individual cancels their existing My Health Record, information compiled on the
individual up to that point will be retained, but cannot be accessed by any
entity.[141] This apparently open-ended practice of retention raises further questions as to
whether the limitation on the right to privacy is the least rights restrictive
alternative to meet its objective.
1.171
The statement of compatibility also explains that healthcare recipients
will have a 'reasonable period of time' to opt-out of the system, which is a
three month window beginning from a future date to be specified by the
minister.[142] The explanatory statement explains that:
[i]n order to opt-out, a person must give notice to the
System Operator in a particular manner. In practice, a person will be able to
give this notice in a number of ways and at a time or period specified by the
Minister, depending on their circumstances.
1.172
However, no specific information is set out in the explanatory materials
as to how a person opts out in practice. Of particular concern is how the
process would cater for people with communication difficulties or those without
internet access.
1.173
A related question concerns how individuals will be made aware of the
national opt-out arrangements and other relevant information about the My
Health Record system. The importance of this aspect of the proposed rollout was
noted in the final evaluation report of participation trials in the My Health
Record system, commissioned by the Department of Health and conducted by
Siggins Miller Consultants in 2016, which emphasised 'the need for any future
national change and adoption strategy to include a much bigger emphasis on
awareness and education'.[143] The statement of compatibility states that:
[c]omprehensive information and communication activities are
being planned to ensure all affected individuals, including parents, guardians
and carers, are aware of the opt-out arrangements, what they need to do to
participate, how to adjust privacy controls associated with their My Health
Record, or opt-out if they choose.[144]
1.174
However, no further information is provided as to what these
communication initiatives will entail and how they will be effective to ensure
all individuals are made aware of the My Health Record system including their
ability to opt-out or control disclosure of information via the system. It is
further noted that, as health recipients subject to the scheme will include a
range of individuals with specific needs, including children[145] and persons with disabilities, any information and communication activities
about the system would likely need to be appropriately tailored.
Committee comment
1.175
The preceding analysis raises questions as to whether the measure
is a permissible limitation on the right to privacy. The committee therefore
seeks the advice of the minister as to whether the measure is reasonable and
proportionate to achieve the stated objective and, in particular:
- whether the measure is the least rights restrictive way of
achieving its stated objective (including why current opt-in arrangements could
not be pursued on an ongoing basis, why it is necessary to automatically
include the health record of all Australians and healthcare recipients on the
My Health Record (rather than, for example, only those with complex or ongoing
health conditions), and whether the retention of data after cancellation of a
My Health Record account is adequately circumscribed); and
- whether there are sufficient processes and safeguards in place
to ensure awareness and information in relation to the system, including the
ability to opt-out or control information disclosure, will be adequately
conveyed to the public, including in relation to children and persons with a
disability.
National Broadcasters Legislation Amendment (Enhanced Transparency Bill)
2017
Purpose |
Amends the Australian
Broadcasting Corporation Act 1983 and the Special Broadcasting Service
Act 1991 to require annual reporting of employees whose combined salary
and allowances are in excess of $200,000 annually |
Portfolio |
Communications and the Arts |
Introduced |
Senate, 6 December 2017 |
Right |
Privacy (see Appendix 2) |
Status |
Seeking additional information |
Disclosure of employee and on-air talent salaries in excess of $200,000
1.176
The National Broadcasters Legislation Amendment (Enhanced Transparency
Bill) 2017 (the bill) seeks to amend the Australian Broadcasting Corporation
Act 1983 and the Special Broadcasting Service Act 1991 to require
the Australian Broadcasting Corporation (ABC) and the Special Broadcasting
Service (SBS) to disclose in their annual reports the names, position, salary
and allowances for employees whose combined salary and allowances exceed
$200,000 annually.[146] Similarly, for individuals who are not employees but are subject to an 'on air
talent contract',[147] the bill requires that the total amount paid to the individual, the name of the
individual and the nature of services performed by the individual be disclosed
in the annual report.[148]
Compatibility of the measure with
the right to privacy
1.177
The right to privacy encompasses respect for informational privacy,
including the right to respect a person's private information and private life,
particularly the storing, use and sharing of personal information.
1.178
The bill engages and limits the right to privacy by requiring the public
disclosure of the names and amounts of remuneration of employees and on-air
talent who are paid in excess of $200,000.
1.179
The statement of compatibility acknowledges that the right to privacy is
engaged and limited by the measure, but states that any limitation is
reasonable, necessary and proportionate.[149]
1.180
The statement of compatibility explains the objective of the bill:
There is a strong public interest in ensuring the Australian
people can scrutinise the spending by publicly funded national broadcasters for
the engagement of on-air talent contactors and employees. The amendments that
would be made by the Bill will allow the public to hold the national
broadcasters to account regarding the spending of public monies, and achieving
appropriate value for money, in relation to remuneration for employees and
on-air talent.
...
This reporting obligation will allow the public to have
visibility of how proactive the national broadcasters are in closing any
identified gender salary gaps.[150]
1.181
Promoting public transparency and scrutiny relating to the use of public
revenues is likely to be a legitimate objective for the purposes of
international human rights law,[151] as is the objective of reducing any gender salary gap. Insofar as the national
broadcasters' expenditure on salaries of employees and on-air talent comes from
public funds, disclosure of such salaries appears to be rationally connected to
these objectives.
1.182
However, concerns arise as to whether the public disclosure of the names
and remuneration of employees and on-air talent earning over $200,000 is
proportionate to the legitimate objectives being pursued. Notwithstanding that
persons employed or engaged by the ABC and SBS are remunerated for undertaking
a public role, disclosure of a person's salary reveals a person's financial
standing to the public at large and therefore constitutes a significant
intrusion on a person's personal circumstances and private life.[152] For
this to be proportionate, the measure should only be as extensive as is
strictly necessary to achieve its legitimate objective.
1.183
In this respect, the minister explains in the statement of
compatibility:
The publication of de-identified and potentially aggregate
information about these employees’ and salaries and allowances, and the
payments made to contractors in key on-air roles, is considered inadequate
because it would not provide the transparency required to not only allow the
public to see how its money is being spent, but also in identifying if there is
a gender salary gap across similar roles or level of talent. This reporting
obligation will allow the public to have visibility of how proactive the national
broadcasters are in closing any identified gender salary gaps.
...
Publication of the employee or individual’s name will allow
the Australian public to identify the person and the role they perform, and
assess whether the national broadcasters have achieved appropriate value for
money in relation to the spending of public monies. Accordingly, the amendments
are considered reasonable and proportionate to the objective of promoting
public transparency and scrutiny and reducing the gender salary gap.[153]
1.184
While the minister explains that de-identified and aggregate information
would be insufficient to determine how the ABC and SBS are spending their money
and to identify any gender salary gap, it is not clear from the statement of
compatibility why this should be the case. There appear to be other, less
rights-restrictive, measures available that would be sufficient to allow
members of the public to hold the national broadcasters accountable for how they
spend public funds, without limiting the right to privacy of employees and
on-air talent. For example, de-identified or anonymised information as to
the number of employees and on-air talent earning over certain amounts, such as
setting out the number of employees paid more than a certain amount in pay
bands, would also reveal how the ABC and SBS are spending public money.
Additionally, a disparity in gender pay gap could be revealed through requiring
disclosure of the number or proportion of female employees and on-air talent
earning over $200,000 compared to male employees and on-air talent in the same
position.
Committee comment
1.185
The committee notes that the right to privacy is engaged and
limited by the measure and the preceding analysis raises questions as to
whether it is the least rights-restrictive way of achieving the stated aim.
1.186
The committee therefore requests the advice of the minister as to
whether the limitation is proportionate to achieving the stated objectives,
including whether there are less rights restrictive ways to achieve the stated
objectives, such as:
- requiring the ABC and SBS in their annual reports to disclose the
number or proportion of female employees and on-air talent earning over
$200,000 compared to male employees and on-air talent in the same position; or
- requiring disclosure of de-identified or anonymised information
as to the number of employees and on-air talent earning over certain amounts
(as specific figures or in pay bands).
Parliamentary Service Amendment (Managing Recruitment Activity and Other
Measures) Determination 2017 [F2017L01353]
Purpose |
Amends the Parliamentary
Service Determination 2013 [F2013L00448] relating to certain employment
processes, measures and notification requirements |
Portfolio |
Prime Minister and Cabinet |
Authorising legislation |
Parliamentary Service
Act 1999 |
Last day to disallow |
15 sitting days after
tabling (tabled House of Representatives 17 October 2017, tabled Senate 18
October 2017) |
Rights |
Privacy (see Appendix 2) |
Status |
Seeking additional
information |
Background
1.187
The Parliamentary Service Amendment (Managing Recruitment Activity and
Other Measures) Determination 2017 [F2017L01353] (2017 Determination), which
amends the 2013 Determination,[154] raises issues similar to those recently considered by the committee in relation
to the Australian Public Service Commissioner's Directions 2016 [F2016L01430]
(the APS 2016 Directions).[155]
APS Directions: 2013 and 2016
1.188
The committee previously reported on issues related to the current APS
2016 Directions when its predecessor, the APS 2013 Directions, were first made
as well as in relation to subsequent amendments.[156]
1.189
The APS 2013 directions provided, among other things, for notification
in the Public Service Gazette (the Gazette) of certain employment decisions for
Australian Public Service (APS) employees. The committee raised concerns about
the human rights compatibility of these measures, particularly in relation to
the publication of decisions to terminate employment and the grounds for
termination. These concerns related to the right to privacy and the rights
under the Convention on the Rights of Persons with Disabilities in relation to
notification of termination of employment on the ground of physical or mental
incapacity. Additionally, there were right to privacy concerns in relation to
the requirement to notify in the Gazette of termination decisions on the basis
of a breach of the Code of Conduct.
1.190
In response to these concerns, the Australian Public Service
Commissioner (the Commissioner) conducted a review of the measures. As a
result, the APS 2013 directions were amended in 2014 to
remove most requirements to publish termination decisions in respect of APS
employees. This addressed many of the concerns in relation to the right to
privacy and the rights of persons with disabilities.[157]
1.191
However, the requirement to notify termination on the grounds of the
breach of the Code of Conduct in the Gazette was retained. The committee
considered that this retained measure remained of concern as it engaged and limited
the right to privacy and appeared not to be a proportionate limitation on this
right.[158]
1.192
In 2016, new APS directions (APS 2016 Directions) were made and reported
on by the committee,[159] including in relation to the continuing requirement that decisions to terminate
the employment of an ongoing APS employee for breach of the Code of Conduct
must be published in the Gazette.[160] In response, noting that the committee had raised valid concerns, the
Commissioner undertook a further review into the necessity of publicly
notifying this information.[161]
1.193
On 22 June 2017, the Commissioner informed the committee that, after consultation
with APS agencies, he had concluded that these publication arrangements should
not continue. Instead, the Commissioner intended to establish a new secure
database of employment terminations for breaches of the Code of Conduct which
would not be accessible to the general public. As outlined in the
Commissioner's response, this would enable agencies to access the database and
maintain the integrity of their respective workforces, while appropriately respecting
the privacy of affected employees. The Commissioner stated that relevant amendments
to the APS 2016 Directions would also be made.[162] The committee welcomed this response and noted that this approach would
substantially address the right to privacy concerns in relation to the measure.[163]
Parliamentary Determinations:
2013 and 2016
1.194
In respect of Parliamentary Service employees, the 2013 Determination contained
measures relating to notification in the Gazette of certain employment
decisions similar to those contained in the APS 2013 Directions. The committee
therefore reported on the 2013 Determination raising substantially the
same issues.[164]
1.195
Although the APS 2013 Directions were initially amended in 2014, the
2013 Determination remained in place until the 2016 Determination was made.[165] Consistent with the approach taken by the Commissioner in the APS 2014
Amendment Determination, the 2016 Determination removed most of the
requirements to publish termination decisions in the Gazette in respect of
Parliamentary Service employees, but retained the requirement to notify termination
on the grounds of a breach of the Code of Conduct in the Gazette.
1.196
In Report 1 of 2017 the committee welcomed the amendments made,
but again raised concerns about compatibility of the publication requirement
for breaches of the Code of Conduct with the right to privacy.[166] The committee requested advice as to whether the 2016 Determination would
be reviewed in line with the review being undertaken in relation to the APS
2016 Directions.[167] The legislation proponents (the presiding officers), advised the committee that
they would further examine the 2016 Determination in light of the
Commissioner's review into the APS 2016 Directions.[168]
Publishing a decision to terminate for breach of the Code of Conduct
1.197
The 2017 Determination introduces a number of new measures and also
remakes many requirements from the 2016 determination, including the
requirement to publish in the Gazette details of a Parliamentary Service
employee when their employment has been terminated on the grounds of breach of
the Code of Conduct.[169]
Compatibility
of the measure with the right to privacy
1.198
The statement of compatibility noted that the 2017 Determination
replicates changes previously made to address the committee's concerns in
respect of the 2013 Determination.[170] As outlined above, while the 2016 amendments addressed a number of matters,
concerns remain about the remade requirement to publish notification of
termination on the grounds of a breach of the Code of Conduct. The statement of
compatibility does not address this limitation on the right to privacy.
1.199
As outlined in the committee's previous reports, this limitation is
unlikely to be permissible as a matter of international human rights law. In
order to be a proportionate limitation on the right to privacy the measure must
be the least rights restrictive way of achieving a legitimate objective. Other
methods by which an employer could determine whether a person has been
dismissed from employment for breach of the Code of Conduct include maintaining
a centralised, internal record of dismissed employees, or to use references to
ensure that a previously dismissed employee is not rehired by the Australian
Parliamentary Service. The previous report also noted that it would be possible
to publish information without naming the employee, which could serve to
maintain public confidence that serious misconduct is being dealt with
properly.[171]
1.200
Previous correspondence from the presiding officers indicated that they
would consider the outcome of the APS Commissioner's review. The APS
Commissioner's review has since concluded that the current arrangements for publishing
terminations of employment for breaching the Code of Conduct in the Gazette should
be discontinued and replaced with a new secure database of relevant information
not accessible to the general public. However, the statement of compatibility
for the 2017 Determination does not indicate whether this outcome has been
considered by the presiding officers.
Committee comment
1.201
Publishing the details of a Parliamentary Service employee whose
employment has been terminated for breach of the Code of Conduct engages and
limits the right to privacy.
1.202
The committee previously raised questions in relation to a substantively
identical measure in the APS 2016 directions, which was reviewed by the Australian
Public Service Commissioner who found it should be discontinued. Instead, a new
secure database of employment terminations for breaches of the Code of Conduct,
not accessible to the public, would be established and relevant amendments to
the APS 2016 Directions would also be made.
1.203
Noting this outcome, the committee seeks advice from the presiding
officers as to whether a similar approach will be implemented with respect to
the Australian Parliamentary Service and whether the 2017 Determination will be
amended to reflect this approach.
Further response required
1.204
The committee seeks a further response from the relevant minister or
legislation proponent with respect to the following bills and instruments.
Fair Work Laws Amendment (Proper Use of Worker Benefits) Bill 2017
Purpose |
Amends the Fair Work Act
2009 to: prohibit terms of a modern award or an enterprise agreement
requiring or permitting contributions for the benefit of an employee to be
made to any fund other than a superannuation fund, a registered worker
entitlement fund or a registered charity; prohibit any term of a modern
award, enterprise agreement or contract of employment permitting or requiring
employee contributions to an election fund for an industrial association; and
prohibit any action with the intent to coerce an employer to pay amounts to a
particular worker entitlement fund, superannuation fund, training fund,
welfare fund or employee insurance scheme. Amends the Fair Work
(Registered Organisations) Act 2009 to: require registered organisations
to adopt, and periodically review, financial management policies; require
registered organisations to keep credit card records and report certain
loans, grants and donations; require specific disclosure by registered
organisations and employers of the financial benefits obtained by them and
persons linked to them in connection with employee insurance products,
welfare fund arrangements and training fund arrangements; and introduce a
range of new penalties relating to compliance with financial management,
disclosure and reporting requirements |
Portfolio |
Employment |
Introduced |
House of Representatives,
19 October 2017 |
Rights |
Freedom of association;
collectively bargain (see Appendix 2) |
Previous report |
12 of 2017 |
Status |
Seeking further additional
information |
Background
1.205
The committee first reported on the Fair Work Laws Amendment (Proper Use
of Worker Benefits) Bill 2017 (the bill) in its Report 12 of 2017, and
requested a response from the Minister for Employment by 13 December 2017.[172]
1.206
The minister's response to the committee's inquiries was received on
19 December 2017. The response is discussed below and is reproduced in full at Appendix 3.
Prohibiting terms of industrial agreements requiring or permitting payments
to worker entitlement funds
1.207
Schedule 2 of the bill would amend the Fair Work Act 2009 (Fair
Work Act) to prohibit any term of a modern award or an enterprise agreement
requiring or permitting contributions for the benefit of an employee to be made
to any fund other than a superannuation fund, a registered worker entitlement
fund or a registered charity.[173]
Compatibility of the measure with
the right to freedom of association and the right to just and favourable
conditions at work
1.208
The right to freedom of association includes the right to collectively
bargain without unreasonable and disproportionate interference from the state.
The right to just and favourable conditions of work includes the right to safe
working conditions. These rights are protected by the International Covenant on
Civil and Political Rights (ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR).[174]
1.209
The interpretation of these rights is informed by International Labour
Organization (ILO) treaties, including the ILO Convention of 1948 concerning
Freedom of Association and Protection of the Right to Organise (ILO Convention
No. 87) and the ILO Convention of 1949 concerning the Right to Organise
and Collective Bargaining (ILO Convention No. 98), which protects the right of
employees to collectively bargain for terms and conditions of employment.[175] The
principle of 'autonomy of bargaining' in the negotiation of collective
agreements is an 'essential element' of Article 4 of ILO Convention No. 98
which envisages that parties will be free to reach their own settlement of a
collective agreement without interference.[176]
1.210
Prohibiting the inclusion of particular terms in an enterprise agreement
interferes with the outcomes of the bargaining process. Accordingly, the initial
human rights analysis stated that the measure engages and may limit the right
to just and favourable conditions of work and the right to collectively bargain
as an aspect of the right to freedom of association.
1.211
Measures limiting the right to freedom of association including the
right to collectively bargain may be permissible providing certain criteria are
satisfied. Generally, to be capable of justifying a limit on human rights, the
measure must address a legitimate objective, be rationally connected to that
objective and be a proportionate way to achieve that objective.[177] Further, Article 22(3) of the ICCPR and article 8 of the ICESCR expressly
provide that no limitations are permissible on this right if they are
inconsistent with the guarantees of freedom of association and the right to
collectively organise contained in the ILO Convention No. 87.
1.212
The ILO's Committee on Freedom of Association (CFA Committee), which is
a supervisory mechanism that examines complaints about violations of the right
to freedom of association and the right to collectively bargain, has stated
that 'measures taken unilaterally by the authorities to restrict the scope of
negotiable issues are often incompatible with Convention No. 98'.[178] The CFA
Committee has noted that there are some circumstances in which it might be
legitimate for a government to limit the outcomes of a bargaining process,
stating that 'any limitation on collective bargaining on the part of the
authorities should be preceded by consultations with the workers' and
employers' organizations in an effort to obtain their agreement'.[179]
1.213
Indeed, international supervisory mechanisms have previously raised
specific concerns in relation to current restrictions imposed on bargaining
outcomes under Australian domestic law.[180] In relation to restrictions on the scope of collective bargaining and
bargaining outcomes, CFA Committee noted that:
...the right to bargain freely with employers with respect to
conditions of work constitutes an essential element in freedom of association,
and trade unions should have the right, through collective bargaining or other
lawful means, to seek to improve the living and working conditions of those
whom the trade unions represent. The public authorities should refrain from any
interference, which would restrict this right or impede the lawful exercise
thereof. Any such interference would appear to infringe the principle that
workers’ and employers' organizations should have the right to organize their
activities and to formulate their programmes.[181]
1.214
In this respect the statement of compatibility acknowledges that the
measure engages the right to freedom of association, the right to voluntarily
reach bargaining outcomes, and the right to just and favourable conditions at
work. However, the statement of compatibility asserts that the limitation on
these rights is permissible. It states that the measure pursues the legitimate
objectives of addressing 'the potential for misappropriation of funds and [to]
avoid conflicts of interest and possible coercion.'[182] It points to the Final Report of the Royal Commission into Trade Union
Governance and Corruption (Heydon Royal Commission) in support of this
objective.[183] While the stated objectives may be capable of constituting a legitimate
objective for the purposes of international human rights law, the initial
analysis noted that it would have been useful if the statement of compatibility
had more fully explained how any findings from the Heydon Royal Commission
supported the importance of this objective as a substantial or pressing
concern.
1.215
The statement of compatibility provides some information as to whether
the measure is rationally connected to (that is, effective to achieve) its
stated objectives. It notes that the measure does not prohibit contributions to
worker entitlement funds but requires any contributions 'to be made to
registered worker entitlement funds that are subject to basic governance and
disclosure requirements designed to address potential conflicts of interest,
breaches of fiduciary duty and the potential for coercion'.[184] As such the measure would appear to be rationally connected to its stated
objective.
1.216
However, the statement of compatibility provides limited information as
to whether the limitation is proportionate. In order to be a proportionate
limitation on human rights a measure must be the least rights restrictive way
of achieving its stated objective.
1.217
Accordingly, the committee sought the advice of the Minister for
Employment as to:
- whether the limitation is a reasonable and proportionate measure
to achieve that objective (including findings by relevant international
supervisory mechanisms about whether the limitation is permissible); and
- whether consultation has occurred with the relevant workers' and
employers' organisations in relation to the measure.
Minister's response
1.218
The minister's response describes the current restrictions on bargaining
outcomes imposed by the Fair Work Act and restates the scope of the new
restrictions. The minister's response notes that the committee's initial report
stated that the limitation imposed by the measure appeared to be rationally
connected to its stated objective.
1.219
In relation to whether the limitation is reasonable and proportionate to
achieve the stated objective, the minister's response states:
Any worker entitlement fund, including those controlled by
any industrial association, can be registered provided it meets basic
governance and disclosure requirements. These requirements are designed to
address potential conflicts of interest, breaches of fiduciary duty and
coercive conduct. There is no restriction on who can be a member of a fund. The
provisions enhance the right to just and favourable conditions of work by
ensuring that money held by worker entitlement funds is used to benefit
workers. The amendments will provide employees with a guarantee that any
contributions they voluntarily make to a worker entitlement fund is subject to
appropriate scrutiny and oversight.
To the extent that the prohibition may engage any of these
rights, the measure is reasonable and proportionate and enhances workers'
rights by ensuring that money held on their behalf is protected. The amendments
are the least rights restrictive possible in that they do not represent an
unqualified prohibition on terms of industrial agreements that provide for
contributions to worker entitlement funds. Rather, they require such
contributions to be made to registered worker entitlement funds that are
subject to basic governance and disclosure obligations.
The International Labour Organization (ILO) has stated that
'Restrictions on [the] principle [of leaving the greatest possible autonomy to
organizations in their functioning and administration] should have the sole
objective of protecting the interests of members'.
To the extent the proposed provisions may engage with these
rights they do so only to protect the rights of workers by ensuring that their
money is properly managed and their interests protected.
The provisions support the basic governance and disclosure
requirements of the Bill that are designed to address potential conflicts of
interest, breaches of fiduciary duty and potential for coercive conduct that
were found by the Royal Commission into Trade Union Governance and Corruption
(Royal Commission) in examining the operation in Australia of worker
entitlement funds. As such, the amendment protects the interests of workers.
1.220
The minister's response provides a range of information about the scope
of the limitation on bargaining outcomes. In this respect, it is relevant to
the proportionality of the measure that it will still be possible to negotiate
clauses in enterprise agreements which require or permit payments to be made to
registered workers' entitlement funds, superannuation funds or charities.
However, prohibiting any term of an enterprise agreement that otherwise
requires or permits contributions for the benefit of an employee may still have
significant effects on voluntarily negotiated outcomes.
1.221
As discussed further below, there are a range of restrictions on
registered worker entitlement funds and who can operate them. Under the
proposed bill, registered organisations including unions are prohibited from
operating registered workers' entitlement funds and there are restrictions on
how funds can be spent. This means that, for example, even if an employer and
employees agreed through an enterprise agreement to set up an occupational
health and safety training fund to be administered and run by the relevant
union, this would not be permissible. It is unclear from the minister's
response how prohibiting this kind of voluntarily negotiated clause in general
is the least rights restrictive approach to achieving the stated objective.
Further, while the minister's response refers to ILO comments about when it may
be legitimate to limit particular rights, it does not address the specific
concerns raised by international monitoring bodies in relation to Australia's
restrictions on bargaining outcomes through prohibiting particular matters in
enterprise agreements (discussed at [1.213] above). In light of the concerns
raised by these international monitoring bodies as to the existing restrictions
on bargaining outcomes in Australia, it is likely that any amendments which
further restrict such matters would also raise concerns.
1.222
Finally, the minister's response outlined consultation which occurred with
worker entitlement funds and employee and employer organisations prior to
introduction. Consultation processes are relevant to an assessment of the
measure, and may assist in determining whether a limitation is the least rights
restrictive means of pursuing a legitimate objective on the available evidence.
However, the fact of consultation alone is not sufficient to address the human
rights concerns in relation to the measure.
Committee response
1.223
The committee thanks the minister for her response.
1.224
The International Labour Organization's Committee on Freedom of
Association has raised concerns in relation to Australia's restrictions on
bargaining outcomes through prohibiting particular matters in enterprise
agreements. The provisions introduced by the bill prohibiting terms of
industrial agreements that require or permit payments to worker entitlement
funds is a further restriction on bargaining outcomes.
1.225
The committee considers that, in the absence of additional information
addressing these concerns, prohibiting terms of industrial agreements that require
or permit payments to worker entitlement funds is likely to be incompatible
with the right to collectively bargain.
1.226
The committee therefore seeks further advice from the minister in
relation to the compatibility of the measure with the right to collectively
bargain, in particular any information in light of findings by relevant international
supervisory mechanisms.
Regulation of worker entitlement funds
1.227
Schedule 2 of the bill would require 'worker entitlement funds' to meet
requirements for registration and meet certain conditions relating to financial
management, board composition, disclosure and how money is spent. A 'worker
entitlement fund' is defined in proposed section 329HC of the Fair Work
(Registered Organisations) Act 2009 (Registered Organisations Act) as a
fund whose purposes include paying worker entitlements to members, dependents
or legal representatives of fund members or a fund prescribed by the minister.
1.228
Under proposed new section 329LA of the Registered Organisations Act a
'worker entitlement fund' will only be able to be operated by a corporation and
cannot be operated by a registered organisation (that is, a trade union or
employer organisation.) Under proposed sections 329JA-B of the Registered
Organisations Act it will be an offence to operate an unregistered fund and a
civil penalty provision for employers to contribute to such a fund.
Compatibility of the measure with
the right to freedom of association and the right to just and favourable
conditions at work
1.229
As described above, the interpretation of the right to freedom of
association and the right to just and favourable conditions of work is informed
by the ILO treaties.[185] ILO Convention 87 specifically protects the right of workers to autonomy of
union processes, organising their administration and activities and formulating
their own programs without interference.[186] Providing that registered organisations cannot administer 'worker entitlement
funds' and limiting the purposes for which such money may be used appears to
engage and limit these rights. However, the statement of compatibility does not
acknowledge this limitation so does not provide an assessment of whether the
limitation is permissible as a matter of international human rights law.[187]
1.230
The committee therefore requested the further advice of the minister as
to:
- whether the measure is aimed at pursuing a legitimate objective
for the purposes of international human rights law;
- how the measure is effective to achieve (that is, rationally
connected to) its stated objective; and
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective (including whether the measure is the least
rights restrictive way of achieving its stated objective).
Minister's response
1.231
The minister's response explains the scope of current provisions and
proposed amendments:
Current provisions
An ASIC class order currently exempts worker entitlement
funds from regulation under the Corporations Act 2001.
Contributions to 'approved worker entitlement funds' under
the Fringe Benefits Tax Assessment Act 1986 (FBTA Act 1986) are exempt
from fringe benefits tax. Funds can be approved if they meet certain minimum
criteria, largely concerned with how fund money can be spent. This imposes a
degree of indirect regulation on these funds.
Changes proposed through the Bill
The Bill will amend the Fair Work (Registered
Organisations) Act 2009 (RO Act) to insert new Part 3C of Chapter 11 to
apply governance, financial reporting and financial disclosure requirements to
worker entitlement funds. As noted by the Committee, Schedule 2 of the Bill
would require worker entitlement funds to meet requirements for registration
and meet certain conditions relating to financial management, board
composition, disclosure and how money is spent. These conditions include that a
worker entitlement fund will only be able to be operated by a corporation and
cannot be operated by a registered organisation (proposed new section 329LA
condition 2).
1.232
The minister also provides a range of information as to whether the
limitation on human rights imposed by the measure is permissible. In relation
to whether the measure is aimed at pursuing a legitimate objective for the
purposes of international human rights law, the minister's response states:
The objective of the Bill in relation to the administration
of worker entitlement funds and limiting the purposes for which worker
entitlement fund income and contributions can be used is to ensure that workers'
entitlements are managed responsibly and transparently and in their interests.
Funds will have to be run by trained professionals of good fame and character
and fund money will be restricted from being re-characterised and spent for
unauthorised purposes. These measures are intended to prohibit what the Royal
Commission found were substantial payments flowing out of worker entitlement
funds to other parties for purposes other than paying members.
1.233
This would appear to be a legitimate objective for the purposes of
international human rights law.
1.234
As to how the measure is effective to achieve the stated objective, the
minister's response states:
Requiring the registration of worker entitlement funds and
placing conditions on that registration are measures that are rationally
connected to the objective of ensuring that workers' entitlements are managed
responsibly and transparently in their interests.
Requiring a fund operator to be a constitutional corporation
is necessary to ensure that the provisions regulating such funds are valid. A
similar requirement applies to superannuation funds under the Superannuation
Industry (Supervision) Act 1993.
1.235
This information indicates that the regulation of worker entitlement
funds is likely to be rationally connected to the stated objective of the
measure.
1.236
The requirement that registered workers' entitlement funds cannot be
operated by a registered organisation such as a trade union or employers'
organisation raises questions in relation to the proportionality of the
limitation. In this respect the minister's response explains that:
Requiring that a fund operator cannot be an organisation is
designed to prevent conflicts of interest for worker entitlement funds that also
make substantial payments to those organisations for purposes other than paying
members worker entitlements.
In this respect, the Royal Commission stated that:
The very substantial revenue flows
to unions generate significant conflicts of interest and potential breaches of
fiduciary duty on the part of unions and union officials negotiating enterprise
agreements ... In short, the union and union officials owe a duty to act in the
interests of union member employees when negotiating enterprise agreements. At
the same time, there is a significant potential and incentive for the union to
act in its own interests to generate revenue.
The worker entitlement fund, Incolink, provides an example of
the substantial revenue that flows to unions and employer groups. Between 2011
and 2015, the Construction, Forestry, Mining and Energy Union (CFMEU), the
Master Builders Association of Victoria and the Plumbing Joint Training Fund
together received over $85 million from Incolink. These organisations are all
represented on the board of lncolink.
In addition, none of the existing worker entitlement funds
that are approved under the FBTA Act 1986 are operated by registered
organisations; most worker entitlement funds are run by corporations with a mix
of representatives from employer and employee associations on their boards. The
Bill does not alter this position. Officers of registered organisations can
still sit on the board of worker entitlement funds.
1.237
The minister's response articulates that there is a potential for conflicts
of interest in relation to the administration of such funds as well as the
potentially large sums of money involved. It is also relevant to the
proportionality of the measure that none of the funds registered under the
existing FBTA Act are operated by registered organisations. However, it is
unclear whether there are funds that are not registered under the FBTA Act
which are currently administered by registered organisations. Accordingly,
based on the information provided there is some uncertainty as to the potential
impact of the measure. The measure may still therefore be a significant
limitation on the right for a union to organise its internal affairs and
formulate its own program. For example, notwithstanding the issues raised in
the minister's response, it may be the preference of some union members that
money paid for their benefit is administered by their union.
1.238
The minister's response further states, in relation to whether the
measure is proportionate to achieve its stated objective, that:
The Bill also retains the existing legal limits on how
contributions and income of a fund can be spent under the FBTA Act 1986.
To the extent that these measures may limit human rights, any
limitation is reasonable and proportionate in achieving the objectives of the
Bill. Commensurate with this, the measures are the least rights restrictive as
they do not prevent contributions to worker entitlement funds but provide
appropriate governance and transparency to ensure that workers' entitlements
are managed responsibly and transparently in their interests. They also take
into account the feedback provided by funds during consultation, including to
allow funds to use income to pay for training and welfare services, subject to
appropriate criteria, and the provision of a separate regulatory scheme for
single employer worker entitlement funds.
1.239
While noting that contributions will still be able to be made to
registered workers' entitlement funds, it is unclear from the information
provided that this necessarily means that the measure is the least rights
restrictive approach. It is unclear from the response whether there are any
other reasonably available less rights restrictive alternatives to prohibiting
registered organisations from operating such funds in general. Accordingly, it
is uncertain whether the measure constitutes a proportionate limitation on the
right to freedom of association.
Committee response
1.240
The committee thanks the minister for her response and has
concluded its examination of this issue.
1.241
Based on the information provided and the above analysis, the
committee is unable to conclude that the measure is a proportionate limitation
on the right to freedom of association and the right to just and favourable
conditions at work.
Prohibiting terms of industrial instruments requiring payments to election
funds
1.242
Schedule 3 of the bill would amend the Fair Work Act to prohibit any
term of a modern award, enterprise agreement or contract of employment
permitting or requiring employee contributions to an election fund.[188]
Compatibility of the measure with the right to freedom
of association and the right to just and favourable conditions at work
1.243
As set out above, the right to freedom of association includes the right
to collectively bargain without unreasonable and disproportionate interference
from the state. Prohibiting the inclusion of particular terms in an enterprise
agreement interferes with the outcomes of the bargaining process. Accordingly,
the initial analysis stated that the measure engages and limits the right to
just and favourable conditions of work and the right to collectively bargain as
an aspect of the right to freedom of association. The statement of
compatibility acknowledges that the measure engages the right to negotiate
terms and conditions of employment voluntarily.[189] However, the statement of compatibility appears to indicate that the limitation
is permissible.
1.244
The statement of compatibility identifies one objective of the measure
as being to 'remove any legal or practical compulsion on an employee to
contribute to election funds'.[190] This appears to be a description of what the measure does rather than
articulating the pressing or substantial concern the measure addresses as
required to constitute a legitimate objective for the purposes of international
human rights law. The statement of compatibility identifies a second objective
as addressing 'the possibility of contributions made in accordance with a
relevant instrument being used to avoid the intent of the prohibition on
organisations using their resources to favour a particular candidate'. While
this could be capable of constituting a legitimate objective, limited
explanation or reasoning is provided as to why this objective is important.
Further, in relation to whether the measure is rationally connected (that is,
effective to achieve) and proportionate to the stated objectives, the statement
of compatibility provides no reasoning or evidence and only asserts that the
measure 'is reasonable, necessary and proportionate'.[191]
1.245
The committee therefore requested the further advice of the minister as
to:
- whether there is reasoning or evidence that establishes that the
stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective;
-
how the measure is effective to achieve (that is, rationally
connected to) its stated objective; and
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective (including whether the measure is the least
rights restrictive way of achieving its stated objective).
Minister's response
1.246
The minister's response provides the following information about the
proposed amendments:
Current provisions
There are currently no provisions in the FW Act or RO Act that
deal with terms of industrial instruments requiring or permitting employees to
pay into election funds. This is despite the fact that section 190 of the RO
Act prohibits an organisation from using its resources for the purposes of the
election of a particular candidate. Because election funds are structurally
separate from the organisation, they are not captured by this provision.
Changes proposed through the Bill
Schedule 3 of the Bill would amend section 194 of the FW Act
to prohibit any term of an enterprise agreement or contract of employment
requiring or permitting employee contributions for a regulated election
purpose.
Schedule 3 would also amend Part 2-9 of the FW Act to provide
that any term of a contract of employment requiring or permitting payments for
a regulated election purpose will have no effect.
A 'regulated election purpose' is one that includes the
purpose of funding, supporting or promoting the election of candidates for
election to office in an industrial association.
1.247
The minister's response provided some further information about whether
the limitation on human rights was permissible. In relation to whether the
measure addresses a substantial or pressing concern, the minister's response
explains:
Election funds are established to fund election campaigns for
office within registered organisations and are regularly sourced from
contributions from employees of such organisations. These funds are usually
managed by one or more individuals who hold elected office within the
organisation. They are not established in the interests of workers who are
subject to the collective agreement but rather the interests of officials of
the bargaining representative. The Royal Commission found that such
arrangements unfairly disadvantage candidates who are not already in office and
have been misused by officials controlling the funds where there are no
contested elections. The Royal Commission also found a lack of oversight of
election funds, with information about revenue and expenditure sometimes hidden,
or not kept at all.
The amendments remove any legal or practical compulsion on
employees to contribute to a particular election fund. They ensure employees
have a choice about whether to contribute to the particular fund.
1.248
Based on this information provided, ensuring that non-incumbent
candidates for elected union positions are not disadvantaged and that employees
have a free choice about whether to contribute to a particular fund in the
particular circumstances, would appear to constitute legitimate objectives for
the purposes of international human rights law. The measures would also appear
to be rationally connected to these objectives.
1.249
In relation to whether the measure is reasonable and proportionate, the
minister's response states that registered organisation employees will still be
able to make genuine contributions, voluntarily and independently of an
industrial instrument. On balance, this would appear to be a proportionate
limitation on bargaining outcomes.
Committee response
1.250
The committee thanks the minister for her response and has
concluded its examination of this issue.
1.251
The committee notes that the measure appears to be compatible
with the right to freedom of association and the right to just and favourable
conditions of work.
Prohibiting any action with the intent to coerce a person or employer to
pay amounts to a particular fund
1.252
Schedule 4 of the bill would introduce a civil penalty into section 355A
of the Fair Work Act prohibiting a person from organising, taking or
threatening to take any action, other than protected industrial action, with
the intent to coerce a person to pay amounts to a particular worker entitlement
fund, super fund, training fund, welfare fund or employee insurance scheme.[192]
Compatibility of the measure with
the right to freedom of association
1.253
The right to strike is protected as an aspect of the right to freedom of
association and the right to form and join trade unions under article 8 of
ICESCR. The right to strike, however, is not absolute and may be limited in certain
circumstances.
1.254
By prohibiting action (other than protected industrial action) intended
to coerce a person to pay amounts into a particular fund, the initial analysis
assessed that the measure further engages and limits the right to strike. This
is because it may impose an additional penalty or disincentive to taking
unprotected industrial action with the intent of influencing the conduct of an
employer. The existing restrictions on taking industrial action under
Australian domestic law have been consistently criticised by international
supervisory mechanisms as going beyond what is permissible.[193] While the statement of
compatibility acknowledges that the measure engages work-related rights it does
not expressly acknowledge that the right to strike is an aspect of the right to
freedom of association.
1.255
Beyond providing a description of the measure, the statement of
compatibility does not identify the legitimate objective of the measure. While
the statement of compatibility appears to argue that the measure in fact
supports freedom of association and human rights, it provides no explanation of
the reasoning for this.[194] The statement of compatibility therefore does not meet the standards outlined
in the committee's Guidance Note 1, which require that where a
limitation on a right is proposed the statement of compatibility provide a
reasoned and evidence-based assessment of how the measure pursues a legitimate
objective, is rationally connected to that objective, and is proportionate.
1.256
The committee therefore requested the further advice of the minister as
to:
- whether the measure is aimed at achieving a legitimate objective
for the purposes of international human rights law;
- how the measure is effective to achieve (that is, rationally
connected to) that objective; and
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective (including any relevant safeguards and whether
the measure is the least rights restrictive way of achieving its stated
objective).
Minister's response
1.257
The minister's response provides the following information about the
proposed amendments:
Current provisions
Part 3-1 of the FW Act provides for general workplace
protections. It contains specific prohibitions against coercive behaviour in
relation to workplace rights (section 343) and industrial activities (348).
However, the Part does not specifically prohibit coercive action in relation to
the making [of] payments to certain funds, particularly where such action
occurs outside of the enterprise bargaining process. These funds include
superannuation funds, training and welfare funds, worker entitlement funds and
insurance arrangements and are collectively referred to by the Royal Commission
as 'worker benefit funds'.
Changes proposed through the Bill
Schedule 4 of the Bill would amend Part 3-1 of the FW Act to
insert a new section 355A to prohibit a person from taking coercive action in
relation to the making of payments to a particular worker benefit fund. This
would fix an existing gap in the Act, which prohibits coercion in relation to a
wide range of other conduct, but not in relation to contributions to funds.
1.258
In relation to the current law, the minister's response states that
'compelling contributions to a particular worker benefit fund infringes basic
principles of freedom of association and, by prohibiting mandatory
contributions, the amendment is in fact promoting human rights'. However, the
response does not specifically explain how 'compelling' a contribution through,
for example, protest or strike action would 'infringe' principles of freedom of
association or promote human rights. As noted in the initial analysis, the
measure, by prohibiting action (other than protected industrial action)
intended to influence or 'coerce' a person to pay amounts into a particular
fund, the measure further engages and limits the right to strike. This is
because it may impose an additional penalty or disincentive to taking
unprotected industrial action with the intent of influencing the conduct of an
employer.
1.259
In relation to whether the measure imposes permissible limitations on
the right to strike, the minister's response states that the measure pursues the
'legitimate objective of reducing the potential for coercive behaviour outside
the enterprise bargaining process, for example in side deals'. In this respect,
the minister's response discusses examples of pressure being applied to
employers, potential conflicts of interest and the findings of the Heydon Royal
Commission. While not articulated in this way in the minister's response, it
may be that the measure pursues the objective of providing protection for
employers or other people from particular forms of action. To the extent that
the measure is aimed at protecting the rights and freedoms of others this is capable
of constituting a legitimate objective for the purposes of international human
rights law.
1.260
The minister's response further notes that 'the Bill does not alter the
circumstances in which industrial action will be considered protected
industrial action, or the consequences provided for failures to comply with
Part 3-3 of the FW Act, dealing with industrial action'. However, as set out
above, the existing restrictions on taking industrial action under Australian
domestic law have been consistently criticised by international supervisory
mechanisms as going beyond what is permissible.[195] Such findings call into
serious question whether any further restrictions on the right to strike, such
as this one, are permissible. While the minister's response identifies that the
measure addresses a gap in current restrictions, it does not explain how such
restrictions are proportionate in view of the stated objective including
whether they represent the least rights restrictive approach. Accordingly,
based on the information available, the measure does not appear to be a
proportionate limitation on the right to strike as an aspect of the right to
freedom of association.
Committee response
1.261
The committee thanks the minister for her response and has
concluded its examination of this issue.
1.262
Based on the information available and the above analysis, the
measure is likely to be incompatible with the right to freedom of association.
Compatibility of the measure with
the right to freedom of assembly and expression
1.263
The right to freedom of assembly and the right to freedom of expression
are protected by articles 19 and 21 of the ICCPR. The right to freedom of
assembly and the right to freedom of expression may be limited for certain
prescribed purposes. That is, that the limitation is necessary to respect the
rights of others, to protect national security, public safety, public order,
public health or morals. Additionally, such limitations must be prescribed by
law, reasonable, necessary and proportionate to achieving the prescribed
purpose.
1.264
The initial analysis stated that it appears that the measure may extend
to prohibiting forms of expression or assembly. As such, it may engage and
limit the right to freedom of expression and assembly. The prohibition on forms
of protest action appears to be potentially quite broad. This issue was not
addressed in the statement of compatibility and as such it is unclear whether
the measure is compatible with these rights.
1.265
The committee therefore sought the advice of the minister as to:
- the scope of any restriction on the right to freedom of
expression and assembly;
- whether the measure is aimed at achieving a legitimate objective
for the purposes of international human rights law;
- how the measure is effective to achieve (that is, rationally connected
to) its stated objective; and
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective (including whether the measure is sufficiently
circumscribed, any relevant safeguards and whether the measure is the least
rights restrictive way of achieving its stated objective).
Minister's response
1.266
In relation to the right to freedom of assembly and the right to freedom
of expression, the minister's response states:
The Committee is also concerned that the measure circumscribes
the right to freedom of expression as set out in Article 19 of the
International Covenant on Civil and Political Rights (ICCPR) and the right of
peaceful assembly set out in Article 21 of the ICCPR. It is not clear how the
relevant rights are engaged as the measure does not interfere with an
individual's right to hold opinions without interference, the right to freedom
of expression or the freedom to seek, receive and impart information and ideas
of any kind or the right of peaceful assembly. In any event, the amendment
pursues the legitimate objective of ensuring that a person cannot coerce
another person to make payments into certain worker benefit funds and is
reasonable and proportionate.
1.267
The particular concern articulated in the initial human rights analysis
was that the prohibited forms of action may extend to forms of expression and
assembly. For example, protest activities outside of a workplace or a boycott
of goods that is aimed at influencing or 'coercing' a person to make payments
into a particular fund. It is noted in this respect that the right of freedom
of expression extends to the expression of ideas through a range of conduct
including speech and public protest. It would have been useful if the
minister's response provided an explanation of why she does not consider that
these rights were engaged and limited. There is also a question about the
breadth of the provision, noting it could potentially apply broadly beyond the
employer-employee relationship. As such, it is unclear whether the breadth of
this provision may be overly broad with respect to an objective, for example,
of protecting the rights and freedoms of other. As the information provided to
the committee does not include a substantive assessment as to whether any
limitation on the right to freedom of expression and assembly is permissible,
it is not possible to conclude that the measure is proportionate.
Committee response
1.268
The committee thanks the minister for her response and has
concluded its examination of this issue.
1.269
Based on the information provided, it is not possible to conclude
that the measure is compatible with the right to freedom of assembly and the
right to freedom of expression.
1.270
The committee invites any further comments from the minister in
relation to the above.
Bills not raising human rights
concerns
1.271
Of the bills introduced into the Parliament between 4 and 7 December,
the following did not raise human rights concerns (this may be because the bill
does not engage or promotes human rights, and/or permissibly limits human
rights):
- Aboriginal Land Rights (Northern Territory) Amendment Bill 2017;
- Australian Capital Territory (Planning and Land Management)
Amendment Bill 2017;
- Broadcasting Legislation Amendment (Digital Radio) Bill 2017;
- Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017;
- Communications Legislation Amendment (Regional and Small
Publishers Innovation Fund) Bill 2017;
- Copyright Amendment (Service Providers) Bill 2017;
-
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2017;
- Family Law Amendment (Family Violence and Other Measures) Bill
2017;
- Great Barrier Reef Marine Park Amendment (Authority Governance
and Other Matters) Bill 2017;
-
Home Affairs and Integrity Agencies Legislation Amendment Bill
2017;
- Security of Critical Infrastructure Bill 2017;
-
Security of Critical Infrastructure (Consequential and
Transitional Provisions) Bill 2017; and
- Treasury Laws Amendment (Enhancing Whistleblower Protections)
Bill 2017.
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