Concluded matters

2.1        This chapter considers the responses of legislation proponents to matters raised previously by the committee. The committee has concluded its examination of these matters on the basis of the responses received.

2.2        Correspondence relating to these matters is included at Appendix 3.

Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment Instrument 2017 (No. 4) [F2017L01678]

Purpose	Amends the Anti-Money Laundering and Counter-Terrorism Financing Rules 2007 (No. 1) to allow the AUSTRAC CEO to exempt reporting entities from particular provisions of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 where a requesting officer of an eligible agency reasonably believes that providing a designated service to a customer would assist the investigation of a serious offence
Portfolio	Attorney-General
Authorising legislation	Anti-Money Laundering and Counter-Terrorism Financing Act 2006
Last day to disallow	15 sitting days after tabling (tabled Senate and House of Representatives on 5 February 2018)
Right	Fair trial and fair hearing (see Appendix 2)
Previous report	3 of 2018
Status	Concluded examination

Background

2.3        The committee first reported on the instrument in its Report 3 of 2018, and requested a response from the Attorney-General by 11 April 2018.[1]

2.4        A response from the Minister for Law Enforcement and Cyber Security was received on 27 April 2018. The response is discussed below and is reproduced in full at Appendix 3.

Exemptions for reporting entities from compliance with obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006

2.5        The instrument allows the CEO of the Australian Transaction Reports and Analysis Centre (AUSTRAC) to exempt reporting entities from certain obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act).

2.6        Section 75.2 of the instrument provides that, if a requesting officer[2] of an eligible agency[3] reasonably believes that providing a designated service to a customer would assist the investigation of a serious offence,[4] the officer may request the AUSTRAC CEO to exempt specified reporting entities from certain obligations under the AML/CTF Act.[5]

2.7        Under the AML/CTF Act, 'designated services' include (among other things) dealings with accounts by financial institutions, the administration of trusts, the supply of goods by way of lease or hire-purchase, and the guarantee of loans.[6] A reporting entity is any person that provides a designated service.[7]

Compatibility of the measure with the right to a fair trial and fair hearing

2.8        The right to a fair trial and fair hearing is protected by article 14 of the International Covenant on Civil and Political Rights (ICCPR).  Additional guarantees in the determination of a criminal charge include the right to be presumed innocent and the right not to incriminate oneself.^[8] The right also encompasses notions of the fair administration of justice and prohibits investigatory techniques that incite individuals to commit a criminal offence.[9]

2.9        The initial human rights analysis stated that an exemption granted by the AUSTRAC CEO may engage the right to a fair trial in this respect. This was because it was unclear whether exempting reporting entities from compliance with obligations under the AML/CTF Act could permit those entities (on behalf of a law enforcement officer) to encourage or incite an individual to commit a criminal offence, or to provide incriminating information that might later be relied upon in criminal proceedings. That is, it was unclear whether the exemption could allow conduct which rises to the level of entrapment for the purposes of international human rights law which would constitute a limitation on the right to a fair trial.[10]

2.10        Limitations on human rights may be permissible where the measure pursues a legitimate objective, is effective to achieve (that is, rationally connected to) that objective, and is a proportionate means of achieving that objective.

2.11        The statement of compatibility for the instrument does not identify that the right to a fair trial may be engaged and limited and does not explain whether an exemption granted by the AUSTRAC CEO could be used to incite or encourage the commission of an offence.[11] Accordingly, the statement of compatibility does not provide a substantive assessment of whether any limitation on the right to a fair hearing and a fair trial would be permissible.

2.12        However, in relation to the objective of the measure, the explanatory statement nevertheless states:

AUSTRAC is aware of instances when law enforcement enquiries with reporting entities about the activities of certain customers have adversely affected the progress of related law enforcement investigations.

The issue for law enforcement arises when reporting entities undertake actions, in line with their obligations under the AML/CTF Act, which have the effect of alerting customers to possible closer scrutiny of their financial transactions. Customers then cease their activities with the reporting entity, thus limiting the ability of law enforcement officers to investigate the financial transactions.

A temporary exemption from certain AML/CTF Act obligations is needed in circumstances where actions taken by reporting entities, in line with these AML/CTF obligations, could undermine invstigations by law enforcment into certain customers of the reporting entities.[12]

2.13        Ensuring the effective investigation of serious offences is likely to constitute a legitimate objective for the purposes of international human rights law. 

2.14        However, it was unclear from the information provided whether the measure is rationally connected and proportionate to this objective. For example, in relation to whether the measure is rationally connected, it was unclear how compliance with the specific obligations listed in section 75.3 would operate to undermine an investigation.

2.15        In relation to the proportionality of the measure, it was unclear whether there are adequate and effective safeguards to ensure that reporting entities (on behalf of law enforcement officials or otherwise) are not able to incite or encourage the commission of an offence, or to ensure that evidence obtained by enticement is not relied upon in criminal or civil proceedings.

2.16           Accordingly, the committee requested advice as to whether the measure is compatible with the right to a fair trial and fair hearing including:

• whether an exemption granted by the AUSTRAC CEO could permit law enforcement officers (acting through reporting entities) to incite or encourage the commission of an offence (including whether there are any safeguards in place);
• if the right to a fair trial and fair hearing may be limited by the measure:
• how the measure is effective to achieve (that is, rationally connected to) its stated objectives; and
• whether any limitation is a reasonable and proportionate means of achieving the stated objective (including whether there are adequate and effective safeguards in place, such as, to ensure that law enforcement officers are not able to incite or encourage the commission of an offence, or to rely on evidence that has been improperly obtained in criminal proceedings).

Minister's response

2.17        The minister's response explains the scope of obligations imposed on reporting entities under the AML/CTF Act as including:

• Identification and verification. Reporting entities must identify their customers, and verify those customers’ identity before providing a designated service.
• Developing and maintaining an AML/CTF Program. Reporting entities must have and comply with anti-money laundering and counter-terrorism financing programs (AML/CTF programs), which are designed to identify, mitigate and manage the money laundering or terrorist financing (ML/TF) risks a reporting entity may reasonably face in providing a designated service.
• Ongoing customer due diligence. As part of its AML/CTF Program, reporting entities are required to have in place appropriate systems and controls to determine whether additional customer information should be collected and/or verified on an ongoing basis to ensure that the reporting entity holds up-to-date information about its customers. This process is known as 'ongoing customer due diligence' (OCDD). OCDD ensures customers are monitored on an ongoing basis to identify, mitigate and manage any ML/TF risk posed by providing designated services. The decision to apply the OCDD process to a particular customer depends on the customer's level of assessed ML/TF risk.
• Enhanced customer due diligence. As part of OCDD, reporting entities are also required to implement a transaction monitoring program and develop an 'enhanced customer due diligence' (ECDD) program. Where a reporting entity determines that the ML/TF or other serious crime risk associated with dealing with a certain customer is high, it is required to implement a range of ECDD measures. These measures may include:
• seeking further information from the customer to clarify or update existing information, obtain further information, or clarify the nature of the customer's ongoing business with the reporting entity;
• undertaking more detailed analysis of the customer's information and beneficial owner information, including, where appropriate, taking reasonable measures to identify the source of wealth and source of funds for the customer and each beneficial owner; and
• conducting further analysis and monitoring of the customer’s transactions, including the purpose or nature of specific transactions, and the expected nature and level of transaction behaviour, including future transactions.

2.18        The minister's response further sets out how the application of these obligations may cause challenges in the context of an investigation of a customer for a particular offence:

An issue arises where, as a result of law enforcement enquiries, a reporting entity forms a suspicion that a customer or their account is involved in or is being used to facilitate ML/TF or other serious crimes. The reporting entity is then obliged to take action in line with its OCDD/ECDD obligations under the AML/CTF Act. These actions may result in the customer being tipped-off to the fact that either they personally or their financial transactions have been flagged as suspicious and are likely under enhanced scrutiny. These customers often decide to cease their activities with the reporting entity, thereby limiting the ability of law enforcement agencies to continue to investigate and follow the financial transactions.

The amendments made by the Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment Instrument 2017 (No. 4) (the Amendment Instrument) are intended to address this issue. The Amendment Instrument may provide reporting entities with assurance that they will not be in breach of their obligations under the AML/CTF Act if, after being alerted to the high-risk nature of a customer following law enforcement enquiries and/or at the request of law enforcement agencies, the reporting entities refrain from conducting any additional OCDD/ECDD queries and continue to provide that customer with designated services to avoid ‘tipping off’ the customer whilst investigation of their financial transactions is ongoing.

The Amendment Instrument also exempts reporting entities from a number of provisions in Part 12—Offences of the AML/CTF Act. The exemption from these provisions addresses a situation where, as a result of law enforcement enquiries, a reporting entity is made aware that a customer is not who they claim to be. If the reporting entity were to continue to provide that person with a designated service, they could potentially be in breach of sections 136 (false or misleading information), 137 (producing false or misleading documents), 138 (false documents), 139 (providing a designated service using a false customer name or customer anonymity).

Reporting entities are also exempted from section 142 of the AML/CTF Act (conducting transactions so as to avoid reporting requirements relating to threshold transactions). This is necessary to ensure that they do not commit an offence when conducting transactions that they have reason to believe, following law enforcement enquiries, are likely to have been deliberately structured to avoid giving rise to a threshold transaction that would otherwise need to have been reported under section 43 of the AML/CTF Act.

2.19        In relation to whether the measures could permit law enforcement officers (acting through reporting entities) to incite or encourage the commission of an offence, the minister's response states:

The Committee's report notes that the right to a fair trial, which is guaranteed by article 14 of the International Covenant on Civil and Political Rights (ICCPR), also encompasses notions of the fair administration of justice and prohibits investigatory techniques that incite individuals to commit a criminal offence, citing the European Court of Human Rights (ECHR) cases of Ramanauskas v. Lithuania and Teixeira de Castro v. Portugal in support.

In Ramanauskas, the ECHR held that ‘incitement’ occurs where law enforcement officers (whether themselves or through persons acting on their instructions) do not confine themselves to investigating criminal activity in an essentially passive manner, but exert such an influence on the subject as to incite the commission of an offence that would otherwise not have been committed, in order to make it possible to establish the offence (that is, to provide evidence and institute a prosecution). In other words, the Court considered whether the offence would have been committed without the authorities’ involvement.

In Teixeira de Castro, the ECHR held that law enforcement officers had not confined themselves to investigating criminal activity in a passive manner because they had instigated the offence, and there was no evidence to suggest that without their intervention the offence would have been committed. The Court distinguished the officers’ actions from those of ordinary undercover agents, who may conceal their identities in order to obtain information and evidence about a crime without actively inciting its author to commit it. In reaching its conclusion, the Court emphasised that the authorities did not appear to have had any good reason to suspect Mr Teixeira de Castro of being a drug dealer: he had no criminal record and there was nothing to suggest that he had a predisposition to become involved in drug trafficking until he was approached by the police. The Court also found that there were no objective suspicions that Mr Teixeira de Castro had been involved in any criminal activity, nor was there any evidence to support the argument that he was predisposed to commit offences.

The principles outlined by the ECHR in Ramanauskas and Teixeira de Castro accord with the approach taken in Australian jurisdictions in similar cases dealing with ‘entrapment’. As noted by the High Court in Ridgeway v R, while Australia does not generally recognise entrapment as a defence to a criminal charge, the cases that have been decided “favour the view that relief should only be granted if the accused ‘otherwise would not have committed or would have been unlikely to commit [the offence]’”.

The purpose of the Amendment Instrument is to allow law enforcement agencies to maintain their visibility over criminal wealth and financial flows through suspect accounts that may otherwise be closed by reporting entities due to perceived ML/TF risks, or abandoned by customers that had been alerted to the fact that their transactions were subject to enhanced scrutiny. The Amendment Instrument makes no provision for, and is not capable of in any way authorising or affecting, the use of particular investigatory techniques by law enforcement agencies, nor does it provide any means for law enforcement to exert influence over a customer or incite them to commit an offence, that is not otherwise available to them within the existing confines of the law.

The mechanism provided for by the Amendment Instrument may only be exercised where an investigation into a serious offence has already commenced, i.e. where law enforcement already have sound reasons to suspect the persons prior involvement in particular unlawful activities. Further, it requires a requesting officer—of the requisite seniority—to provide a written statement to the AUSTRAC CEO confirming that they reasonably believe that the continued provision of a designated service(s) by a reporting entity would assist with the ongoing investigation of that offence. Accordingly, the relevant law enforcement agency must already have formed the relevant suspicion and commenced an investigation in order to make an application; the exemption mechanism cannot be utilised to establish criminal intent that had previously been absent.

It is also important to note that the Amendment Instrument has no coercive or compulsive effect. The exemption mechanism provides reporting entities with the comfort of regulatory relief in the event that they choose to assist and cooperate with a law enforcement investigation into a serious offence. The Amendment Instrument does not allow law enforcement agencies to compel a reporting entity to continue to provide a designated service to a customer; that will continue to be a decision made by each reporting entity in line with its risk-based AML/CTF systems and controls.

2.20        Accordingly, this information demonstrates that the measures will not enable reporting entities to encourage or incite the commission of an offence. The minister's response also outlined a number of further safeguards in relation to the operation of the measure which may assist to ensure its human rights compatibility including:

The measures are subject to appropriate safeguards, including requirements for applications to:

• be made by a senior official having reasonable grounds to believe that the exemption would assist in the investigation of a serious offence;
• include a declaration that the information provided in the application is true, accurate, and complete; and
• be signed off by the AUSTRAC CEO.

The operation of the exemption is also limited to a defined period of six months, starting on the date specified in the notice of the exemption decision, or until the eligible agency notifies both the AUSTRAC CEO and the exempted reporting entity or entities that the relevant investigation has ceased—whichever occurs first.

2.21        This means that, given the context of the measure and the existence of relevant safeguards, the measures are likely to be compatible with the right to a fair trial and fair hearing. 

Committee response

2.22        The committee thanks the minister for his response and has concluded its examination of this issue.

2.23        The committee notes that the measure is likely to be compatible with the right to a fair trial and fair hearing.

Crimes Amendment (National Disability Insurance Scheme – Worker Screening) Bill 2018

Purpose	Seeks to amend the Crimes Act 1914 to create exceptions to provisions that would prevent the disclosure of spent, quashed and pardoned convictions for persons who work or seek to work with people with disability in the NDIS
Portfolio	Social Services
Introduced	House of Representatives, 15 February 2018
Rights	Privacy; work; equality and non-discrimination (see Appendix 2)
Previous reports	3 & 4 of 2018
Status	Concluded examination

Background

2.24      The committee first reported on the bill in its Report 3 of 2018, and requested a response from the Minister for Social Services by 11 April 2018.[13] The minister's response to the committee's inquiries was received on
19 April 2018 and discussed in Report 4 of 2018.[14]

2.25      The bill passed both houses on 10 May 2018 and received Royal Assent on
22 May 2018.

2.26      The committee requested a further response from the minister by 23 May 2018. The response, received on 23 May, is discussed below and is reproduced in full at Appendix 3.

Permitting disclosure of spent, quashed and pardoned convictions in certain circumstances

2.27        The measures in the bill seek to create exceptions to Part VIIC of the Crimes Act 1914 (Crimes Act) with respect to persons who work, or seek to work, with persons with disability in the National Disability Insurance Scheme (NDIS). The effect of these exceptions would be that the spent, quashed and pardoned convictions of persons working or seeking to work with persons with disability under the NDIS may be disclosed to and by, and taken into account by, Commonwealth, State and Territory agencies for the purposes of assessing the person's suitability as a disability worker.

Compatibility of the measure with the right to privacy and the right to work

2.28        The initial human rights analysis stated that the measures engage the right to privacy and the right to work.[15] The right to privacy is engaged and limited by enabling the disclosure, and the taking into account, of information relating to a person's spent convictions, quashed convictions and convictions for which the person has been pardoned. The measure may also engage and limit the right to work insofar as individuals may be excluded from employment with the NDIS on the basis of their criminal record.

2.29        The statement of compatibility acknowledged that the measure engages and limits the right to privacy and the right to work. However, the statement also argues that these limitations are permissible as they are reasonable to protect people with disability.[16]

2.30        The initial analysis noted that the stated objective of the bill, namely to protect people with a disability from experiencing harm arising from unsafe support or services under the NDIS, was likely to be a legitimate objective for the purposes of international human rights law. Insofar as including information regarding spent, quashed and pardoned convictions may enable worker screening units to accurately assess a person's suitability as a disability support worker, the initial analysis also stated that the measure appears to be rationally connected to this objective.

2.31        However, the initial analysis also noted that questions arose as to whether the measures in the bill constituted a proportionate limitation on the right to privacy and right to work. In relation to the proportionality of the measure, the statement of compatibility explains:

The Bill provides access to a worker's detailed criminal history information to state-based worker screening units to enable a thorough risk-based worker screening assessment proportionate to determining the potential risk of harm to people with a disability receiving services under the NDIS. Further, the permission to access such information will be obtained from a worker applying for a worker screening access check as a part of the application process.[17]

2.32        While it was acknowledged that there may be circumstances where it would be appropriate to permit disclosure, or taking into account of, a person's criminal history to properly assess whether a person poses an unacceptable risk of harm, the initial analysis noted that questions arose as to whether the breadth of the measure in this bill is greater than necessary to achieve the stated objectives. This is because the measure appears to permit the disclosure, and the taking into account, of a person's entire criminal record, including minor convictions (for example, shoplifting), regardless of whether those criminal convictions bear any relevance to the person's capacity to perform the job or indicate that the person poses an unacceptable risk. This also raised questions as to whether there would be other, less rights restrictive alternatives available, such as only requiring disclosure of serious offences or offences that are relevant to a person's suitability as a disability worker.

2.33        Additionally, based on the information provided, it was unclear why it is necessary to permit the disclosure and the taking into account of spent and quashed convictions, and wrongful convictions for which the person has been pardoned. In the case of a wrongful conviction, for example, the person may be factually and legally innocent of the offence with which they were charged.

2.34        The initial analysis also noted that it was unclear whether there are sufficient safeguards to ensure that the measure is a proportionate limitation on human rights. In this respect, the statement of compatibility recognises that 'it is critical that NDIS worker screening does not unreasonably exclude offenders from working in the disability sector'.[18] The statement of compatibility further states:

The State and Territory-operated worker screening units will be required to have appropriately skilled staff to assess risks to people with disability, to comply with the principles of natural justice, and to comply with a nationally consistent risk assessment and decision-making framework, including considerations of the circumstances surrounding any offence. The Bill provides the means to gain the necessary information to assess such circumstances.

In this way, the Bill...supports a proportionate approach to safeguards that does not unduly prevent a person from choosing to work in the NDIS market, but ensures the risk of harm to people with disability is minimised, by excluding workers whose behavioural history indicates they pose a risk from certain services and supports.[19]

2.35        It was acknowledged in the initial analysis that the bill provides some safeguards in relation to the persons who may disclose criminal history information and take that information into account, and the persons to whom that information may be disclosed. However, the safeguards in the bill do not appear to limit the scope of the criminal history information that may be disclosed or taken into account.

2.36        Accordingly, the committee requested the advice of the minister as to whether the measures were proportionate to achieving the stated objectives of the bill (including whether the measures are the least rights restrictive way of achieving the objective and the existence of any safeguards).

Minister's first response

2.37      The minister's first response explained the importance of taking into account a person's entire criminal record when undertaking the NDIS worker screening, noting that it is important 'to ensure that the state and territory worker screening units tasked with making an informed assessment of an individual's suitability to work with people with disability can access and consider a complete picture of that person's criminal history'. In this respect, the minister explained the particular vulnerabilities of disabled persons that necessitate a more extensive criminal history check of potential NDIS workers:

People with disability are some of the most vulnerable within the Australian community. It is not only sexual or violent offences that the worker screening regime seeks to mitigate against. Individuals employed within the NDIS are in a position of trust and in many cases will have access to the person with disability's personal belongings, finances and medication. Minor offences may be relevant to a person's integrity and general trustworthiness. On that basis, it is appropriate to have awareness of the circumstances [...] surrounding even minor offences.

2.38      The minister's response further explained why a less rights restrictive approach, such as limiting the types of offences that could be disclosed, was not reasonably available:

Limiting the categories of offences that can be disclosed to worker screening units would create a risk that relevant information is not available to inform a decision by a worker screening unit and could undermine the value of an NDIS worker screening outcome as a source of information for people with disability and for employers. Inaccurate risk assessments may also be unfair to workers themselves.

...

While, as the Committee points out, a person whose conviction is quashed may be factually and legally innocent, there are a range of reasons that a conviction may be quashed or pardoned that might not be so black and white. This will not be known until the specific circumstances surrounding the pardoned or quashed conviction are considered by the worker screening unit, which is why they need access to such information as proposed in the Bill.

2.39      It was acknowledged that undertaking an accurate risk assessment is important and, as noted in the initial analysis, a detailed criminal history check of individuals would assist in ascertaining whether a person poses a risk. However, it was noted that international human rights jurisprudence has raised concerns that indiscriminate and open-ended disclosure of criminal record data may be incompatible with human rights where there are not adequate safeguards in place.[20] In this respect, the minister's response set out the safeguards that would be in place in order to ensure that the assessment of risk is undertaken in a proportionate manner:

Safeguards will be in place through a nationally consistent, risk-based approach that will provide state and territory worker screening units with a framework for considering a person's criminal history and patterns of behaviour over a lifetime that would indicate potential future risk to people with disability...

State and territory worker screening units will be required to undertake a rigorous process to determine the relevance of a particular event to whether an applicant for an NDIS Worker Screening Check poses a risk to people with disability. In particular, worker screening units are required to consider:

• the nature, gravity and circumstances of the event and how it [...] contributes to a pattern of behaviour that may be relevant to disability-related work;
• the length of time that has passed since the event occurred;
• the vulnerability of the victim at the time of the event and the person's relationship to the victim or position of authority over the victim at the time of the event;
• the person's criminal, misconduct and disciplinary, or other relevant history, including whether there is a pattern of concerning behaviour;
• the person's conduct since the event; and
• all other relevant circumstances in respect of their offending, misconduct or other relevant history, including attitudes towards offence or misconduct, and the impact on their eligibility to be engaged in disability-related work.

2.40        The minister further emphasised that a person's criminal history 'forms only one part of the analysis and risk assessment undertaken by a state or territory worker screening unit' and that a conviction for a minor offence, spent or quashed conviction would not necessarily prohibit that person from gaining employment with a provider within the NDIS.

2.41      These safeguards are important in determining whether the limitation on the right to privacy and right to work is proportionate. Notwithstanding the fact that the exception to the Crimes Act introduced by the bill creates a broad power to disclose, the safeguards in the worker screening process described in the further information provided by the minister appear to be capable of ensuring that persons with spent, pardoned or quashed criminal convictions that bear no relevance to their suitability as an NDIS worker would not be unduly prevented from being employed by the NDIS.

2.42      However, it was not clear from the information provided by the minister whether the safeguards outlined are matters of departmental policy or matters to be set out in legislation or in delegated legislation in the future. Departmental policies and procedures are less stringent than legislation, as policies can be removed, revoked or amended at any time, and are not subject to the same levels of scrutiny or accountability as when the policies are enshrined in legislation.

2.43      The bill additionally provides that, before regulations can prescribe the persons to whom the criminal convictions may be disclosed, the minister must be satisfied, relevantly, that the person or body complies with applicable laws relating to privacy, human rights and records management, complies with principles of natural justice, and has risk assessment frameworks and appropriately skilled staff to assess risks to the safety of a person with a disability.[21] However, further information from the minister would assist in determining whether the safeguards set out in the minister's response are sufficient for the purposes of international human rights law, including whether the safeguards will be prescribed by legislation or legislative instrument.

2.44      Another relevant factor in determining whether safeguards are sufficient includes whether there is a possibility of monitoring and access to review.[22] It was noted, for example, that Working with Children Check decisions are able to be reviewed by applicants through state and territory administrative appeals tribunals.[23] Further information from the minister as to whether (and, if so, by what mechanism) a decision relating to a person's suitability for employment following worker screening will be able to be reviewed would therefore be of assistance to determine whether the limitation on the right to privacy and right to work is proportionate.

2.45      The committee therefore sought further information from the minister as to the proposed safeguards in relation to the criminal history checks undertaken as part of the proposed NDIS Worker Screening Check, including:

• whether the risk assessment framework outlined in the minister's response will be set out in legislation or a legislative instrument; and
• whether a decision relating to a person's suitability for employment following worker screening is able to be reviewed.

Minister's second response

2.46      The minister's second response provides the following further information as to whether there are other, less rights restrictive measures available:

I note the Committee's Report queries whether there are less rights restrictive alternatives available, including whether only 'serious offences or offences that are relevant to a person's suitability as a disability worker' should be taken into account by worker screening units. In my previous letter to the Committee I noted that even less serious offences such as shoplifting are considered directly relevant to an individual's suitability as offences of this nature are directly relevant to an individual's trustworthiness and integrity. I also note the weight given to such lesser offences will be relevant in any state and territory worker screening unit decisions. My previous letter noted this is particularly relevant when individuals employed within the NDIS will have access to the person with disability's personal belongings, finances and medication.

I reiterate that state and territory worker screening units must be provided with sufficient information in order to effectively and diligently perform their functions and discharge their duties. Limiting the criminal history information available to the worker screening unit will diminish the effectiveness of their risk assessments and would fail to give due regard to the rights of persons with disability to be protected from workers who may pose an unacceptable risk of harm. I also reiterate that the fact that an individual may have a criminal conviction for a minor offence, which occurred a long time ago, only forms one part of the analysis and risk assessment undertaken by a state or territory worker screening unit and will not necessarily prevent that worker from gaining employment with an NDIS provider.

2.47      As to whether the risk assessment framework would be set out in legislation or a legislative instrument, the minister's second response explains that the NDIS worker screening regime is a shared responsibility of Commonwealth, state and territory governments. Relevantly, the Commonwealth is responsible for the broad national policy design and the states and territories are responsible for implementation and operational elements of the regime, including introducing legislation establishing the worker screening units responsible for screening NDIS workers.  The response explains that the elements of the policy making up the worker screening regime (including the risk assessment framework) are set out in an Intergovernmental Agreement (IGA) between the Commonwealth and states and territories.  The minister's response explains:

In relation to the risk assessment framework I referred to in my previous letter to the Committee, the framework is a national policy that will be agreed to by all participating jurisdictions. Consistent with the Council of Australian Government's division of responsibility for NDIS worker screening, states and territories will implement the risk assessment framework in their jurisdiction, including, where necessary, by amending existing legislation or introducing new legislation to give effect to the requirements under the IGA.

I note that before a state or territory worker screening unit can be prescribed for the purpose of performing NDIS worker screening checks, under the Bill the Minister needs to be satisfied that the worker screening unit:

• is required or permitted by or under a Commonwealth law, a state law or a territory law to obtain and deal with information about persons who work, or seek to work, with a person with disability; and
• complies with applicable Commonwealth law, state law or territory law relating to privacy, human rights and records management; and
• complies with the principles of natural justice; and
• has risk assessment frameworks and appropriately skilled staff to assess risks to the safety of a person with disability.

Accordingly, before a state or territory worker screening unit can be prescribed for the purpose of NDIS worker screening each jurisdiction must demonstrate it satisfies each of the above criteria, including importantly, the requirement to comply with the principles of natural justice.

2.48      This further information provided by the minister indicates that, if the risk assessment framework described by the minister in his first response is implemented in the manner set out in the minister's second response, it appears to be a sufficient safeguard for the purposes of international human rights law.  This is particularly in light of the requirement in the bill that, in order to prescribe the persons to whom the criminal convictions may be disclosed, the minister is required to be satisfied that the worker screening unit has risk assessment frameworks and appropriately skilled staff. However, noting that the specific safeguards are to be operationalised by the states and territories rather than through federal legislation, much will depend on the implementation of the NDIS worker screening scheme in practice. In this respect, it may be useful for there to be ongoing monitoring so as to ensure it is implemented in a manner compatible with human rights.

2.49      The minister's second response also identifies additional oversight of the operation of the scheme that will occur:

The Committee may wish to note that during the development of the Bill, my Department consulted with the Office of the Australian Information Commissioner. In addition to Ministerial oversight of the worker screening regime through the process of prescribing state or territory worker screening units, there will also be Parliamentary oversight and scrutiny of the worker screening regime through the Bill's requirement to table two written reports of the operation of the worker screening regime. The first report is to be tabled by 31 December 2019, and the second is to be tabled by 31 December 2022.

2.50      As to whether a decision relating to a person's suitability for employment following worker screening is able to be reviewed, the minister's second response explains:

As the Committee has noted, under the existing working with children checks regime, states and territories do provide review rights for those individuals who are subject to an adverse finding. The Committee may also like to note that under the IGA, state and territory worker screening units will agree to provide certain review and appeal rights to individual workers who may be subject to an adverse decision. This will enable an individual to seek review of decisions of state or territory worker screening units to:

• issue an exclusion (meaning a person cannot work in certain roles in the NDIS);
• revoke a clearance;
• apply an interim bar (or temporary exclusion); and
• suspend a clearance.

In such cases the rules of natural justice and procedural fairness will apply and where there is an intention to make an adverse decision states and territories, consistent with the IGA, will:

• disclose the reason the adverse decision is proposed, except where the NDIS worker screening unit is required under Commonwealth, state or territory law to refuse to disclose the information;
• allow the individual a reasonable opportunity to be heard; and
• consider the individual's response before finalising the decision.

2.51      The availability of review of adverse decisions is an important safeguard for the purposes of international human rights law. If the review mechanisms outlined in the IGA are available at a state and territory level this would support a conclusion that the measure appears to be a proportionate limitation on the right to privacy and right to work. 

Committee response

2.52        The committee thanks the minister for his response and has concluded its examination of this issue.

2.53        Based on the information provided, the safeguards identified by the minister in his responses appear to be capable of addressing the human rights concerns raised in relation to the disclosure of spent, pardoned and quashed convictions when undertaking NDIS worker screening. On this basis, the measure appears to be compatible with the right to privacy and right to work. 

2.54        However, noting that the safeguards are to be implemented by the states and territories rather than through federal legislation, the committee recommends that the implementation of the NDIS worker screening scheme be monitored by the Federal government so as to ensure it is implemented in a manner compatible with human rights.

Compatibility of the measure with the right to equality and non-discrimination

2.55        The right to equality and non-discrimination provides that everyone is entitled to enjoy their rights without discrimination of any kind, and that people are equal before the law and are entitled without discrimination to the equal and non‑discriminatory protection of the law.

2.56        'Discrimination' encompasses both measures that have a discriminatory intent (direct discrimination) and measures which have a discriminatory effect on the enjoyment of rights (indirect discrimination).[24] The UN Human Rights Committee has described indirect discrimination as 'a rule or measure that is neutral at face value or without intent to discriminate', which exclusively or disproportionately affects people with a particular personal attribute.[25]

2.57        The United Nations Human Rights Committee has not considered whether having a criminal record is a relevant personal attribute for the purposes of the prohibition on discrimination. However, relevantly, the European Court of Human Rights has interpreted non-discrimination on the grounds of 'other status' to include an obligation not to discriminate on the basis of a criminal record.[26] While this jurisprudence is not binding on Australia, the case law from the Court is useful in considering Australia's obligations under similar provisions in the International Covenant on Civil and Political Rights (ICCPR).[27] Providing that certain persons may disclose, and may take into account, information in relation to a person's criminal history information for the purposes of worker screening for the NDIS is likely to engage the right to equality and non-discrimination. This is because persons may be excluded from employment with the NDIS on the basis of their criminal record.

2.58        Under international human rights law, 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.[28]

2.59        The statement of compatibility did not recognise that the right to equality and non-discrimination is engaged by the measure, and so did not provide a substantive assessment of whether the measure constitutes a permissible limitation on that right. Accordingly, the committee requested the advice of the minister as to the compatibility of the measure with this right.

Minister's first response

2.60      In relation to whether the differential treatment is rationally connected and proportionate to the legitimate objective of the measure, the minister's first response explained:

The more comprehensive data collected as part of the NDIS Worker Screening Check reflects that there is a higher degree of risk an individual may pose to person[s] with disability in the course of delivering supports and services. Differential treatment of individuals as a result of considering criminal history as a part of a risk-based worker screening would not constitute unlawful discrimination as there is sufficient research and objective evidence that supports the consideration of this information as a basis for determining risk.

A complete criminal history, leads to a more accurate and reliable risk-based worker screening assessment which benefits both people with disability and the worker being screened. A comprehensive assessment is likely to be fairer to workers and reduce the chance of unjustified discrimination.

It should be noted that employers do not get access to any criminal history information under the proposed approach to NDIS Worker Screening. Employers will only have access to worker screening outcomes, once the approved Worker Screening Unit has made a determination.

Finally, I note that Working with Children Checks already operate in all jurisdictions with access to, and assessment of, full criminal history. People with disability deserve the same level of protection.

2.61      From the information provided, it appeared that the differential treatment is based on reasonable and objective criteria. However, for the same reasons discussed above in relation to the right to privacy and right to work, further information relating to the adequacy of the safeguards was required in order for the committee to complete its analysis as to whether the measure is compatible with the right to equality and non-discrimination.

2.62      Accordingly, the committee sought further information from the minister as to the proposed safeguards in relation to the criminal history checks undertaken as part of the proposed NDIS Worker Screening Check, including:

• whether the risk assessment framework outlined in the minister's response will be set out in legislation or legislative instrument; and
• whether a decision relating to a person's suitability for employment following worker screening is able to be reviewed.

Minister's second response

2.63      The minister's second response refers to his comments relating to the proposed risk assessment framework and whether the decisions will be reviewed, and provides the following additional information in relation to the right to equality and non-discrimination:

Any differential treatment as envisaged by the Act is reasonable and proportionate. This is because the legitimate objective of the Bill is to protect persons with disability from harm. I also hold this view because of the various criteria that must be satisfied before a worker screening unit can be prescribed under the legislation, including the safeguards which have been deliberately incorporated within the Bill and the broader NDIS worker screening framework. Furthermore, any differential treatment will not constitute unlawful discrimination on the basis that there is sufficient research and objective evidence that supports the relevance of criminal records as a basis for determining an individual's risk to vulnerable people.

I also note the measures in the Bill are consistent with many of the recommendations that emerged from the Royal Commission Working With Children Checks Report. This Report along with the other findings of the Royal Commission serves to highlight the importance of Commonwealth and state and territory governments working together to ensure that our most vulnerable community members are protected from harm. The measures in this Bill will help ensure that persons with disability within the NDIS are afforded the same level of protection as is currently provided under the Working With Children Checks regime.

The Bill requires that only a prescribed person or body can receive, use or disclose information for the purpose of worker screening.

2.64      For the reasons discussed above in relation to the right to privacy and right to work, it appears the safeguards in the bill would be sufficient for the purposes of international human rights law if implemented in the manner described by the minister. The information provided by the minister also further supports a conclusion that the differential treatment appears to be based on reasonable and objective criteria. On balance, the measure appears to be compatible with the right to equality and non-discrimination.

Committee response

2.65        The committee thanks the minister for his response and has concluded its examination of this issue.

2.66        Based on the information provided, on balance the measure appears to be compatible with the right to equality and non-discrimination. However, noting that the safeguards are to be implemented by the states and territories rather than through federal legislation, the committee recommends that the implementation of the NDIS worker screening scheme be monitored so as to ensure it is implemented in a manner compatible with human rights.

Extradition (El Salvador) Regulations 2017 [F2017L01581]

Extradition Legislation Amendment (2017 Measures No. 1) Regulations 2017[F2017L01575]

Purpose	The Extradition (El Salvador) Regulations 2017 seek to declare El Salvador as an 'extradition country' for the purposes of the Extradition Act 1988; the Extradition Legislation Amendment (2017 Measures No. 1) Regulations 2017 seek to remove reference to India from the list of extradition countries and also seek to amend certain definitions in the Extradition (Physical Protection of Nuclear Material) Regulations 1988 and the Extradition Regulations 1988
Portfolio	Attorney-General
Authorising legislation	Extradition Act 1988
Last day to disallow	[F2017L01581]: 15 sitting days after tabling (tabled Senate 7 December 2017) [F2017L01575]: 15 sitting days after tabling (tabled Senate 6 December 2017)
Rights	Prohibition against torture, cruel, inhuman and degrading treatment; life; fair hearing and fair trial; liberty; equality and non-discrimination (see Appendix 2)
Previous report	3 of 2018
Status	Concluded examination

Background

2.67        The committee first reported on the regulations in its Report 3 of 2018, and requested a response from the Attorney-General by 11 April 2018.[29]

2.68        The Attorney-General's response to the committee's inquiries was received on 27 April 2018. The response is discussed below and is reproduced in full at Appendix 3.

2.69        The committee has considered human rights issues raised by extradition regulations and the Extradition Act 1988 (the Extradition Act) on several previous occasions.[30] As the Extradition Act was legislated prior to the establishment of the committee, the scheme has never been required to be subject to a foundational human rights compatibility assessment by the relevant minister in accordance with the terms of the Human Rights (Parliamentary Scrutiny) Act 2011. The committee has previously stated that the Extradition Act would benefit from a comprehensive review from the relevant minister to assess its provisions against Australia's obligations under international human rights law.[31]

Extending the definition of 'extradition country' to include El Salvador

2.70        The Extradition Act provides the legislative basis for extradition in Australia. The Extradition Act allows Australia to receive extradition requests from countries that are declared by regulation to be an 'extradition country'[32] and for powers under that Act to be exercised in relation to such a request.

2.71        The Extradition (El Salvador) Regulations 2017 (the El Salvador regulations) seek to declare El Salvador as an 'extradition country' for the purposes of the Extradition Act. Previously, the extradition relationship between Australia and El Salvador was governed by the Treaty between the United Kingdom of Great Britain and Ireland and El Salvador for the Mutual Surrender of Fugitive Criminals 1883, which Australia inherited when it obtained independent status as a constitutional monarchy.

2.72        As the El Salvador regulations expand the operation of the Extradition Act, it is necessary to assess the human rights compatibility of the Extradition Act as a whole when considering these regulations.

2.73        The committee has previously considered that extradition pursuant to the Extradition Act may engage and limit a range of human rights, including the:

• prohibition against torture, cruel, inhuman and degrading treatment;
• right to life;
• right to a fair hearing and fair trial;
• right to liberty; and
• right to equality and non-discrimination.[33]

2.74        The statement of compatibility acknowledges that these rights are engaged by the El Salvador regulations.[34]

Compatibility of the measure with the prohibition against torture, cruel, inhuman and degrading treatment

2.75        Australia has obligations under article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment (CAT) not to extradite a person to another country where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. Australia's obligations under article 7 of the International Covenant on Civil and Political Rights (ICCPR) are broader in scope and not only prohibit torture but also prohibit 'cruel, inhuman or degrading treatment or punishment'. The United Nations (UN) Human Rights Committee has held that article 7 prohibits extradition of a person to a place where that person may be in danger of torture or cruel, inhuman or degrading treatment or punishment if extradited.[35]

2.76        The statement of compatibility states that the El Salvador regulations are consistent with a person's rights in respect of the prohibition against torture, cruel, inhuman and degrading treatment.[36] In this respect, the initial human rights analysis noted that section 22(3) of the Extradition Act prohibits the Attorney-General from determining that a person should be surrendered where there are substantial grounds for believing the person would be in danger of being tortured. This is an important safeguard for the purposes of international human rights law. However, there is no equivalent legal requirement in relation to the extradition of persons who may be in danger of cruel, inhuman or degrading treatment or punishment if returned. While there is a general discretion for the Attorney-General not to surrender a person, as stated in previous human rights assessments by the committee, ministerial discretion not to remove a person, rather than a legislative obligation, is not of itself a sufficient safeguard for the purposes of international human rights law.[37]

2.77        The committee sought the advice of the Attorney-General as to the adequacy of the safeguards in the El Salvador regulations and Extradition Act in relation to the extradition of persons who may be in danger of being subject to cruel, inhuman or degrading treatment or punishment upon return to the extradition country.

Attorney-General's response

2.78        The Attorney-General's response provides the following general information about the purpose of the extradition regime and of the importance of balancing extradition and human rights obligations:

Australia takes its human rights obligations very seriously and is committed to implementing them. Australia also has international obligations under bilateral and multilateral treaties to extradite persons in certain circumstances. Australia's extradition regime is an important part of our ability to combat domestic and transnational crimes, including serious offences such as terrorism, murder, drug trafficking and so forth. Many of these crimes impact upon community safety. Both of these sets of obligations are carefully considered when developing extradition arrangements. Human rights obligations are given a high priority and only limited where it is necessary to do so and proportionate to the objectives of ensuring Australia is not a safe haven for alleged criminals seeking to evade justice and ensuring Australia can pursue alleged criminals offshore.

2.79        As to the adequacy of the safeguards in the El Salvador regulations and the Extradition Act, the minister took issue with the view that discretionary safeguards (as opposed to legislative safeguards) would likely be insufficient for the purposes of international human rights law: 

I reiterate that the Government does not accept the Committee's position that in order for Australia's domestic system to be consistent with our human rights obligations there needs to be express statutory provisions implementing the obligation. The Government is committed to ensuring that Australia's domestic extradition regime under the Extradition Act 1988 (the Extradition Act) operates in a manner that is consistent with Australia's international law obligations, including international human rights law obligations. Under paragraph 22(3)(f) of the Extradition Act, the Attorney-General has a general discretion not to surrender a person. In exercising this discretion, an assessment of Australia's human rights obligations is undertaken on a case by case basis, which covers the matters identified by the Committee in its report. For these reasons I consider that the general discretion is an appropriate and adequate safeguard.

2.80        However, the concern does not centre on the absence of an express statutory provision implementing a human rights obligation per se.[38] Rather, the committee's inquiries relate to whether there are adequate safeguards included in the law so as to ensure compatibility with Australia's obligations under Article 3 of the CAT and Article 7 of the ICCPR not to extradite, deport, expel or otherwise remove a person from territory under its jurisdiction where there are substantial grounds for believing that there is a real risk of the person being subjected to torture or cruel, inhuman and degrading treatment and punishment. In this respect, it is noted that the UN Human Rights Committee has recently expressed concern that Australia's regulations on extradition do not appear to comply fully with the non-refoulement standard under the ICCPR.[39] In this context, discretionary safeguards alone may be insufficient for the purposes of international human rights law.

2.81        In relation to the adequacy of safeguards in the El Salvador regulations and Extradition Act, the Attorney-General's response states that section 22(3)(b) of the Extradition Act gives effect to Australia's obligations under the CAT insofar as it requires the minister to be satisfied that, on surrender, the person will not be subjected to torture of the kind falling within the scope of Article 1 of the CAT.  Similarly, the minister's response explains that even where a person has waived extradition, under paragraph 15B(3)(a) of the Extradition Act, the Attorney-General may only surrender the person if the Attorney-General does not have substantial grounds for believing that the person would be in danger of being subjected to torture, if surrendered. As stated in the initial analysis, this is an important safeguard for the purposes of international human rights law.

2.82        As to the absence of any explicit safeguard prohibiting extradition where persons may be subjected to cruel, inhuman or degrading treatment on surrender, the minister's response explains:

Subsection 22(3) does not require explicit reference to the matters in Article 7 of the International Covenant on Civil and Political Rights (ICCPR) in order to fulfil Australia's obligations under that Covenant. Under paragraph 22(3)(f) of the Extradition Act, the Attorney-General has a broad, general discretion whether to surrender a person to a foreign country. In accordance with the principle of procedural fairness, a person who is the subject of an extradition request may make submissions on any matter he or she wishes the Attorney-General to take into consideration when making a surrender determination. This can include submissions regarding compatibility of the person's surrender with Australia's obligations under Article 7 of the ICCPR. In addition, in the absence of such representations, if the Attorney-General's Department was aware of any issue or situation which might engage Australia's obligations under Article 7 of the ICCPR, the Department would bring this to the Attorney General's attention. For example, the Department's analysis may consider country information, reports prepared by non-government organisations and information provided through the diplomatic network.

As noted above, I consider that the general discretion is an appropriate and adequate safeguard.

2.83        The general discretion for the minister to determine whether to surrender a person under section 22(3)(f) of the Extradition Act may, in its practical application, capture the circumstance of persons who may be subject to cruel, inhuman or degrading treatment or punishment if extradited. However, the committee must assess the compatibility of the regulations and legislation as drafted, including whether there is scope for them to be implemented in ways that may create a risk that a person is extradited even where there are substantial grounds for believing that there is a real risk of cruel, inhuman and degrading treatment and punishment.[40] In this respect, unconstrained discretion is generally insufficient for human rights purposes to ensure that powers are exercised in a manner that is compatible with human rights. That is, it is possible that the Attorney-General may decline to exercise his or her discretion not to surrender someone even though there is a real risk of the person being subject to cruel, inhuman and degrading treatment and punishment. In particular, the UN Human Rights Committee has emphasised the importance of laws using precise criteria and not conferring unfettered discretion on those charged with their execution,[41] and that a legislative provision in very general terms does not, of itself, provide a satisfactory legal safeguard against arbitrary application.[42] 

2.84        In other words, the fewer legal safeguards that are available, the greater the risk of incompatibility with human rights. This is particularly the case for absolute rights, such as those contained in Article 7 of the ICCPR, which cannot be limited by states parties. Therefore, concerns remain regarding the fact that there is no express requirement in the Extradition Act requiring consideration be given to whether a person to be extradited may be subject to cruel, inhuman or degrading treatment or punishment.

Committee response

2.85        The committee thanks the Attorney-General for his response and has concluded its examination of this issue.

2.86        The committee considers that the general discretion in section 22(3)(f) of the Extradition Act for the minister to determine whether to surrender a person is not likely to be sufficient to ensure compatibility with Australia's obligations in article 7 of the ICCPR not to extradite persons who may be subject to cruel, inhuman or degrading treatment or punishment if extradited. 

2.87        The committee reiterates its previous comment that the Extradition Act would benefit from a comprehensive review from the relevant minister to assess its provisions against Australia's obligations under international human rights law.

Compatibility of the measure with the right to life

2.88        The right to life imposes an obligation on Australia to protect people from being killed by others or from identified risks. While the ICCPR does not completely prohibit the imposition of the death penalty, international law prohibits states which have abolished the death penalty (such as Australia) from exposing a person to the death penalty in another country. This prohibits Australia from deporting or extraditing a person to a country where that person may face the death penalty.[43] The Constitution of El Salvador retains the death penalty only for cases provided by military laws during an international state of war.[44]

2.89        The statement of compatibility states that the Extradition Act is 'consistent with the Australian Government's longstanding opposition to the death penalty', citing section 22(3) of the Extradition Act.[45] That section requires the Attorney-General not to surrender a person to a country where the offence is punishable by a penalty of death, unless the country gives an undertaking that the person will not be tried for the offence; if tried, the death penalty will not be imposed; or, if the death penalty is imposed it will not be carried out.  Further, if a person waives extradition in relation to one or more extradition offences, the Attorney-General may only determine that the person be surrendered if the Attorney-General is satisfied that, on surrender to the extradition country, there is no real risk that the death penalty will be carried out upon the person in relation to any offence.[46]

2.90        The statement of compatibility also notes that in practice undertakings relating to the death penalty in extradition cases have always been honoured.[47] It also notes that 'given the public nature of extradition, the Australian Government would most likely be aware of a breach of a death penalty undertaking' as Australia monitors Australian citizens who have been extradited through its consular network. Additionally, it states that it is open to the decision-maker to consider ongoing monitoring as a condition of the extradition and it is open to the person subject to the extradition request to challenge the decision.[48]

2.91        These are important safeguards that are relevant to the determination of whether the Extradition Act is compatible with the right to life. However, as noted in the initial human rights analysis, diplomatic assurances and undertakings may be breached, and section 22 of the Extradition Act does not require the Attorney-General to refuse extradition if there are substantial grounds to believe the person would be in danger of being subjected to the death penalty notwithstanding an undertaking. It also does not require any monitoring of the treatment of people extradited to ensure that assurances are being complied with.[49] The UN Human Rights Committee has also noted that diplomatic assurances alone may not be sufficient to eliminate the risk in circumstances where there is no mechanism for monitoring their enforcement or no means through which the assurances could be effectively implemented.[50]

2.92        The committee therefore sought the advice of the Attorney-General as to the adequacy of the safeguards in place to protect the right to life of persons who may be subject to the death penalty if extradited.

Attorney-General's response

2.93        In relation to the adequacy of safeguards in place to protect the right to life, the Attorney-General's response states:

There is no discretion in the Extradition Act that would allow a person to be surrendered in the absence of an undertaking from the requesting country that the death penalty will not be imposed.

The assessment of the risk that a person might be subjected to the death penalty occurs well prior to any request for an undertaking which would satisfy paragraph 22(3)(c). An extradition request raising potential death penalty issues is identified by the Attorney-General's Department at the earliest stages of the extradition process. If the Department held any concerns about the bona fides of a death penalty undertaking, the Department would recommend that the Attorney-General did not accept and progress the request. If a death penalty undertaking is requested, it would be requested and provided by a formal Government to Government communication. The Full Federal Court decision in McCrea v Minister for Justice and Customs [2005] FCAFC 180 sets out the test for an acceptable death penalty undertaking. The test requires that the Attorney-General be satisfied that 'the undertaking is one that, in the context of the system of law and government of the country seeking surrender, has the character of an undertaking by virtue of which the death penalty would not be carried out'.

2.94        It is acknowledged that diplomatic assurances and undertakings are a standard means by which a requesting state provides the assurances which the requested state considers necessary for its consent to extradition.[51] European Court of Human Rights jurisprudence has stated that such assurances carry a presumption of good faith, and it is appropriate to apply that presumption to a requesting state which has a long history of respect for democracy, human rights and the rule of law, and which has longstanding extradition arrangements with the requested state.[52] 

2.95        The Attorney-General's response further states that the department is not aware of any case in which the terms of a diplomatic undertaking issued to Australia in relation to the death penalty have been breached. It also explains that information regarding whether there had been any breaches of undertakings is reported to parliament annually in the Attorney-General's department annual report.[53] Whether there have been any reported breaches of undertakings is also relevant in determining whether such undertakings constitute a sufficient safeguard.[54]

2.96        However, European Court of Human Rights jurisprudence has also emphasised that the existence of assurances does not absolve states from their obligation to consider the practical application of those assurances.[55] As noted in the initial analysis, the UN Human Rights Committee has stated that diplomatic assurances may not be sufficient to eliminate the risk that the death penalty is imposed where there is no mechanism for monitoring the enforcement of assurances or no means through which the assurances could be effectively implemented.[56] Consistent with this, the UN Human Rights Committee has recently stated that such assurances must be 'credible and effective...against the imposition of the death penalty'.[57]  

2.97        In relation to monitoring of extradited Australian citizens, the Attorney-General's response explains:

The Department of Foreign Affairs and Trade (DFAT) is responsible for the provision of consular assistance to Australians encountering difficulties overseas. Where DFAT has been informed that an Australian citizen has been arrested, detained or imprisoned overseas, DFAT will write to the individual to offer consular assistance. On acceptance of the services offered, DFAT will provide details of local lawyers and interpreters, conduct welfare checks and, when necessary, take steps to ensure the detainee is treated fairly to the extent possible under the laws of the relevant country, given that consular assistance cannot override local laws.

2.98        The response further explains that Australia does not monitor the status of foreign nationals who have been extradited by Australia, as Australia has no consular right of access to non-nationals. The decision to monitor a foreign national is a matter for that person's country of citizenship. The Attorney-General's response explains that this is because attempts to monitor foreign nationals may be seen as infringing on the foreign country's sovereignty and criminal justice processes. However, with the consent of the person, Australia can inform consular authorities of their country of citizenship of their extradition to a third country.

2.99        Based on the information provided by the Attorney-General and in light of the international jurisprudence, requiring prior undertakings that the death penalty would not be imposed or implemented, and monitoring compliance with such undertakings, is likely to be consistent with Australia's obligations under Article 6(1) of the ICCPR.

2.100         However, if an undertaking is received but the Attorney-General or the department remain concerned that a death penalty undertaking would not be honoured, neither section 22(3) of the Extradition Act nor the El Salvador Regulations expressly prohibit the person from being extradited notwithstanding that risk. This can be contrasted with the circumstance where a person waives extradition pursuant to section 15A,[58] where the Attorney-General may only determine a person be surrendered if satisfied that there is no real risk that the death penalty will be carried out upon the person in relation to any offence.[59] In this respect, the Attorney-General's response explains that if the Attorney-General's Department held real concerns that a death penalty undertaking would not be honoured, it would not recommend that the Attorney-General progress the extradition request and, in the event the department or the Attorney-General became aware of a potential breach this would be raised with the country at the highest diplomatic levels. The minister's response also explains that if, notwithstanding the receipt of an undertaking, the Attorney-General considered that a real risk remained that the person would be subject to the death penalty, the Attorney-General could refuse extradition in the exercise of the general discretion under section 22(3)(f) of the Extradition Act. 

2.101         The policy to recommend to the Attorney-General that extradition not proceed if there are concerns a person may be subject to the death penalty notwithstanding receipt of an undertaking is also an important safeguard. However, it is noted that this policy requirement is less stringent than the protection of statutory safeguards. This is because such policies can be removed, revoked or amended at any time and are not required as a matter of law.  Further, as noted earlier, it is unlikely that the general discretion provision in section 22(3)(f) would constitute a sufficient safeguard. For this reason, the Extradition Act could be strengthened by legislating a requirement that a person not be extradited if, notwithstanding the receipt of an undertaking, there remains a real risk that the death penalty will be carried out upon the person.

Committee response

2.102        The committee thanks the Attorney-General for his response and has concluded its examination of this issue.

2.103        Based on the information provided by the Attorney-General and in light of the international jurisprudence, the committee considers that requiring prior undertakings that the death penalty would not be imposed or implemented, and monitoring compliance with such undertakings, is likely to be compatible with Australia's obligations under Article 6(1) of the ICCPR in most circumstances.

2.104        However, the committee notes that the safeguards in section 22(3) of the Extradition Act could be strengthened by legislating a requirement that a person not be extradited if, notwithstanding the receipt of an undertaking, there remains a real risk that the death penalty will be carried out upon the person.

Compatibility of the measure with the right to a fair hearing and fair trial

2.105         The right to a fair trial and fair hearing requires that all persons shall be equal before the courts and everyone has the right to a fair and public hearing in the determination of any criminal charge. Article 14 of the ICCPR in turn sets out a series of minimum guarantees in criminal proceedings, such as the right to be tried without undue delay. While an extradition request of itself does not amount to determination of a criminal charge,[60] European human rights jurisprudence has recognised that fair trial rights may be engaged where a person is extradited in circumstances where there is a real risk of a flagrant denial of justice in the country to which the individual is to be extradited.[61]  In other words, the right to a fair hearing and fair trial in the European human rights law context includes an obligation not to return a person (non-refoulement) to a country where they risk a flagrant denial of justice.

2.106         While it is not binding on Australia, the interpretation of the right to a fair trial and fair hearing under the European Convention of Human Rights is instructive.[62] It is also noted that the position in European human rights law jurisprudence is consistent with the United Nations Model Treaty on Extradition, which includes a mandatory ground of refusing extradition '[i]f the person whose extradition is requested...would not receive the minimum guarantees in criminal proceedings, as contained in the International Covenant on Civil and Political Rights, article 14'.[63] The committee has therefore previously noted its concern that the Extradition Act does not provide for the denial of a fair trial or fair hearing as a ground for an extradition objection.[64]

2.107         The statement of compatibility explains that the Australian Government's position is that article 14 of the ICCPR does not contain non‑refoulement obligations (that is, obligations not to return a person to their country of origin).[65] The statement of compatibility does, however, provide information as to safeguards in the Extradition Act which would allow a decision-maker to consider matters going to fair hearing and fair trial rights, including the extradition objection precluding extradition if it would result in double jeopardy,[66] and the general discretion to refuse surrender.[67] The statement of compatibility further notes that it is open to decision-makers to request assurances that persons being extradited would receive a fair trial.

2.108         An additional issue in relation to the right to a fair hearing and fair trial is that, under the Extradition Act, the requesting State is not required to produce any evidence that there is a case to answer before a person is extradited (this is sometimes referred to as the 'no evidence' model).[68] Further, a person who may be subject to extradition is prohibited from adducing any evidence to contradict the allegation that the person has engaged in conduct constituting an extradition offence (and prohibits a magistrate or Judge from receiving such evidence).[69] The provisions which govern an appeal to a higher court in relation to extradition also prohibit a person from adducing such evidence on appeal and prohibit the court from receiving such evidence on review or appeal.[70]

2.109         The absence of any requirement that there be a case to answer before a person is extradited raises questions as to whether there are sufficient safeguards in place to ensure that extradition of persons occurs in a manner that is compatible with the right to a fair hearing and fair trial. As the Joint Standing Committee on Treaties noted in its review of Australia's extradition laws in 2001, 'the consequences for a person who is facing extradition to a foreign country where the legal system, language and availability of legal assistance may present great difficulties, mean that extradition cannot be treated merely as an administrative step'.[71] The statement of compatibility to the El Salvador regulations does not address the human rights compatibility of the 'no evidence' approach.

2.110         The committee therefore sought the advice of the Attorney-General as to:

• the adequacy of the safeguards in place to prevent the extradition of persons who may, on surrender, suffer a flagrant denial of justice; and
• whether, in not requiring any evidence to be produced before a person can be extradited, and in preventing a person subject to extradition from producing evidence about the alleged offence, the El Salvador regulations and the Extradition Act are compatible with the right to a fair trial and fair hearing.

Attorney-General's response

Article 14 of the ICCPR and non-refoulement

2.111         In relation to the adequacy of safeguards in place to prevent the extradition of persons who may suffer a flagrant denial of justice in the extradition country, the Attorney-General's response reiterates the government's view that Article 14 of the ICCPR does not contain non-refoulement obligations. It is acknowledged that the UN Human Rights Committee has not yet ruled on whether Article 14 of the ICCPR engages non-refoulement obligations.[72] However, the European human rights jurisprudence coupled with the UN Model extradition treaty provide insight as to the development of international human rights law in this area, and suggest that the trend is to recognise that the right to a fair trial and fair hearing engage non-refoulement obligations where the person faces a real risk of a flagrant denial of justice if extradited. To this extent, this comparative jurisprudence provides useful guidance as to how the UN Human Rights Committee may consider this issue in the future.

2.112         The Attorney-General's response also reiterates that the mandatory ground of refusal relating to double jeopardy and the general discretionary power in section 22(3)(f) of the Extradition Act are relevant safeguards in relation to the right to a fair trial. The response explains:

This discretionary power provides a sufficient basis to refuse extradition in circumstances where there are legitimate concerns about the person's access to a fair trial. While Australia's non-refoulement obligations under the ICCPR do not extend to Article 14 of the ICCPR, in relevant matters, the Department would put particular claims that a person may not receive a fair trial in light of their circumstances or any other fair trial issues before the Attorney-General as relevant considerations in exercising his or her general discretion. The relevant considerations may include the extent to which an individual would receive minimum procedural guarantees in a criminal trial in the country to which he or she is being returned. Assessment of these claims may include analysis of the person's claims and any representations or undertakings from the requesting country. The assessment may also consider country information, reports prepared by non-government organisations and information provided through the diplomatic network.

2.113         The department's practice of putting particular claims as to fair trial issues before the minister when she or he is deciding an extradition request is an important safeguard. However, apart from double jeopardy, this is not an express requirement or a mandatory ground of refusal. As noted earlier, a general executive discretion to refuse to surrender a person may not be a sufficient safeguard for the purposes of international human rights law.

2.114         The Attorney-General's response further states that expressly including fair trial as a ground for refusal may generate litigation about issues which are essentially attributable to differences between the bases of common law and civil legal systems. The response also states that allowing individuals to challenge extradition on this basis would be incompatible with the international principle of comity. 

2.115         In this respect,  the High Court of Justice of England and Wales stated in the context of the right to a fair trial under the ECHR, the test of whether there is a 'real risk of a given Respondent suffering a flagrant denial of a fair trial' if extradited required consideration of the following:

Lord Carswell in Ullah reminds us that Member States cannot export the standards and obligations to other States not signatories. On the contrary, Member States have international obligations, in this context most often derived from extradition treaties, in this instance from the MoUs [Memorandum of Understanding].

The burden of raising such an objection to extradition lies on the Requested Person, although if an objection of substance is raised, it is for the Requesting State to counter the objection. The standard of proof is probability. It is a projection of risk: the burden on the RP [Requested Person] is to show, to the standard of probability, that a real risk of the specified kind arises. As the criticism of DJ Evans in Brown (paragraph 34) makes clear, the height of the bar is not derived from the standard of proof, or the establishment of “real risk”, as opposed to straight probability: the “high test” lies in the degree of denial of fair trial if the risk eventuates.

The rarity of cases where extradition has been rendered unlawful by reference to Article 6 [right to a fair trial] does not, of course, amount to any kind of presumption against such a bar, much less a rule of law. It does serve to emphasise how significant must be the denial of justice in question, before an effective bar is raised.

The speech of Lord Phillips in RB (Algeria) (paragraph 133) is a useful guide. The consideration of the risk of denial of justice must go beyond the procedural. Article 6 is a procedural right. The Court should be giving consideration to the outcome of a breach, if it eventuates.[73]

2.116         This reasoning indicates that in jurisdictions where fair trial rights do give rise to non-refoulement obligations, the test of 'flagrant denial of justice' is a stringent one.[74] Therefore, the potential for litigation based on fair trial standards should not, of itself, preclude fair trial guarantees from being expressly considered as grounds of refusal under the Extradition Act.  This stringent standard and the requirement that 'Member States cannot export the standards and obligations' under international human rights treaties to non-party states[75] also accommodate concerns of international comity. Noting the developments in European human rights jurisprudence in this area and the UN Model Extradition Treaty, the Extradition Act would benefit from a comprehensive review by the relevant minister to assess its provisions against Australia's obligations under international human rights law.

Right to a fair trial and the 'no evidence' model

2.117         As to whether, in not requiring any evidence to be produced before a person can be extradited, and in preventing a person subject to extradition from producing evidence about the alleged offence, the El Salvador regulations and the Extradition Act are compatible with the right to a fair trial and fair hearing, the Attorney-General's response states:

Extradition is an administrative legal process whereby a person may be transferred from one country to another to face prosecution or to serve a prison sentence for offences against the law of the other country. The extradition process in Australia does not involve an assessment of guilt or innocence; it is not a criminal trial.

The purpose of an extradition hearing is to determine whether a person should be extradited; it is not to test evidence in the case against them. It is important that a person faces prosecution or serves a sentence in the country in which he or she has been accused or sentenced. The 'no evidence' standard has been Australia's preferred approach since 1988 and all of Australia's modern extradition treaties have been negotiated on this basis.

The term 'no evidence' does not mean 'no information'. Rather, it means that an extradition request needs to be supported by a statement of the offence and the applicable penalty, and a statement setting out the conduct alleged against the person in respect of each offence for which extradition is sought, but it does not require evidence to be produced which is sufficient to prove each element of each alleged offence under the laws of the requested country (such as 'prima facie' evidence including witness statements and affidavits). Given it is not the purpose of an extradition hearing to test the evidence, it is appropriate that the person sought to be extradited does not produce evidence about the alleged offence.

The 'no evidence' standard is in line with the international trend toward simplifying the extradition process and is consistent with the United Nations Model Treaty on Extradition. It has allowed Australia to enter into extradition relations with many civil law countries that would otherwise have been unable to conduct extradition with Australia. A return by Australia to a prima facie evidentiary standard would cause considerable disruption to our existing extradition relationships, and would be very counterproductive in terms of international law enforcement cooperation.

2.118         It is acknowledged that there are different approaches in different jurisdictions to this issue.[76] While the Attorney-General notes the trend toward simplifying the extradition process, there are some jurisdictions where, having regard to principles of fundamental justice, there is a requirement for some weighing of evidence before deciding whether to extradite a person. Canadian courts, for example, have held the principles of fundamental justice applicable to an extradition hearing require that the person sought for extradition receive a meaningful judicial determination of whether the case for extradition has been established.[77] This requires some minimal weighing of evidence to prevent a person from being deprived of their liberty in circumstances where there is no evidentiary basis to do so.[78] Where the evidence is so defective or appears so unreliable that a judge concludes it would be dangerous or unsafe to convict, the case would be considered insufficient for committal for extradition.[79]

2.119         The Attorney-General's response otherwise does not substantively address the committee's inquiry as to whether the 'no evidence' model is compatible with the right to a fair hearing and fair trial. Accordingly, it is not possible to conclude whether the 'no evidence' approach is compatible with the right to a fair trial and fair hearing.

Committee response

2.120        The committee thanks the Attorney-General for his response and has concluded its examination of this issue.

2.121        Based on the information provided, it is not possible to conclude whether the measures in the Extradition Act discussed in the preceding analysis are compatible with the right to a fair trial and fair hearing.

2.122        The committee reiterates its previous comment that the Extradition Act would benefit from a comprehensive review from the relevant minister to assess its provisions against Australia's obligations under international human rights law.

Compatibility of the measure with the right to liberty

2.123         The right to liberty is a procedural guarantee requiring that persons not be arbitrarily and unlawfully deprived of liberty. This requires that detention must be lawful, reasonable, necessary and proportionate in all the circumstances.  Imposing a rule that bail must be refused except in special circumstances, as occurs in the Extradition Act,[80] appears to limit this right. This concern is heightened by the potentially lengthy period in which a person may be detained during extradition proceedings.[81] It was noted that this is of particular concern in the context of the El Salvador regulations, which increase the period in which a person must be brought before a magistrate or eligible Federal Circuit Court judge after being arrested from 45 days[82] to 60 days.[83]

2.124         As such, the limitation on the right to liberty must be shown to seek to achieve a legitimate objective, have a rational connection to that objective and be proportionate. The statement of compatibility notes that a presumption against bail is appropriate 'given the serious flight risk posed in extradition matters and Australia's international obligations to secure the return of the alleged offenders to face justice in the requesting country'.[84] However, as the committee has previously stated, while preventing people who may be a flight risk from avoiding the extradition process may be capable of being a legitimate objective, it is not clear that a blanket prohibition on bail except in special circumstances is a proportionate response.[85]

2.125         In Griffiths v Australia, the UN Human Rights Committee found that Australia had breached article 9(1) of the ICCPR on the basis that the complainant's continuing detention pending extradition without adequate individual justification was arbitrary.[86] It reiterated that in order to avoid a characterisation of arbitrariness, detention should not continue beyond the period for which the State party could provide appropriate justification.[87] It also concluded that there may be less rights-restrictive measures to achieve the same ends, such as the imposition of reporting obligations, sureties or other conditions which would take account of individual circumstances.[88]

2.126         The UN Human Rights Committee also found Australia in violation of article 9(4) of the ICCPR in circumstances where the complainant was 'effectively precluded, by virtue of the State party's law and practice, from taking effective proceedings before a court in order to obtain a review of the lawfulness of his continuing detention, as the courts had no power to review whether his detention continued to be lawful after a lapse of time and to order his release on this basis'.[89] The Australian government responded to this ruling by noting (relevantly) that it was open to the complainant to apply for bail, citing the power of the Court under section 21(6) of the Extradition Act to order release on bail if there were 'special circumstances' justifying that release, and also pointed to the availability of the writ of mandamus in the High Court of Australia and judicial review under the Judiciary Act 1903.[90] However, the initial human rights analysis stated that it is not clear that the requirement of a court considering whether 'special circumstances' exist would be sufficient consideration of whether a person's detention may be compatible with article 9. It was also not clear how such matters would be able to be raised through judicial review. Therefore, the previous analysis noted that questions arise as to whether the current framework for review of detention in the Extradition Act, as expanded by the El Salvador regulations, provides sufficient opportunity for persons to challenge the lawfulness of their continuing detention for the purposes of international human rights law.

2.127         Further, extradition invariably results in the detention of a person pending extradition and may also involve lengthy detention in a foreign country while awaiting trial. This potentially lengthy detention of persons without first testing the evidence against them raises additional concerns that the 'no evidence' model discussed above may give rise to a circumstance where a person may be arbitrarily detained. This matter was not addressed in the statement of compatibility.

2.128         The committee sought the advice of the Attorney-General as to:

• whether a presumption against bail except in special circumstances is a proportionate limitation on the right to liberty;
• whether, having regard to Griffiths v Australia, the El Salvador regulations and the Extradition Act provide an opportunity for persons to review the lawfulness of their detention pending extradition in accordance with article 9(4) of the ICCPR;
• whether detaining persons during the extradition process without first testing the evidence against the person is compatible with the right to liberty; and
• whether section 6 of the El Salvador regulations, which increases the period in which a person must be brought before a magistrate or eligible Federal Circuit Court judge after being arrested from 45 days to 60 days, is a proportionate limitation on the right to liberty.

Attorney-General's response

Presumption against bail

2.129         In response to whether a presumption against bail except in special circumstances is a proportionate limitation on the right to liberty, the Attorney-General's response states:

It is accepted international practice for a person to be held in administrative detention pending extradition proceedings. The remand of the person is not undertaken as a form of punishment and in no way relates to guilt or innocence of any offence. The validity of Australia's process of remanding a person during extradition proceedings has been confirmed by the High Court in Vasiljkovic v Commonwealth [2006] HCA 40.

The presumption against bail for persons sought for extradition is appropriate given the serious flight risk posed in extradition matters and Australia's international obligations to secure the return of alleged offenders to face justice. Unfortunately, reporting and other bail conditions are not sufficient to prevent individuals who wish to evade extradition from absconding. In extradition cases there is an increased risk of persons absconding before they can be surrendered to the requesting foreign country. If a person who has been remanded on bail absconds during extradition proceedings, it jeopardises Australia's ability to extradite the person which in turn would impede Australia's treaty obligations to return a person to the requesting country. Ultimately, it can also lead to a state of impunity where a person can disappear and continue to evade law enforcement authorities.

The High Court in United Mexican States v Cabal [2001] HCA 60 observed that to grant bail where a risk of flight exists would jeopardise Australia's relationship with the country seeking extradition and jeopardise our standing in the international community. Bail can be granted where special circumstances exist. The courts have shown their willingness to grant bail when these special circumstances arise.

For these reasons the Government considers the current presumption that bail should only be granted in 'special circumstances' is appropriate, given the significant flight risk posed by people subject to extradition proceedings, and should be maintained. It is a reasonable and proportionate limitation on the right to liberty, necessary to achieve the legitimate objective of securing the return of alleged offenders to face justice, noting that extradition offences are serious offences, including terrorism, murder and transnational organised crimes.

2.130         Where a person poses a flight risk, refusing the grant of bail may be a proportionate limitation on the right to liberty.[91] It is also acknowledged that the extradition offences are usually serious offences. However, a presumption against bail fundamentally alters the starting point of an inquiry as to the grant of bail. That is, unless there are special circumstances, a person will be detained pending extradition. In this respect, the High Court of Australia has held that to constitute 'special circumstances', the matters relied upon 'need to be extraordinary and not factors applicable to all defendants facing extradition',[92] and the general rule in extradition cases is that defendants are to be held in custody whether or not their detention is necessary.[93] This is therefore a high threshold for a defendant to satisfy.[94]

2.131         As noted in the initial analysis, international human rights law requires adequate individual justification for a person's continued detention pending extradition in order to avoid a characterisation of arbitrariness.[95] To comply with article 9 of the ICCPR, states parties to the ICCPR must show the individual poses such a threat that it cannot be addressed by alternative measures, and that burden increases with the length of detention.[96] Concerns remain, therefore, that the presumption against bail and the high threshold for establishing 'special circumstances' creates a risk that persons may be deprived of their liberty in circumstances that may be incompatible with article 9 of the ICCPR.

Access to review the lawfulness of detention pending extradition

2.132         As to whether, having regard to Griffiths v Australia, the El Salvador regulations and the Extradition Act provide an opportunity for persons to review the lawfulness of their detention pending extradition in accordance with article 9(4) of the ICCPR, the Attorney-General's response firstly notes that following amendments to the Extradition Act in 2012, a person may make an application for bail at each stage of the extradition process and the court may grant bail if there are special circumstances. (In contrast, at the time Griffiths v Australia was decided, a person could only make bail applications in the early stages of extradition proceedings).  The Attorney-General's response also identifies other avenues of review, such as the right of review under section 39B of the Judiciary Act 1903, a writ of mandamus in the High Court and a habeas corpus application. The response also reiterates that extradition is an administrative legal process that would not be appropriate for the testing of evidence by Australian courts, and therefore that the 'no evidence' model is also compatible with the right to liberty.

2.133         However, while there are increased opportunities to apply for bail since the Griffiths v Australia case was decided, the high threshold of establishing 'special circumstances' remains the same. As a result, it is not clear that further opportunities to apply for bail would necessarily meet the requirement that review of detention, in its effects, be 'real and not merely formal'.[97] Further, the avenues of judicial review identified by the Attorney-General were also available at the time Griffiths v Australia was decided.[98] These avenues notwithstanding, the UN Human Rights Committee concluded that the complainant was 'effectively precluded, by virtue of the State party's law and practice, from taking effective proceedings before a court in order to obtain a review of the lawfulness of his continuing detention, as the courts had no power to review whether his detention continued to be lawful after a lapse of time and to order his release on this basis'.[99]  Concerns therefore remain that there is a risk that a person detained pending extradition may be deprived of their liberty in circumstances contrary to article 9(4) of the ICCPR.

The 60 day period before a person is brought before a magistrate

2.134         In response to whether section 6 of the El Salvador regulations is a proportionate limitation on the right to liberty, the response states:

The 60 day period is common to Australia's recent extradition practice, and has been included for a broad range of countries, including for example, the US, Canada, Mexico, Brazil, Croatia and others. This time period takes into account the time required to comply with the requirements of the Extradition Act, namely the complexities of securing the delivery of original documents and translations thereof in the correct form from foreign countries via the diplomatic channel, and the formal acceptance of the request by the Attorney-General. During this 60 day period the person can make an application for bail under section 15 of the Extradition Act, which provides that a person who is arrested under an extradition arrest warrant must be brought as soon as practicable before a magistrate or eligible Federal Circuit Court Judge in the State or Territory in which the person is arrested, and the person may be remanded on bail where there are special circumstances. As noted above, the extradition framework has been designed to be proportionate to the legitimate aim of securing the return of alleged offenders to face justice, noting that extradition offences are serious offences, including terrorism, murder and transnational organised crimes.

2.135         The information from the minister as to the 60 day period is useful in assessing the proportionality of the limitation on the right to liberty.  However, for the reasons discussed above, the presumption against bail that applies to persons subject to extradition (including under section 15 of the Extradition Act) creates a risk that such detention may not be compatible with article 9 of the ICCPR.

Committee response

2.136        The committee thanks the Attorney-General for his response and has concluded its examination of this issue.

2.137        The committee considers that the presumption against bail and limited opportunities for persons to review the lawfulness (as a matter of international human rights law) of their detention pending extradition in the El Salvador Regulations and the Extradition Act creates a risk that persons may be deprived of their liberty in circumstances that may be incompatible with article 9 of the ICCPR.

2.138        The committee reiterates its previous comment that the Extradition Act would benefit from a comprehensive review from the relevant minister to assess its provisions against Australia's obligations under international human rights law.

Compatibility of the measure with the right to equality and non-discrimination

2.139         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 the equal and non‑discriminatory protection of the law. The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.

2.140         As noted in the statement of compatibility, section 7 of the Extradition Act promotes this right to the extent that it sets out grounds on which a person might raise an objection to extradition, including grounds to object where:

• surrender is sought for the purpose of prosecuting or punishing the person on account of his or her race, sex, sexual orientation, religion, nationality or political opinions; or
• the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, sex, sexual orientation, religion, nationality or political opinions.[100]

2.141         While these are important safeguards, it does not cover all of the grounds that are considered 'prohibited grounds' of discrimination in the international human rights conventions to which Australia is a party, including discrimination on the basis of disability, language, opinions (other than political opinions), social origin or marital status. The statement of compatibility notes that the person subject to extradition 'has an opportunity to make representations to the decision-maker regarding all of the protected attributes in article 26 of the ICCPR',[101] however no information is provided in the statement of compatibility as to how such matters would be taken into account. There does not appear to be any legal requirement for a decision-maker to refuse to surrender a person where they may be subject to discrimination on a prohibited ground that is not included in section 7 of the Extradition Act.

2.142         The committee sought the advice of the Attorney-General as to the compatibility of the El Salvador regulations and the Extradition Act with the right to equality and non-discrimination. In particular, the committee sought information as to the safeguards in place to ensure:

• a person is not extradited where their surrender is sought for the purpose of prosecuting or punishing the person on account of her or his personal attribute that is protected under article 26 of the ICCPR but not listed in section 7 of the Extradition Act; and
• a person is not extradited where they may be prejudiced at her or his trial, or punished, detained or restricted in her or his personal liberty, by reason of a personal attribute that is protected under article 26 of the ICCPR but not listed in section 7 of the Extradition Act.

Attorney-General's response

2.143         In relation to these matters, the Attorney-General's response provides the following information:

The Extradition Act includes grounds for refusing surrender if the person may be prejudiced by reason of his or her race, religion, nationality, political opinions, sex or sexual orientation, or where extradition is sought for the purpose of prosecuting or punishing the person on account of any of these factors. This provides a broad basis to refuse extradition where there may be adverse impacts because the person may be discriminated against. The Attorney-General's broad discretion in paragraph 22(3)(f) of the Extradition Act to refuse surrender provides a sufficient basis to refuse extradition in circumstances where there are other concerns about discrimination against a person.

As the Committee points out in its report, the grounds in Article 26 of the ICCPR that are not contained in the Extradition Act are language, colour, national or social origin, birth (although nationality and race are covered), property, other opinion, or other status. Any concerns relating to these additional grounds are more appropriately considered as part of the Attorney-General's general discretion to refuse to extradite a person. Including further grounds would significantly widen the scope for appeals of extradition decisions. For example, 'other status' has no definite meaning and the inclusion of this ground as an extradition objection under the Extradition Act would make the list of discrimination grounds non-exhaustive. This would likely generate significant litigation.

As noted above, I consider that the general discretion is an appropriate and adequate safeguard.

2.144         In relation to the Attorney-General's statement that the general discretion is an appropriate and adequate safeguard, for the reasons discussed earlier at [2.83], a general legislative safeguard may not be sufficient for the purposes of international human rights law.

2.145         While the Attorney-General's response states that the additional grounds for discrimination listed in the ICCPR would be more appropriately considered as part of the Attorney-General's general discretion, the basis for including some categories and not others in section 7 of the Extradition Act remains unclear.  For example, while the Attorney-General notes that 'other status' discrimination has no definite meaning, there are other prohibited grounds of discrimination not listed as grounds for an extradition objection which have a definite meaning under international human rights law, such as national or social origin, property and birth.[102] Further, while the ground of 'other status' discrimination is not exhaustive,[103] there are several groups within that category that are recognised and defined as a matter of international human rights law, including age, nationality, and disability.[104] There are also attributes that fall within the 'other status' category under international human rights law but which are explicitly listed as grounds for an extradition objection in the Extradition Act, such as sexual orientation.[105] It is also not clear why the potential for litigation is of itself a justification for including only a partial number of grounds for extradition objections based on discrimination, when a larger number of prohibited grounds are protected under international human rights law.

Committee response

2.146        The committee thanks the Attorney-General for his response and has concluded its examination of this issue.

2.147        Based on the information provided, it is not possible to conclude whether failing to include some of the prohibited grounds of discrimination in article 26 of the ICCPR as bases for an extradition objection is compatible with the right to equality and non-discrimination.

2.148        The committee reiterates its previous comment that the Extradition Act would benefit from a comprehensive review from the relevant minister to assess its provisions against Australia's obligations under international human rights law.

Removing India from the list of extradition countries in the Extradition (Commonwealth Countries) Regulations 2010

2.149         Item 1 of the Extradition Legislation Amendment (2017 Measure No. 1) Regulations (Extradition Amendment Regulations) seeks to remove India from the list of extradition countries in Schedule 1 in the Extradition (Commonwealth Countries) Regulations 2010 (the Commonwealth Countries Regulations). This is because extradition requests between Australia and India are now governed under the Extradition (India) Regulations 2010 (the India Regulations) and the Extradition Act, so the reference to India in the Commonwealth Countries Regulations is no longer required.

Compatibility of the measure with multiple rights

2.150         The human rights analysis discussed earlier in relation to the El Salvador regulations applies equally to the Extradition Amendment Regulations. However, it was noted that there are several additional safeguards included in the India regulations that are not present in the El Salvador regulations and which modify the operation of the Extradition Act, including:

• article 4(3)(d) of the bilateral extradition treaty with India implemented domestically through the India Regulations (the India Extradition Treaty) allows a request for extradition to be refused if surrender is likely to have exceptionally serious consequences for the person whose extradition is sought, including because of the person's age or state of health; and
• if Australia receives a request under the India Extradition Treaty, then supporting documentation to establish that the person sought has committed the offence must be provided.[106] This is a departure from the 'no evidence' standard discussed above in relation to the El Salvador regulations.

2.151         However, it was also noted that the Commonwealth Countries Regulations, which will no longer apply to India as a result of the Extradition Amendment Regulations, would have provided greater safeguards to protect human rights, including:

• the standard of evidence required to support an extradition request under the Commonwealth Countries Regulations is that of a 'prima facie' case,[107] which provides a greater level of scrutiny than the 'no evidence' standard under the Extradition Act; and
• a requirement that the person must not be surrendered if the Attorney-General is satisfied that it would be 'unjust, oppressive or too severe a punishment' to surrender the person, such as where the offence is trivial or where the accusation against the person was not made in good faith or in the interests of justice.[108]

2.152         These safeguards in the Commonwealth Countries Regulations are relevant to the determination of whether the human rights engaged and limited by the Extradition Act are proportionate. In particular, the presence of the 'prima facie' evidence test in the Commonwealth Countries Regulations would address some of the concerns discussed earlier concerning the default 'no evidence' standard in the Extradition Act in relation to the right to a fair trial and fair hearing and the right to liberty. Similarly, the requirement that a person must not be extradited if it would be 'unjust, oppressive or too severe a punishment' may assist in determining whether the measure is compatible with the right to a fair trial and fair hearing. By removing India from the scope of the Commonwealth Countries Regulations, these safeguards are no longer available.

2.153         The committee sought the advice of the Attorney-General as to the compatibility of the Extradition Legislation Amendment (2017 Measure No.1) Regulations with human rights, having regard to the matters discussed above in relation to the El Salvador Regulations, in particular the:

• prohibition against torture, cruel, inhuman and degrading treatment;
• right to life;
• right to a fair hearing and fair trial;
• right to liberty; and
• right to equality and non-discrimination.

2.154         The committee sought the advice of the Attorney-General as to whether removing India from the list of 'extradition countries' in the Extradition (Commonwealth Countries) Regulations 2010 is a proportionate limitation on human rights, having regard to the safeguards in that regulation that are not present in the Extradition Act or the Extradition (India) Regulations 2010.

Attorney-General's response

2.155         In relation to the committee's inquiries set out above, the Attorney-General refers to his comments in relation to the El Salvador regulations and further states:

Evidence standard

The Committee identified the change from the 'prima facie' standard to the 'no evidence' standard in relation to the material required to support extradition. The 'no evidence' standard was addressed above in relation to the Extradition (El Salvador) Regulations 2017.

Ground for refusal

The Committee identified that the express ground for refusal in the Extradition (Commonwealth Countries) Regulations 2010 regarding 'unjust, oppressive or too severe a punishment' is not expressly contained In the Extradition (India) Regulations 2010. These matters are covered by the general discretion to refuse surrender under paragraph 22(3)(f) of the Extradition Act.

The general discretion also provides a basis to refuse extradition in circumstances where there are concerns about the person's access to a fair trial. These matters are addressed above in relation to the Extradition (El Salvador) Regulations 2017.

As noted above, I consider that the general discretion is an appropriate and adequate safeguard.

2.156         For the reasons discussed earlier in relation to the El Salvador regulations, it is not possible to conclude whether the 'no evidence' standard in the Extradition Act is compatible with the right to a fair trial and fair hearing. It is also not clear from the information provided whether the requirement pursuant to the India Extradition Treaty that supporting documentation to establish that the person sought has committed the offence must be provided provides a different level of protection for persons being extradited than the 'no evidence' standard in the Extradition Act. However, the different approaches of requiring supporting documentation to establish that the person sought has committed the offence in the India Extradition Treaty and the 'prima facie' case requirement in the Commonwealth Countries Regulations supports the view that there are different approaches to this issue, and that the provisions of the Extradition Act would benefit from a comprehensive review for compatibility with international human rights law. 

2.157         In relation to the Attorney-General's response that the general discretion in section 22(3)(f) would cover circumstances where it would be 'unjust, oppressive or too severe a punishment' to extradite a person, for the reasons discussed above, a general legislative discretion may not be a sufficient safeguard for the purposes of international human rights law.

Committee response

2.158        Noting the human rights concerns raised in the preceding analysis, the committee thanks the Attorney-General for his response and has concluded its examination of this issue.

2.159        Based on the information provided, it is not possible to conclude whether removing India from the list of extradition countries in Schedule 1 in the Extradition (Commonwealth Countries) Regulations 2010 is compatible with human rights.

2.160        The committee reiterates its previous comment that the Extradition Act would benefit from a comprehensive review from the relevant minister to assess its provisions against Australia's obligations under international human rights law.

Amendments to reflect changes made to the Convention on the Physical Protection of Nuclear Material 1979

2.161         Items 2, 3 and 4 of the Extradition Amendment Regulations also seek to amend the Extradition (Physical Protection of Nuclear Materials) Regulations 1988 (the Nuclear Materials Regulations) and the Extradition Regulations 1988 to reflect amendments made to the Convention on the Physical Protection of Nuclear Material (the Nuclear Material Convention). That convention relevantly requires states parties to provide extradition and mutual assistance to facilitate the enforcement of a series of offences relating to the protection, storage and transportation of nuclear material.  Amendments to that convention were made by the Amendment to the Convention on the Physical Protection of Nuclear Material (the Amended Nuclear Material Convention), which expands the list of offences for which signatories may request a person's extradition. The Amended Nuclear Material Convention also requires signatories not to regard offences committed under that convention as a 'political offence' when considering a request for extradition or mutual assistance.[109] As a consequence, a request for extradition or for mutual legal assistance based on an offence under the Nuclear Material Convention (as amended by the Amended Nuclear Material Convention) cannot be refused on the ground that it is a political offence.

Compatibility of the measure with multiple rights

2.162         The effect of the amendments introduced relating to the Amended Nuclear Material Convention in the Extradition Amendment Regulations is to expand the operation of the Extradition Act to include a broader range of offences, and to remove offences under the Nuclear Material Convention (as amended by the Amended Nuclear Material Convention) from the scope of the 'political offence' extradition objection. As a consequence, the human rights analysis discussed above in relation to the El Salvador regulations applies equally to these amendments.

2.163         As noted in the statement of compatibility, there are some safeguards contained in the Nuclear Material Convention (as amended by the Amended Nuclear Material Convention) that are incorporated into Australian law through the Nuclear Materials Regulations that may assist in determining the proportionality of the limitations on human rights, including:

• article 11B of the Amended Nuclear Material Convention provides that nothing in the convention shall be interpreted as an obligation to extradite where the extraditing state has substantial grounds for believing that the request for extradition for one of the offences under the convention 'has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that person’s position for any of these reasons'; and
• article 12 of the Nuclear Material Convention provides that any persons in relation to whom proceedings are being carried out in connection with the offences in the convention 'shall be guaranteed fair treatment at all stages of the proceedings'.

2.164         However, the initial analysis stated that concerns remain in relation to the human rights compatibility of the Extradition Amendment Regulations for the same reasons as those outlined above in relation to the El Salvador Regulations. For example, it was noted that the 'no evidence' standard applies in relation to these amendments. While the statement of compatibility states that the 'prima facie' standard is not required because extradition is not a criminal process,[110] the statement of compatibility does not specifically address the concerns raised above that the 'no evidence' standard may not provide a sufficient safeguard to ensure that extradition of persons occurs in a manner that is compatible with the right to a fair hearing and fair trial or right to liberty.

2.165         The committee sought the advice of the Attorney-General as to the compatibility of items 2 and 3 of the Extradition Legislation Amendment (2017 Measure No.1) Regulations with human rights having regard to the matters discussed above, in particular the:

• prohibition against torture, cruel, inhuman and degrading treatment;
• right to life;
• right to a fair hearing and fair trial;
• right to liberty; and
• right to equality and non-discrimination.

Attorney-General's response

2.166         The Attorney-General's response states that '[t]hese matters are addressed above in relation to the Extradition (El Salvador) Regulations 2017'. The matters discussed above in relation to the El Salvador regulations apply equally in the context of the amendments to the Nuclear Material Regulations.

Committee response

2.167        Noting the human rights concerns raised in the preceding analysis, the committee thanks the Attorney-General for his response and has concluded its examination of this issue.

2.168        Based on the information provided, it is not possible to conclude whether items 2 and 3 of the Extradition Legislation Amendment (2017 Measure No.1) Regulations are compatible with human rights.

2.169        The committee reiterates its previous comment that the Extradition Act would benefit from a comprehensive review from the relevant minister to assess its provisions against Australia's obligations under international human rights law.

Identity-matching Services Bill 2018

Australian Passports Amendment (Identity-matching Services) Bill 2018

Purpose	This bill seeks to facilitate the exchange of identity information between Commonwealth, state, local and territory governments and certain non-government entities by providing explicit legal authority for the Department of Home Affairs to collect, use and disclose identification information in order to operate identity-matching services
Portfolio	Home Affairs; Foreign Affairs and Trade
Introduced	House of Representatives, 7 February 2018
Right	Privacy (see Appendix 2)
Previous report	3 of 2018
Status	Concluded examination

Background

2.170         The committee first reported on these bills in its Report 3 of 2018, and requested a response from the Minister for Home Affairs and the Minister for Foreign Affairs by 11 April 2018.[111]

2.171         The Minister for Foreign Affairs' response to the committee's inquiries was received on 11 April 2018 and the Minister for Home Affairs' response was received on 30 April 2018. The responses are discussed below and reproduced in full at Appendix 3.

2.172         The committee previously examined the instrument providing legislative authority for the government to fund the National Facial Biometric Matching Capability (the Capability) in its Report 9 of 2017 and its Report 11 of 2017.[112] The Capability facilitates the sharing and matching of facial images as well as biometric information between agencies through a central interoperability hub (the Hub) and the National Driver Licence Facial Recognition Solution (the NDLFRS). In relation to this measure, the committee concluded that there was a risk of incompatibility with the right to privacy through the use of the existing laws as a basis for authorising the collection, use, disclosure and retention of facial images. The committee stated that setting funding for the Capability without new primary legislation which circumscribes the Capability's operation raises serious concerns as to the adequacy of safeguards to ensure that the measure is a proportionate limitation on the right to privacy.[113]

Facilitating facial and biometric data identity matching

2.173         The Identity-matching Services Bill 2018 (the Identity Matching Bill) provides that the secretary of the Department of Home Affairs may develop, operate and maintain the Hub and the NDLFRS.^[114]  

2.174         The Hub would facilitate the sharing and matching of facial images as well as biometric information between government agencies by relaying electronic communications.[115]

2.175         The NDLFRS will include a database of identification information from state and territory authorities and will make driver licence facial images available through the identity matching service described below at [2.177].[116]  

2.176         The Identity Matching Bill provides an explicit legal basis to authorise the Department of Home Affairs to collect, use and disclose 'identification information' about an individual if it occurs through the Hub or the NDLFRS and is for a range of specified purposes.^[117] 'Identification information' is defined to include a person's name (current and former); address (current and former); place and date of birth; current or former sex, gender identity or intersex status; any information contained in a driver's licence, passport or visa and a facial image of the person.^[118]

2.177         As set out in the explanatory memorandum, the Hub and the NDLFRS will support a range of identity matching services:

• the Face Verification Service (FVS), which enables a facial image and associated biographic details of a person to be compared on a one-to-one basis against an image held on a specific government record for that same individual;
• the Face Identification Service (FIS), which searches or matches facial images on a one-to-many basis to help determine the identity of an unknown person, or detect instances where a person may hold multiple fraudulent identities;
• the One Person One Licence Service (OPOLS), which will allow state and territory agencies to detect instances where a person may hold multiple driver licences across jurisdictions;
• the Facial Recognition Analysis Utility Service (FRAUS), which will allow state and territory agencies to assess the accuracy and quality of their data holdings; and
• the Identity Data Sharing Service (IDSS), which will allow for the sharing of biometric identity information between Commonwealth, state and territory agencies.[119]

2.178         The explanatory memorandum states that all states and territories have agreed to introduce or preserve legislation to support the collection, use and disclosures of facial images and identity information via these identity matching services.[120]

Compatibility of the measures with the right to privacy

2.179         The right to privacy includes respect for informational privacy, including the right to respect for private information, particularly the storing, use and sharing of personal information; and the right to control the dissemination of information about one's private life. As noted in the committee's previous reports, the collection, use and disclosure of identity information (including photographs) through the Hub and the NDLFRS engages and limits the right to privacy.[121] The right to privacy may be subject to permissible limitations which are provided by law and are not arbitrary. In order for limitations not to be arbitrary, the measure must pursue a legitimate objective and be rationally connected and proportionate to achieving that objective.

2.180         The statement of compatibility to the Identity Matching Bill acknowledges that authorising the Department of Home Affairs to collect, use and disclose information including personal and sensitive information engages and limits the right to privacy but argues that this limitation is permissible.[122] The statement of compatibility states that the measure pursues a range of objectives for each identity matching service (namely, the FVS, FIS, OPOLS, FRAUS and IDSS). These include the detection and prevention of identity fraud, national security, law enforcement, protective security, road safety and community safety.[123] The initial human rights analysis assessed that these are likely to constitute legitimate objectives for the purposes of international human rights law.

2.181         The statement of compatibility to the Identity Matching Bill indicates that matching facial images, biometric data and identities through the Hub and the NDLFRS is also likely to be rationally connected (that is, effective to achieve) these objectives.

2.182         In relation to proportionality, each of the identity matching services provide for differing degrees of use, access and disclosure of personal information. However, there are general concerns in relation to proportionality that underlie each of the services. As such, the services are discussed collectively below. Where there are particular concerns in relation to a specific identity matching service, these are also discussed further below.

2.183         To be proportionate, a limitation on the right to privacy should only be as extensive as is strictly necessary to achieve its legitimate objective and must be accompanied by appropriate safeguards. In relation to the scope of the limitation on the right to privacy proposed under the Identity Matching Bill, the statement of compatibility explains:

The Bill is designed to facilitate Home Affairs to provide the identity-matching services, rather than authorise information-sharing by other organisations participating in the services. The Bill has been developed on the basis that other agencies or organisations participating in the identity-matching services must have their own legal authority to do so, and must comply with legislated privacy protections that apply to them.

This provides an additional layer of protection for the identification information held within the NDLFRS or transmitted via the interoperability hub, by ensuring that there is no automatic exemption from privacy protections for users of the identity-matching services.[124]

2.184         The initial analysis stated that providing that agencies must have their own authorisation to access data could assist to circumscribe the limitation on the right to privacy. However, it appeared that, depending on the scope of the authorisation provided to other agencies, facilitating access to identity matching services via the Hub and NDLFRS still could be a very extensive limitation on the right to privacy. In this respect, the scope provided for Commonwealth, state and territory agencies to determine what information they will provide and the circumstances in which information will be available through an authorisation, does not fully address privacy concerns in relation to the Identity Matching Bill.[125] This is because these agencies may not have adequate and effective safeguards in place to ensure that the disclosure and use of information to and from the Hub is a proportionate limit on the right to privacy.  

2.185         More generally, the question of who can access facial images and other biometric data, and in what circumstances, is relevant to whether the measure is sufficiently circumscribed. The Identity Matching Bill sets out who can use particular identity matching services through the Hub and the NDLFRS and in some cases for what purposes. The extent of access differs depending on the particular service. For example, the FIS can be used by a defined list of commonwealth, state and territory agencies as well as those prescribed through delegated legislation.[126] The initial analysis stated that restricting access to the FIS to specified particular agencies would assist with the proportionality of the measure. This is because the FIS is a more extensive limitation on the right to privacy in that it allows agencies to identify an unknown person. However, it was noted that in relation to the FIS, the minister is empowered to prescribe further agencies by delegated legislation, such that it is unclear whether the measure is sufficiently circumscribed. In relation to the FVS, providing an agency otherwise has authorisation, the FVS may be used more broadly by an agency of the Commonwealth, state or territory or local government authorities or non-government entities that have been prescribed by regulation.[127] For the FVS and other identity matching services (the FRAUS, IDSS and OPOLs), there would therefore appear to be a potentially broad range of agencies that could access such services for a range of purposes.

2.186         Further, to the extent that current Australian privacy laws may apply to the proposed facility to match facial images and other biometric data, it was noted that there are questions as to whether the current laws would provide adequate and effective safeguards for the purposes of international human rights law. In particular, while facial images are a type of personal information protected by the Australian Privacy Principles (APPs) and the Privacy Act 1988 (Privacy Act),^[128] compliance with the APPs and the Privacy Act does not necessarily provide an adequate safeguard for the purposes of international human rights law. This is because the APPs contain a number of exceptions to the prohibition on use or disclosure of personal information, including (as noted by the minister) where its use or disclosure is authorised under an Australian Law,^[129] which may be a broader exception than permitted in international human rights law. There is also a general exemption in the APPs on the disclosure of personal information for a secondary purpose where it is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body.^[130] Therefore, in the absence of greater safeguards in the Identity Matching Bill, the initial report stated that there are serious questions as to whether the safeguards currently provided under Australian law would be sufficient for the purposes of international human rights law.

2.187         The number and type of facial images and other biometric data that may be collected, accessed, used and disclosed through the Hub and the NDLFRS is also relevant to the proportionality of the limitation. The statement of compatibility indicates the broad range of facial images and biometric information which would be accessible or searchable through the Hub including state and territory driver licences (via the NDLFRS). As the Hub will permit access to driver licences, the personal information of a significant proportion of the adult Australian population will be retained. As noted in the initial analysis, a centralised facility for searching such large repositories of facial images and biometric data is a very extensive limitation on the right to privacy. The extent of the limitation heightens concerns as to whether the measure is overly broad and insufficiently circumscribed. The initial analysis stated that there is a serious question as to whether having databases of, and facilitating access to, facial images of a very significant portion of the population in case they are needed is the least rights restrictive approach to achieving the stated objectives of the measure. 

2.188         The statement of compatibility explains that the Identity Matching Bill restricts the authorisation for the Department of Home Affairs to collect, use and disclose information to a defined set of purposes, including providing an identity matching service for the purpose of an identity or community protection activity. Section 6 of the Identity Matching Bill defines 'identity or community protection activities' as detecting identity fraud, law enforcement activities, national security activities, protective security activities, community safety activities, road safety activities and verifying identity. Given these broad purposes, it appears that the range of information that could be subject to collection, disclosure and use is extensive. As noted above, driver licence photographs will be subject to the Hub and so the Hub will include personal information of a large number of the adult population. As such, it was unclear that restricting the Department of Home Affairs' authorisation to these purposes is sufficient to ensure that the measure is adequately circumscribed. Indeed, it appears that the measure may allow, for example, photographs to be collected from a range of sources. It appears possible that social media photographs could be used.

2.189    The scope of historical facial images that will be subject to the Hub was also unclear. In this respect, while the Identity Matching Bill contains a number of offence provisions relating to unauthorised access and disclosure, there was still a further concern about whether the Hub will provide adequate and effective protection against misuse in respect of vulnerable groups. For example, it was unclear the extent to which there are specific safeguards for survivors of domestic or gender-based violence who may have changed their identity and to protect against the risks of unintended consequences. If historical facial images are available, it is also possible that it may reveal that a person has undergone a change in gender identity, particularly as identification information is defined to include current or former sex or gender identities.[131] This may also engage the right to equality and non-discrimination.   

2.190         More generally, the initial analysis noted that international human rights case law has raised concerns as to the compatibility of biometric data retention programs with the right to privacy. In S and Marper v United Kingdom, the European Court of Human Rights held that laws in the United Kingdom that allowed for fingerprints, cellular samples and DNA profiles to be indefinitely retained despite the affected persons being acquitted of offences was incompatible with the right to privacy. The court expressed particular concern about the 'indiscriminate and open-ended retention regime' which applied the same retention policy to persons who had been convicted to those who had been acquitted.[132] The court considered that the 'blanket and indiscriminate nature of the powers of retention' failed to strike 'a fair balance between the competing public and private interests'.[133] 

2.191         Similarly, the United Kingdom (UK) Court of Appeal in Wood v Commissioner of Police for the Metropolis,[134] concluded that the retention of photographs which had been taken by police of a person in circumstances where the person had not committed any criminal offence had a disproportionate impact on the right to privacy under the UK Human Rights Act.[135] Collectively, these authorities suggest that the indiscriminate retention of a person's data (including biometric information and photographs) may not be a proportionate limitation on the right to privacy. In relation to accessing biometric information, the UK courts have recently found that data retention and access programs were inconsistent with the right to privacy in the context of European Union (EU) law to the extent the objective pursued by that access was not strictly limited solely to fighting serious crime and where access was not subject to prior review by a court or independent administrative authority.[136] The interpretation of the human right to privacy under the European Convention of Human Rights and the EU Charter of Fundamental Rights in those cases is instructive in informing Australia's international human rights law obligations in relation to the corresponding right to privacy under the ICCPR.

2.192         Further, some of the identity matching services under the Identity Matching Bill appear to have a more extensive impact on the right to privacy than others. For example, as noted above, the FIS would allow images of unknown individuals to be searched and matched against government repositories of facial images through the Hub. This particular identity matching service raises specific concerns given the scope of its potential impact on the right to privacy. It may not only reveal the identity of the individual but, depending on the circumstances, may reveal who a person is in contact with, when and where. For example, this could be the case with matching unidentified CCTV images of people with facial images held by government agencies. This in turn could potentially allow conclusions to be drawn about the person's political opinions, sexual habits, religion or medical concerns. This also raised concerns about whether such a measure could engage other human rights such as the right to freedom of association and the right to freedom of expression. In this context, it appeared that the FIS may not be the least rights restrictive approach to achieve the stated objectives, particularly noting that the facial images of the vast majority of adult Australians will be searchable through the Hub.

2.193         The committee therefore requested the advice of the Minister for Home Affairs as to whether the limitations on the right to privacy contained in the Identity Matching Bill are reasonable and proportionate measures to achieve the stated objective. This includes information in relation to:

• whether the provisions in the Identity Matching Bill governing access to  facial images and other biometric data are sufficiently circumscribed for each of the identity matching services;
• whether the Privacy Act 1988 (Privacy Act) will apply to the operation of the Hub and, if so, whether it will act as an adequate and effective safeguard noting the various exceptions to the collection, use and disclosure of information under the Privacy Act;
• whether the Identity Matching Bill contains adequate and effective safeguards for the purposes of international human rights law;
• whether, in light of the number, types and sources of facial images and other biometric data that may be collected, accessed, used and disclosed through the Hub and the NDLFRS, these measures are the least rights restrictive approach (including whether having facial images of the vast majority of Australians searchable via the Hub is the least rights restrictive approach and whether there are restrictions  as to the sources from which facial images may be collected);
• whether the measures are a proportionate limitation on the right to privacy with reference to the potential relevance of international jurisprudence such as that outlined at [2.190] – [2.191];
• the extent to which historical facial images will be subject to the Hub, and whether the Identity Matching Bill provides adequate and effective protection against misuse and in respect of vulnerable groups; and
• in relation to the Face Identification Service (FIS), whether allowing images of unknown individuals to be searched and matched against government repositories of facial images through the Hub is the least rights restrictive approach to achieve the stated objective.

Minister for Home Affairs' response

Restrictions on and access to identity matching services

2.194         In relation to whether the provisions governing access to  facial images and other biometric data are sufficiently circumscribed for each of the identity matching services, the minister provides the following information:

The Bill contains a number of measures to appropriately circumscribe access to data through each of the identity-matching services.

Firstly, the Bill does not authorise any agency other than the Department of Home Affairs (Home Affairs) to collect, use or disclos[e] identification information. The Bill is primarily intended to provide Home Affairs with legal authority to operate the interoperability hub and to host the National Driver Licence Facial Recognition Solution (NDLFRS).

The Bill does not seek to, nor does it, authorise other agencies to share information through the services. Each agency's use of information it receives through the services will be governed by its own legal authority to collect, use and disclose the information for particular purposes, including any legislated protections that apply to the agency under Commonwealth, state or territory privacy legislation.

By taking this approach, the Bill specifically avoids providing a blanket authorisation for all information-sharing that occurs through the services. Where an agency seeks to obtain information from another agency through the services, both the requesting agency and data-holding agency will need to have a legal basis to share information with the other. This is no different to current data-sharing arrangements, and ensures that the services are only available to those agencies that have a legal basis to share information through them under other legislation.

2.195         The minister's response further explains that each of the identity matching services have specific restrictions. In relation to the FIS, the minister's response explains, for example that:  

...as noted by the Committee, the Face Identification Service (FIS) will only be able to be used by a specific list of agencies set out in the Bill. The Committee also noted that the Bill provides for the Minister to prescribe further agencies by delegated legislation. However, subclause 8(3) of the Bill restricts this power such that the Minister is only able to prescribe a new authority for access to the FIS if the authority has one or more of the functions that used to be functions of an authority already prescribed in the Bill.

The purpose of subclause 8(3) is to restrict this power to the extent that it is only available to cover situations where one of the agencies already listed in the Bill changes names as a result of machinery of government changes or for other reasons, or where their functions shift to a different authority. As set out in the explanatory memorandum, this provision is intended to supplement, rather than replace, the relevant provisions of the Acts Interpretation Act 1901, which already provide for the continuation of provisions naming specific government agencies when a machinery of government change occurs, if those provisions do not apply.

As a result, any substantive change to the breadth or nature of the agencies that have access to the FIS will need to be made by an amendment to the Act, rather than through the making of a rule. This will help to prevent ‘scope creep’ and will ensure appropriate Parliamentary oversight of any substantive changes to FIS access.

Provision of the FIS is also restricted by paragraph 8(1)(b) of the Bill, which provides that the comparison must be undertaken in the course of an identity or community protection activity covered by subsections 6(2) to 6(6). This specifically excludes two of the identity and community protection activities, namely road safety activities (subclause 6(7)), and verifying identity (subclause 6(8)).

This restriction has been imposed in recognition of the greater privacy implications of the FIS compared to the other identity-matching services provided for by the Bill. This ensures the provision of the FIS is appropriately circumscribed relative to its privacy impacts.

2.196         This further information indicates that, in respect of the FIS, the minister's power to prescribe further agencies by delegated legislation is sufficiently circumscribed. As set out above, restricting access to the FIS to specified particular agencies and circumscribing some of the activities for which comparison may be undertaken would assist with the proportionality of the measure. The minister's response explains that the other services are limited in different ways:

...The Facial Recognition Analysis Utility Service (FRAUS) and the One-Person-One-Licence Service (OPOLS) are both restricted for use only by agencies that provide data into the NDLFRS, which will primarily be state and territory road agencies. This restriction is contained in the definitions of the services:

• For the FRAUS, subparagraph 9(a)(i) provides that a FRAUS relates to a request made by an authority of a State or Territory that has supplied identification information to a database in the NDLFRS.
• For the OPOLS, paragraph 12(b) provides that the authority [that requests the service] issues government identification documents of a particular kind and has supplied identification information...to a database in the NDLFRS.

In addition, the services only enable comparison against data in the NDLFRS – in the case of the FRAUS, only the data supplied by the same authority making the request (i.e. against their own data), and in the case of the OPOLS, only data relating to identification documents of the same type (i.e. driver licences).

These services are primarily designed to assist road agencies to manage their own data, and improve the integrity of their licence-issuing processes by providing a secure and automated tool to check whether the individual holds licences in other states and territories. As such, they are appropriately circumscribed for these purposes.

The Identification Data Sharing Service (IDSS) is also restricted by its definition, which limits its use to disclosures of identification information between one authority of the Commonwealth or of a State or a Territory to another authority of the Commonwealth or of a State or a Territory (paragraph 11(1)(c)). Although this is still quite broad compared to some of the other services, the IDSS can still only be used for the identity and community protection activities, and agencies using the service must have their own legal basis to share this information and comply with any privacy or information protection laws that apply to them. As with the other services, the Bill is not intended to provide new powers for agencies to share information, but simply to facilitate more automated, auditable and secure information-sharing through the interoperability hub.

2.197         The restrictions on access to these services are likely to assist with the proportionality of the limitation. However, as acknowledged in the minister's response many of the services may still be accessed by a large number of entities.

2.198         Further, the minister's response argues that, although the FVS will be available to the broadest number of entities including the private sector, access to this service is also sufficiently circumscribed:

The last of the services, the Face Verification Service (FVS), assists users to verify a claimed or known identity by comparing information they have about an individual (often provided by the individual) with a government record matching the same details. It will be available to the broadest range of users, and is the only service that will be available to non-government users. In most cases, the system will return a match/no match response, rather than an image, and never more than one image.

Even so, the Bill contains provisions to ensure that the provision of the service is appropriately circumscribed. In particular, a number of conditions apply to local government and non-government use of the FVS, as set out in subclause 7(3). These include that the verification of an individual's identity is reasonably necessary for the functions or activities of the entity, the individual has given consent for the use and disclosure of their information to verify their identity, the entity resides or carries on activities in Australia, and privacy protections equivalent to those provided by the Privacy Act 1988 (Cth) apply to the entity.

2.199         As the FVS only allows access to more limited information for the purposes of verifying a claimed identity this is likely to assist with the proportionality of the measure. It is acknowledged that there are circumstances where it may be necessary to verify a person's claimed identity including, on occasion, by the private sector. The information provided by the minister indicates that while the FVS will be available to the broadest range of users including the private sector, there are a number of relevant safeguards as to access and use which will also assist with the proportionality of the limitation.      

Application of the Privacy Act and other safeguards 

2.200         In relation to whether the Privacy Act will apply to the operation of the Hub and, if so, whether it will act as an adequate and effective safeguard, the minister's response states:

The Privacy Act applies to all 'APP Entities', which includes Home Affairs. The operation of the interoperability hub by Home Affairs will therefore be subject to the Privacy Act, and Home Affairs will manage the hub consistently with its obligations under that Act.

The Privacy Act and the Australian Privacy Principles contained therein provide the privacy architecture for Australian Government entities. A key objective of the Privacy Act is to balance the protection of privacy with the interests of entities in carrying out their lawful and legitimate functions and activities. The adequacy and effectiveness of the privacy safeguards contained in the Privacy Act, including the appropriateness of the exceptions to restrictions on collection, use and disclosure of information under the Privacy Act, have been considered by the Parliament in the development of the Act and subsequent amendments to it. To the extent that various exemptions in the Privacy Act may apply to the operation of the interoperability hub, this is consistent with the application of the Privacy Act across the many entities to which it applies.

2.201         It is relevant to the proportionality of the measure that the Privacy Act will apply. However, questions remain as to whether the Privacy Act is an adequate and effective safeguard for the purposes of ensuring the limitation on the right to privacy is proportionate in the context of the measure under international human rights law. In this respect, the fact that the Privacy Act has previously been considered by parliament or that it applies across government agencies does not fully address such issues. As noted in the initial analysis, the APPs contain a number of exceptions to the prohibition on use or disclosure of personal information for a secondary purpose. The particular concern is that the breadth of some of these exceptions in the context of the measure may facilitate the disclosure of personal information in circumstances that are not compatible with the right to privacy.

2.202         For example, it is an exception to the prohibition on use or disclosure of personal information for a secondary purpose under the APPs and Privacy Act if the use or disclosure is authorised under another Australian law.^[137] This means that, for example, an agency could request and receive biometric information through the FRAUS providing there was an Australian law (that is, a Commonwealth, state or territory law) which authorised it. This would be regardless of whether this other Australian law is a proportionate limit on the right to privacy. Given that the measure facilitates the disclosure of personal information through the Hub, the adequacy of safeguards governing access to such information is an important issue from the perspective of whether the measure itself is proportionate. As such, it would have been useful if the minister's response had provided a more detailed and specific assessment of the adequacy of the Privacy Act and APPs as safeguards in the context of the measure.   

2.203         The minister's response further states that there are additional privacy safeguards, under the Intergovernmental Agreement on Identity Matching Services (IGA) and the policy and administrative arrangements, which will:

...increase the overall adequacy and effectiveness of the privacy framework governing the operation of the hub.

For example, under the IGA, the interoperability hub will not retain any facial images or other identity information – it acts purely as a router to transmit information between participating entities. The only data that will be retained by the hub will be that required for auditing purposes. This 'hub and spoke' design feature is consistent with the 'privacy by design' approach to the identity-matching services, in that it avoids the need for the Department to build a new database combining visa and citizenship, passport and state and territory identification information in one place. Instead, the interoperability hub simply provides an interface to connect end-users with separate databases, enable them to make queries against each of the databases separately but simultaneously. In turn, this minimises the amount of information retained by Home Affairs, as it is not necessary for Home Affairs to retain the information contained in the queries or responses routed through the interoperability hub to and from the databases.

Furthermore, the interoperability hub will be subject to independent penetration and vulnerability tests and security reviews, as well as a range of stringent user access arrangements under a common Face Matching Services Participation Agreement between all participating Commonwealth, state and territory agencies, which will provide a legally binding framework for participation in the services. This includes measures to protect privacy such as a set number of user accounts per agency, user training and accountability requirements, and regular auditing.

2.204         This information indicates that the design of the Hub may be such as to address some of the concerns in relation to the unauthorised access of information. Adequately addressing the potential for the misuse or unauthorised use of personal information is relevant to the proportionality of the measure. However, it is noted that administrative and policy safeguards are less stringent than the protection of statutory processes and can be amended or removed at any time. In this respect, the minister's response also notes that the bill creates offences for the unauthorised use of information shared through the Hub as well as reporting on the use of the services:   

...clause 21 creates an offence for unauthorised recording or disclosure of information by employees of Home Affairs (including secondees, and contractors working on the NDLFRS or interoperability hub). This creates an effective safeguard against unlawful interference with a person’s right to privacy by people who may have access to identification information contained in the NDLFRS or shared through the interoperability hub. Annual reporting on use of the services and a requirement for a review to be commenced within 5 years provide further safeguards to ensure that any arbitrary or unlawful interference is detected, and subject to public scrutiny.

The privacy safeguards in the Bill are also supported by a range of further measures under the IGA, the Face Matching Services Participation Agreement referred to above, and an NDLFRS Data-Hosting Agreement, which will provide the framework for Home Affairs to host state and territory data in the NDLFRS. These include annual audits of each participating agency, strict access controls on users of the services, additional authorisation requirements for the FIS, and privacy impact assessments.

2.205         These types of offences are a relevant safeguard in relation to the unauthorised use of information and accordingly assist with the proportionality of the measure. 

Availability of less rights restrictive alternatives

2.206         In relation to whether, in light of the number, types and sources of facial images and other biometric data that may be collected, accessed, used and disclosed through the Hub and the NDLFRS, the measures in the bill are the least rights restrictive approach, the minister states:

The biometric face matching services that will be provided through the interoperability hub and NDLFRS have been developed to address increasing incidences, and sophistication of, identity misuse and fraud in Australia, which has wide-ranging impacts for individual privacy, as well as law enforcement and national security.

Under the Intergovernmental Agreement to a National Identity Security Strategy agreed by the Council of Australian Governments in 2007, the Commonwealth implemented a national Document Verification Service (DVS). The DVS enables government and non-government users to compare the claimed identity information of a customer or client with a government record to verify their identity. The DVS matches key biographic details about the individual and their Australia-issued identifying credentials (such as a passport or driver licence), and provides a 'yes' or 'no' match response.

The DVS is currently used by around one hundred government entities and seven hundred businesses, including all major finance and telecommunications companies, with more than 30 million DVS transactions processed in 2017. The DVS has a limited impact on individual privacy because it only provides for one-to-one verification of a claimed identity, does not return biographic information (users receive a 'yes'/'no' match result only), and operates on a consent basis.

Whilst expanding use of the DVS has made it harder for criminals to use fictitious identities, it is also creating incentives for them to use documents in stolen identities that have genuine biographic details (which will pass a DVS check) combined with a fraudulent photo. The biographic-based DVS cannot detect these fraudulent identities, creating a need for a different solution to tackle the growing use and sophistication of these stolen identities.

The misuse of this personal information for criminal purposes causes substantial harm to the economy and individuals each year. The Identity Crime and Misuse in Australia Report 2016 prepared by the Attorney-General's Department, in conjunction with the Australian Institute of Criminology, indicated that identity crime is one of the most common and costly crimes in Australia, impacting around 1 in 20 Australians every year (and around 1 in 5 Australians throughout their lifetime), with an estimated annual cost of over $2.2 billion.

In addition to financial losses, the consequences experienced by victims of identity crime can include mental health impacts, wrongful arrest, and significant emotional distress when attempting to restore a compromised identity. In some cases where complete takeover of a victim’s identity has occurred, the report indicates that it took victims over 200 hours to obtain new credentials and resolve other issues associated with the compromise of their identity.

Identity crime is also a key enabler of serious and organised crime, including terrorism. Australians previously convicted of terrorism related offences are known to have used fraudulent identities to purchase items such as ammunition, chemicals that can be used to manufacture explosives, and mobile phones to communicate anonymously to evade detection. An operation by the joint Australian Federal Police and New South Wales Police Identity Security Strike Team found that the fraudulent identities seized from just one criminal syndicate were linked to 29 high profile criminals linked to historic or ongoing illicit drug investigations; more than $7 million in losses associated with fraud against individuals and financial institutions; and more than $50 million in funds that were laundered offshore and were likely to be proceeds of crime.

Current methods for verifying an identity or identifying an individual using facial images can be slow, difficult to audit, and often involve manual tasking between requesting agencies and data holding agencies. In some cases, this can take several days or longer. Given the significant impact that identity crime has on individuals and on the safety and security of Australians more broadly, it is imperative that government agencies, and private sector organisations (which operate at the frontline of day-to-day identity verification), have access to the modern tools necessary to continue to detect and prevent identity fraud, including using facial matching.

The face matching services that will be supported by the Bill have been developed to balance the need to address this threat with the privacy rights of individual Australians. The design of the services and the systems that support them, including the 'hub-and-spoke' model of service delivery through the interoperability hub, ensure that the services take the least rights restrictive approach to addressing the serious issue of identity fraud.

By delivering the services through the establishment of a central hub that connects to a number of separate databases, the Government has specifically avoided a need to develop a single, central database of identification information. In addition, although the Commonwealth is hosting a national driver licence database (the NDLFRS) to centralise driver licence information for the purpose of the services, under the IGA the Commonwealth will not have direct access to view the data stored within the national database. State and territory road agencies will provide their data into partitioned sections of the database, and will retain control over access to that data.

Furthermore, users access the services on a query and response basis, where a user submits query information into the hub interface, which is then transmitted to the relevant database/s for matching with the results returned to the user. This ensures that users only have access to the information that is relevant to their query, and cannot go looking for additional information directly within the databases. To provide a further safeguard for the information transmitted through the hub, the hub itself does not store any of the identification information contained in the query or the response.

Alternative options to the provision of the face matching services through the interoperability hub include a continuation of the status quo, through which agencies that need to share information for identity verification or identification purposes do so through existing manual methods of data-sharing – via hard copy or email or other electronic transmission. These ad-hoc methods vary amongst agencies, as does the security and auditability of the transmissions. By providing a single tool through which participating agencies can share identification information, the interoperability hub will improve the consistency of data-sharing and enable it to be more easily monitored, managed and audited.

The Government acknowledges that the face matching services may cause privacy concerns for some individuals. However, the services and the systems that support them have been designed to minimise those impacts and improve the security and accountability of data-sharing between participating agencies. The identification information being made available for matching through the services is already held by government across multiple agencies, and shared between agencies consistent with their legislative authorities. The face matching services will enable agencies to use that information more securely and effectively to protect Australians from national security and criminal threats, identity crime, and other threats, in the least rights restrictive way.

2.207         The minister's response provides useful information as to the extent of the concerns regarding identity fraud and the operation of the current system of identity verification. This information indicates that less rights restrictive approaches have been tried but are subject to some constraints as to their effectiveness. This includes constraints in relation to the management and auditing of requests for sharing identification information.

2.208         However, while acknowledging the constraints in the current system, concerns remain as to whether the approach proposed is the least rights restrictive approach as required to be a proportionate limitation on the right to privacy. This is because the scope of the identity matching services envisaged by the bill is broad. It would facilitate the matching of facial images of the majority of Australians across multiple government databases.

Sources of facial images

2.209         In relation to whether there are restrictions as to the sources from which facial images may be collected, the minister states:

...The databases to which the interoperability hub will initially connect will be the visa and citizenship database maintained by Home Affairs, the passports database maintained by the Department of Foreign Affairs and Trade, and the NDLFRS to be hosted by Home Affairs, containing replicated state and territory licence information. Due to some states and territories holding information about other licence types within the same databases as their driver licence information (for example, marine licences or proof of age cards), this information may also be replicated in the NDLFRS, where there is a legal basis to do so.

Although the Bill does not explicitly restrict the connection of other databases to the interoperability hub in future, the availability of other data sources would, as with all aspects of the services, be subject to the information-sharing authorisations of participating agencies. That is, an agency providing access to its database through the hub would need the legal authority to share the information with other agencies for the purposes for which the face matching services are provided, and a participating agency wishing to access the information would also need to have a legal basis to do so.

Whether the hub could be connected to other databases in the future will also be limited by the general purpose for which the face matching services are being provided, and the practicalities of facial recognition, which requires high quality images to achieve the most accurate matching results. The services are intended to assist participating agencies to determine the genuine identity of an individual, based on facial image comparison. This is why the initial databases to which the hub will connect are databases of identification information related to primary identification documents containing facial images. These databases provide a reliable source of identification information that can assist agencies to confirm a person's true identity.

The nature of the processes for obtaining these identification documents also ensures that the majority of facial photographs in these databases are of sufficiently high quality for facial recognition purposes. Facial recognition software relies heavily on the availability of high quality, front-on, unobscured facial images, to enable the most accurate matching. The integrity of the face matching services is therefore directly related to the quality of the images in the databases used for matching. This practical issue will likely limit the types of databases that may be connected to the services in future.

2.210         The fact that the bill contains no express restrictions on the databases that may be connected to the Hub, and the sources of facial images that such databases may contain, raises concerns in relation to the proportionality of the limitation imposed by the bill. In particular, it suggests that the scope of private information that may be collected, used and disclosed through the Hub may be wider than necessary to achieve the objectives of the Hub. Although agencies require their own legal authority to share images through the Hub, this does not necessarily address these concerns, as the relevant legal authority to share images may not itself be sufficiently circumscribed. For example, if an agency were to be using the Privacy Act and the APPs as a basis for its authority to collect, use and share images through the Hub,[138] this could raise concerns in relation to the right to privacy. As noted above, this is because, among other factors, the breadth of exemptions under the Privacy Act for the use and disclosure of personal information for a secondary purpose may permit such information to be disclosed in circumstances where it may not constitute a proportionate limitation on the right to privacy.[139] As a result, there is a particular concern that measures in the bill, by facilitating the sharing of such images or biometric details through the Hub, may not be a proportionate limitation on the right to privacy. It does not appear from the information provided that there are adequate and effective safeguards in such circumstances.

2.211         Further, while it is noted that there are practical restrictions on using lower quality facial images for the purposes of the Hub, this does not fully address concerns as to the potential wide range of images that may be subject to the services in the future. There are no express restrictions on the inclusion in the future of images obtained from CCTV footage, surveillance photographs, or social media.

Relevance of international jurisprudence

2.212         As to whether the measures are a proportionate limitation on the right to privacy, with reference to the potential relevance of international jurisprudence such as that outlined at [1.21] – [1.22], the minister's response states:

...the Bill contains a range of measures to ensure that the provision of each of the face matching services is proportionate to the legitimate objectives it pursues. Respectfully, the case law cited by the Committee at [1.148] – [1.149] of its [Report 3 of 2018] does not alter that fact.

A number of the cases referenced deal with the matter of collection of biometric information directly from members of the public and the retention of that information for law enforcement purposes. With reference to these cases, it is important to note that the Bill does not seek to govern the collection of identification information, including biometrics, from individuals, nor the handling of identification information by agencies other than the Department of Home Affairs (as the operator of the systems authorised by the Bill).

The face matching services authorised by the Bill are simply tools to enable agencies to more securely share and match information with each other. Participating agencies must have their own legal basis to collect, use and disclose the information both when using the services as a requesting agency or an agency providing access to its data. This also applies to their collection of the primary biometric information from an individual (such as the collection of CCTV footage or passport photos).

As part of the existing legal framework that already applies to the collection, use and disclosure of identification information by agencies that will participate in the face matching services, agencies must comply with data retention regimes that apply to them with respect to the storage and destruction of that information. This will continue to be the case with respect to identification information an agency obtains through using the services. The Face Matching Services Participation Agreement (mentioned above) that will govern participation in the services will reiterate this by requiring agencies to only retain information for as long as they require it for the purpose for which it was collected, or for the minimum period required by law.

The Committee also refers to European cases dealing with retention of communications data, and its own comments on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014. The issues raised in relation to metadata largely relate to concerns about the retention of significant amounts of data not previously retained, and the purposes for which it can be accessed.

As set out above, the Bill is not intended to deal with the collection and retention of data from individuals – it provides for information-sharing between agencies and organisations. The data intended to be transmitted through the services is information that is already collected and retained by participating agencies, and shared in accordance with their legislative authority to do so. In this way, it is not analogous with the establishment of large databases of new metadata not already retained...

The Committee also notes that the European cases relating to communications data raise the issue of access to information without a requirement for prior review by a court of independent administrative authority. The Bill is not seeking to authorise participating agencies other than Home Affairs to access identification information through the services. Those agencies will need to have their own legal basis to do so. Many participating agencies already have a legal basis to share this information, in most cases without prior review by a court or independent administrative authority. It is not appropriate for the Bill to impose this additional requirement on participating agencies – this would be a matter for other legislative processes relevant to those agencies, or their particular jurisdictions.

For the reasons set out above, and in the Statement of Compatibility with Human Rights, the measures in the Bill are a proportionate limitation on the right to privacy notwithstanding the referenced jurisprudence.

2.213         While the minister states that the bill is not intended to deal with the collection and retention of data from individuals, an assessment of whether facilitating information matching and sharing through the Hub is a proportionate limitation on the right to privacy requires consideration of the provisions of the bill in context. That is, an assessment of the proportionality of the authorisation for information sharing between agencies requires consideration of what information will be shared and to what extent. In this respect, the jurisprudence referred to points to concerns in relation to the right to privacy in circumstances where government retention of, or access to, personal information is insufficiently circumscribed. This means that, as noted above, unless the databases themselves and access to them are sufficiently circumscribed there is a risk that the Hub will facilitate information sharing in circumstances where it is not proportionate. Further, it is noted that the bill specifically contemplates the development of the NDLFRS which will contain the photographs and biometric details from state and territory driver licences. The fact that this data was originally collected by a state or territory government does not address human rights concerns about its collection into a centralised database. Additionally, it does not address concerns that such data may be searched and more easily accessed by a range of agencies for a broad number of purposes. It is noted that the obligation to ensure that legislation operates in compatibility with Australia's international obligations rests with the Commonwealth, irrespective of whether the relevant legislation or processes operate at the federal, state or territory level.

Historical facial images and vulnerable groups

2.214         In relation to the extent to which historical facial images will be subject to the Hub, and whether the bill provides adequate and effective protection against misuse and in respect of vulnerable groups, the minister states:

Historical facial images may be contained in databases to which the hub connects. However, specific safeguards exist to protect people with legally assumed or protected identities, and the nature of the services will also limit the risk of revealing a former identity in many cases.

The Bill provides specifically for Home Affairs to share information for the purposes of protecting individuals with legally assumed or protected identities. This will help to protect individuals who have been issued with an assumed or protected identity by an authorised Commonwealth, state or territory agency, from being inadvertently identified. Data about these individuals contained in each database connected to the interoperability hub is sanitised directly by the agencies responsible for the assumed/protected identity prior to agencies having access to the database through the FIS (which allows for identification of individuals without knowing their name).

In relation to other vulnerable groups that may have changed their identities but do not have a legally assumed or protected identity, the structure of the services will help to prevent their former identities from being revealed in most circumstances. For example, the most widely available service, the FVS, only provides for one-to-one verification of an identity. In order to receive a match, the user will need to provide biographic details about the individual (such as their name and date of birth), which will then be checked against one or more databases and results only returned if the biographic details match a record in the database. Although some databases may contain, and return, known alias information, this will only be returned to certain users with a need for that information (such as police) based on their user access arrangements.

Access to the FIS, which allows for identification of an unknown individual, is much more restricted to protect the privacy of individuals whose details may be returned because of a possible facial match with a person of interest. Only a prescribed set of law enforcement, national security and anti-corruption agencies will have access to this service, and within those agencies access will also be restricted to users with a need to use it and training in facial recognition. This will help to ensure that if an individual’s former identity is revealed through these services, only those with a strict need to know that information will have access to it. Other strict access controls on the FIS, including a requirement to enter the particular purpose for which it is being used in each instance, will help to prevent any misuse of the service to identify a person other than for the activities provided for by the Bill.

Under the Face Matching Services Participation Agreement, FIS access is also subject to additional supervision and authorisation requirements. All users of the FIS must be monitored by a supervising officer when using the service. In addition, a more senior authorising officer (at Australian Public Service Executive Level 2/Director level or equivalent) must approve certain FIS requests, including all queries for community safety activities, queries relating to a person under the age of 18 years, and queries to identify witnesses to a crime.

In addition, the NDLFRS, which is the only database being built specifically for use in these services, is designed only to rely on the most recent image of an individual for facial matching. In addition, this data will be updated daily through direct connections between the NDLFRS and the state and territory databases from which the data is drawn, to ensure that the images being used for matching are the most up-to-date.

These controls provide adequate and effective protection for vulnerable groups by ensuring that only those with a need to identify an individual for specific activities will have access to identification information through the services. Although it may be possible that the results of a query may reveal sensitive information about an individual, it is not possible to entirely avoid this without undermining the purpose for which the services have been developed, which is to assist with identifying and verifying the identity of individuals. The Bill, and the design of the services that will be facilitated by it, puts in place a regime of strict controls and tiered safeguards that appropriately balance the need to protect vulnerable groups with the effectiveness of the services as a tool for identity resolution.

2.215         As such, the minister's response outlines a range of legislative and operational safeguards to assist to protect the identity of vulnerable groups. In this respect, the content of the Face Matching Services Participation Agreement is likely to be of relevance to the proportionality of the measure. It is noted that while the Face Matching Services Participation Agreement has been relied upon as a safeguard in the minister's response, a copy of this agreement has not been provided to the committee. It is difficult to assess whether the Face Matching Services Participation Agreement will provide an adequate and effective safeguard without a copy of this agreement. 

Proportionality of the FIS

2.216         In relation to the FIS and whether allowing images of unknown individuals to be searched and matched against government repositories of facial images through the Hub is the least rights restrictive approach to achieve the stated objective, the minister states:

The FIS is designed to assist Australia's law enforcement, national security and anticorruption agencies to identify unknown persons of interest in the course of their identity fraud prevention and detection activities, and their national security, law enforcement, protective security and community safety activities. This could include, for example, identifying a suspect from a still image taken from CCTV footage of an armed robbery, identifying an individual suspected to be involved in terrorist activities or in [a] siege situation, or determining if a person of interest is using multiple fraudulent identities.

As detailed above, many of these agencies already share this information, and can request matching against various databases. However, this currently occurs on an ad-hoc basis which can be slow and difficult to audit. The Bill does not seek to expand the legal basis on which these agencies are authorised to share information with each other – they will still need to have a separate legal basis to do so before using the services. The services provide these agencies with a faster, secure tool for transmitting these requests to multiple data sources at once and receiving the results as quickly as possible, with a clear audit trail for accountability purposes.

In many law enforcement and national security scenarios, it is imperative that a person of interest is identified quickly to prevent a new or ongoing threat to the public. In the current environment, this is often not possible, and the various different methods agencies use to share information with each other are inefficient and make auditing and oversight difficult. By providing agencies with a tool to help them resolve the identity of a person of interest quickly, and in an auditable way, the services will help to ensure that these agencies can operate effectively and continue to keep Australians safe, whilst being accountable to the Australian public.

2.217         A measure which allows for the electronic matching of unknown individuals against government repositories of data is a significant restriction on human rights. There is potential that without sufficient safeguards such tools could be used for wide scale monitoring or surveillance. This would be a serious interference with a person's private life. The measure may also potentially have implications for other human rights including the right to freedom of assembly and right to equality and non-discrimination. While reference is made to situations of need in the context of national security or law enforcement, there is no express threshold of seriousness for agencies to access these services under the bill where they are otherwise legally authorised to do so. It means that, in the absence of specific safeguards, facilitating access to the FIS may not be the least rights restrictive approach. 

Summary of analysis

2.218         In summary, the bill would facilitate the matching and sharing of facial images and biometric data across government databases through the Hub. These databases will contain the facial images and biographical details of the vast majority of Australians. The minister's response outlines some mechanisms to assist with the proportionality of the limitation imposed on the right to privacy. This includes restricting access to more privacy intrusive services such as the FIS to particular agencies, the design of the Hub, the operation of the Face Matching Services Participation Agreement and offences for unauthorised disclosure of information. These are important safeguards in relation to the operation of the measure. However, there are concerns about whether these are sufficient to ensure that the measure is a proportionate limitation on the right to privacy. This is because there is reliance placed by the minister on the fact that an agency will need to be otherwise authorised to collect, use and disclose personal information. However, the particular concern here is that if this authorisation is not sufficiently circumscribed there is a risk that the Hub will facilitate information sharing in circumstances where it is not proportionate.

Committee response

2.219        The committee thanks the minister for his response and has concluded its examination of this issue.

2.220        The minister's response has outlined a number of safeguards in relation to the operation of the measure. However, the preceding analysis indicates that there may be a risk of incompatibility with the right to privacy where the Hub facilitates the sharing of information but the authorisation for an agency to collect, use, share, or retain facial images or biographic information is not sufficiently circumscribed.

2.221        It is noted that while the Face Matching Services Participation Agreement has been relied upon as a safeguard in the minister's response a copy of this agreement has not been provided to the committee. The committee will write separately to the minster to request a copy of the Face Matching Services Participation Agreement. It is difficult for the committee to conclude whether the Face Matching Services Participation Agreement will provide an adequate and effective safeguard without a copy of this agreement. 

Department of Foreign Affairs and Trade participation in identity matching services

2.222         The Australian Passports Amendment (Identity-Matching Services) Bill 2018 (the Passport Amendment Bill) seeks to amend the Australian Passports Act 2005 (Passports Act) to insert an additional purpose for the use and disclosure of personal information. Specifically, the Passport Amendment Bill would authorise the Department of Foreign Affairs and Trade (DFAT) to participate in a specified service to share and match information relating to the identity of a person.[140] It would also provide that the minister may arrange for the use of computer programs to make decisions or exercise powers under the Passports Act.[141]

Compatibility of the measure with the right to privacy

2.223         Permitting the minister to authorise DFAT to participate in the identity matching services and thereby share and match identity information, engages and limits the right to privacy. According to the statement of compatibility, the types of information to be disclosed and matched include biographic details such as names, dates of birth and gender as well as facial images.[142]

2.224         The statement of compatibility acknowledges that the measure engages and limits human rights but argues that this limitation is permissible.[143] It argues that the measure is 'pursuing the legitimate objective of making fast and secure identity verification available to support a range of identity-check processes'.[144] The initial analysis stated that this would appear to be a description of the process the measure will facilitate rather than an explanation of why this process pursues a legitimate objective for the purposes of international human rights law. For a limitation on a right to seek to achieve a legitimate objective, it must be demonstrated that the objective is one that addresses an area of public or social concern that is pressing and substantial enough to warrant limiting the right. In this respect, the statement of compatibility goes on to state the services will provide a tool in support of the legitimate objective of 'combatting identity crime and supporting national security, law enforcement and community safety'.[145] As set out above, these are likely to be legitimate objectives for the purposes of international human rights law. It also appears that the measure is rationally connected to these objectives.

2.225         However, as outlined above at [2.182]-[2.192], there are serious questions about the proportionality of the limitation the identity matching services impose on the right to privacy. These concerns apply equally in relation to DFAT sharing and matching personal information through such services.

2.226         Additionally, the measure will authorise the sharing and matching of DFAT's repositories of personal information including passport photographs and biographic information. This means that the photographs and biometric data of a significant proportion of the population including children will be subject to the identity matching services through the Hub. As noted in the initial analysis, there is a serious question as to whether having databases of, and facilitating access to, facial images of a very significant portion of the population in case they are needed is the least rights restrictive approach to achieving the stated objectives of the measure. 

2.227         Beyond stating that there will be policy and administrative safeguards, the statement of compatibility provides limited information as to the nature of any safeguards that will be in place with respect to DFAT sharing personal information via the identity matching services. Accordingly, it was unclear whether there are adequate and effective safeguards in place to ensure that the limitation on human rights is proportionate or that the measure is sufficiently circumscribed.

2.228         The committee therefore requested the advice of the Minister for Foreign Affairs as to whether the limitations on the right to privacy imposed by the measures in the Passport Amendment Bill are reasonable and proportionate to achieve the stated objective. This includes information in relation to:

• whether the Privacy Act 1988 (Privacy Act) will apply to DFAT's disclosure of photographs and biographical information and, if so, whether it will act as an adequate and effective safeguard for the purposes of international human rights law noting the various exceptions to the collection, use and disclosure of information under the Privacy Act;
• whether the Passport Amendment Bill contains adequate and effective safeguards and is sufficiently circumscribed for the purposes of international human rights law;
• whether, in light of the number, types and sources of facial images and other biometric data that may be shared and matched, these measures represent the least rights restrictive approach to achieving the stated objectives (including whether having facial images of the vast majority of Australians searchable via the identity matching services is the least rights restrictive approach);
• whether the measure is a proportionate limitation on the right to privacy with reference to the potential relevance of international jurisprudence such as that outlined at [2.190]-[2.191];
• the extent to which DFAT's historical facial images will be subject to the identity matching services, and whether the Passport Amendment Bill or other Australian laws provide adequate and effective protection against misuse and in respect of vulnerable groups; and
• in relation to the Face Identification Service (FIS), whether allowing images of unknown individuals to be searched and matched against DFAT facial images through the Hub is the least rights restrictive approach to achieve the stated objective.

Minister for Foreign Affairs and Trade's response

2.229         The minister's response confirms that DFAT's disclosure of photographs and biographical information will be subject to the Privacy Act. The application of the Privacy Act is relevant to the proportionality of the limitation on the right to privacy. This is because the Privacy Act may or may not provide a relevant safeguard in the context of the measure.

2.230         Consistently with the Minister for Home Affair's response discussed above, the response from the Minister for Foreign Affairs and trade argues the 'adequacy and effectiveness of the privacy safeguards contained in the Privacy Act, including the appropriateness of the exemptions to restrictions on collection, use and disclosure of information under the Privacy Act, have been considered by the Parliament in the development of the Act and subsequent amendments to it'. In this respect, as noted above, the fact that the Privacy Act has previously been considered by parliament or that it applies across government agencies does not fully address whether the provisions of the Privacy Act provide an adequate safeguard for the purposes of international human rights law. As noted above and in the initial analysis, the APPs contain a number of exceptions to the prohibition on use or disclosure of personal information for a secondary purpose. The particular concern is that the breadth of some of these exceptions in the context of the measure may facilitate the disclosure of personal information in circumstances that are not compatible with the right to privacy. Of relevance to the scope of such exemptions, the minister's response states that:  

The Privacy Act is not the only legislation relevant to the collection, use and disclosure of photographs and biographical information by DFAT in the passports context. Australian Privacy Principle 6.2(b) provides, relevantly, that personal information (including sensitive information) may be used and disclosed for a secondary purpose (to the purpose for which the information was collected, in this case being the processing of an application for an Australian travel document) where it is required or authorised by or under an Australian law.

2.231         This means that, for example, an agency could request and receive passport information such as biographic details and photographs providing there was an Australian law (that is, a Commonwealth, state or territory law) which authorised it. This would be regardless of whether this other Australian law is a proportionate limit on the right to privacy. Accordingly, sharing information in such circumstances may not be a proportionate limit on the right to privacy.

2.232         Further, the response does not directly address whether the authorisation provided to DFAT under the bill to participate in the identity matching services could itself constitute such an exemption for the purposes of the prohibition on disclosure for a secondary purpose under the APPs and Privacy Act. That is, there is a question as to whether an agency, to which the APPs apply, would be permitted to share photographs and biographical information with DFAT because it is 'authorised by or under' the bill. In this respect, the minister's response explains states that:

The Bill is not seeking to authorise participating agencies to "access" DFAT's identification information through the services. No broad "access" will be possible under the services that is not consistent with the hub and spoke model under which participating data holding agencies maintain control over their data holdings. Rather, a request for disclosure of certain information will be made to DFAT by a requesting agency and DFAT will either disclose that information or not pursuant to pre-agreed conditions. Those agencies requesting information from DFAT will need to have their own legal basis to collect information that DFAT discloses to it. Most (if not all) participating agencies already have a legal basis to collect this information from DFAT, in most cases without prior review by a court or independent administrative authority...

2.233         This suggests that the bill is not intended to authorise disclosure for the purposes of the Privacy Act. It would have been useful to the committee's analysis if questions regarding the interaction between the bill and the Privacy Act had been more fully explored in the minister's response. 

2.234         As to whether the Passport Amendment Bill otherwise contains adequate and effective safeguards and is sufficiently circumscribed for the purposes of international human rights law, the minister's response provides the following information:

The Australian Passports Act 2005 (Cth) and Australian Passports Determination 2015 (Cth) relevantly provide the primary legislative framework for the collection, use and disclosure of passport-related personal information and sensitive information. The Australian Passports Act 2005 (Cth) and its related Australian Passports Determination 2015 (Cth) set out various permitted collections, uses and disclosures of personal information and sensitive information in the passports context and already provide a legal basis, although not sufficiently workable, for most of the types of disclosures envisaged by DFAT's participation in the biometric face matching services. The primary intention of the Bill is to augment into one, workable, comprehensive legal basis the various existing, but fragmented, legal bases that currently exist to permit disclosures of passport-related information (addressed below).

The Bill provides for DFAT's participation in identity-matching services that will be subject to other privacy safeguards under the Intergovernmental Agreement on Identity Matching Services (IGA). In addition, the policy and administrative privacy safeguards, including requirements for privacy impact assessments before agencies access the services and compliance audits, will help to ensure the use of the services remains proportionate to the need, and prevent any misuse of identification information.

The principle governing these arrangements is that the minimum necessary information is disclosed to meet the legitimate purpose of the services. The IGA provides that strict privacy controls, accountability and transparency must apply to all the services. Within this framework, data-holding agencies retain discretion to determine specific purposes for which, entities to which, and other circumstances under which, they make their data available through the services.

These and other privacy, accountability and transparency measures provide appropriate safeguards against unnecessary impositions on the right to privacy as a result of the Minister making Australian travel document data available for all the purposes of, and by the automated means intrinsic to, the services.

The Privacy Act, the Australian Passports Act 2005 (Cth) and the Australian Passports Determination 2015 (Cth) already provide various legal bases to cover DFAT's disclosures of passport-related personal information and sensitive information to agencies and organisations participating in the biometric face matching services. However, legal complexities inherent to applying various existing legal bases in the context of the biometric face matching services (including the diverse nature of participating organisations and the multiple purposes for disclosure) means the only practical way for DFAT to participate in the biometric face matching services as a data holding agency is to augment the various existing legal bases for disclosure into a single, comprehensive legal basis for disclosure for the purposes of participating in the biometric face matching services, as is proposed by the Bill.

The Bill's provision for certain automated decision-making in relation to passport-related information disclosures is intended to supplement DFAT's current ability to make manual decisions to disclose personal or sensitive information so as to allow DFAT's participation in the proposed automated 'hub and spoke' model inherent to the biometric face matching services. The Department of Home Affairs has outlined separately the automated nature of the biometric face matching service's operation, and the reasons for this.

The safeguards inherent to the use, collection and disclosure of passport-related personal and sensitive information have already been assessed as adequate and effective by parliament in the context of the Australian Passports Act 2005 (Cth) and its related Australian Passports Determination 2015 (Cth). The Bill augments the existing legal framework. As such, those privacy safeguards already assessed as adequate and effective in the context of disclosures of passport information will continue to be adequate and effective.

2.235         The minister's response outlines some relevant safeguards. However, it is noted that the response does not specifically assess whether the use, collection and disclosure of information under existing laws imposes a proportionate limitation on human rights. An assessment of the proportionality of DFAT's participation requires consideration of what information will be shared through the Hub and to what extent. For example, if the initial collection of personal information was not proportionate then the sharing of such information may not be proportionate either. In this respect, the Australian Passports Act 2005 was legislated prior to the establishment of the committee, and for that reason, the scheme has never been required to be subject to a foundational human rights compatibility assessment in accordance with the terms of the Human Rights (Parliamentary Scrutiny) Act 2011. Accordingly, it is unclear on what basis the minister is making the claim that 'those privacy safeguards already assessed as adequate and effective in the context of disclosures of passport information will continue to be adequate and effective.' It is noted that merely because parliament considered and passed particular legislation does not mean that it necessarily complies with Australia's obligations under international human rights law.

2.236         Consistent with the response from the Minister for Home Affairs discussed above, the foreign minister's response provides information as to the scope of concerns regarding identity fraud and the operation of the current system of identity verification. As noted above, this information indicates that less rights restrictive approaches have been tried but are subject to some constraints as to their effectiveness. This includes constraints in relation to the management and auditing of requests for sharing identification information. However, while acknowledging the constraints in the current system, there are still some concerns as to whether the approach proposed is the least rights restrictive approach as required to be a proportionate limitation on the right to privacy. This is because the scope of the identity matching services envisaged by the bill is very broad. Specifically, DFAT's participation in the services, by including passport information, would allow for the matching of the facial images of a significant number of Australians.[146]

2.237         In relation to whether the measure is a proportionate limitation on the right to privacy with reference to the potential relevance of international jurisprudence outlined at  [2.190]-[2.191], the minister's response states:

...Respectfully, the case law cited by the Committee at [1.148] - [1.149] of its Report does not alter that fact.

A number of the cases referenced deal with the matter of collection of biometric information directly from members of the public and the retention of that information for law enforcement purposes. The identity-matching services that the Bill allows DFAT to participate in are simply tools to enable agencies to more securely disclose (and collect) information to each other.

As part of the existing legal framework that already applies to the collection, use and disclosure of identification information in the passport context, DFAT will still have to comply with data retention regimes that apply to it with respect to the storage and destruction of that information.

Furthermore, the services will be subject to a range of stringent user access arrangements under a common Face Matching Services Participation Agreement between all participating Commonwealth, state and territory agencies, which will provide a legally binding framework for participation. This will include, inter alia, requiring agencies to only retain information for as long as they require it for the purpose for which it was collected, or for the minimum period required by law.

The Committee also refers to European cases dealing with retention of communications data, and its own comments on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014. The issues raised in relation to metadata largely relate to concerns about the retention of significant amounts of data not previously retained, and the purposes for which it can be accessed.

As set out above, the Bill is not intended to deal with the collection and retention of data from individuals - it provides for information-sharing between DFAT and other participating agencies. The data to be transmitted through the services is information that DFAT will have already collected from individuals with their consent and retained. In this way, the services are not analogous with the establishment of large databases of new metadata not already retained.

As each data holding agency, including DFAT, will retain control over the data it holds (including ensuring adequately [sic] information security measures are in place pursuant to Australian Privacy Principle 11), no new data mining or metadata issues should arise other than those which already exist in relation to DFAT's collection, use and disclosure of passport-related information under existing legal authority.

The Committee also notes that the European cases relating to communications data raise the issue of access to information without a requirement for prior review by a court of independent administrative authority. The Bill is not seeking to authorise participating agencies to "access" DFAT's identification information through the services. No broad "access" will be possible under the services that is not consistent with the hub and spoke model under which participating data holding agencies maintain control over their data holdings. Rather, a request for disclosure of certain information will be made to DFAT by a requesting agency and DFAT will either disclose that information or not pursuant to pre-agreed conditions. Those agencies requesting information from DFAT will need to have their own legal basis to collect information that DFAT discloses to it. Most (if not all) participating agencies already have a legal basis to collect this information from DFAT, in most cases without prior review by a court or independent administrative authority. It is not appropriate for the Bill to impose this additional requirement on participating agencies - this would be a matter for other legislative processes relevant to those agencies, or their particular jurisdictions.

2.238         While noting that the response outlines some safeguards, the jurisprudence referred to points to concerns in relation to the right to privacy in circumstances where government retention of, or access to, personal information is insufficiently circumscribed. As noted above, the fact that collection and retention of personal information already occurs does not address whether these regimes are a proportionate limitation on the right to privacy. Indeed, the measure in this bill would facilitate easier access to DFAT's databases of passport information. Unless the databases themselves and access to them are sufficiently circumscribed there is a risk that DFAT could share passport information in circumstances where it is not proportionate. 

2.239         In relation to the extent to which DFAT's historical facial images will be subject to the identity matching services, the minister's response states that 'acknowledging the importance of providing adequate and effective protection against misuse and in respect of vulnerable groups, DFAT will only provide access to individuals' most recent facial images through the services'. This will assist with the proportionality of the limitation. The minister's response further outlines a range of legislative and operational safeguards to assist to protect the identity of vulnerable groups including the content of Face Matching Services Participation Agreement.

2.240         In relation to the FIS and whether allowing images of unknown individuals to be searched and matched against DFAT facial images through the Hub is the least rights restrictive approach to achieve the stated objective, the minister provides the following information:

The FIS is designed to assist Australia's law enforcement, national security and anticorruption agencies to identify unknown persons of interest in the course of their identity fraud prevention and detection activities, and their national security, law enforcement, protective security and community safety activities. This could include, for example, identifying a suspect from a still image taken from CCTV footage of an armed robbery, identifying an individual suspected to be involved in terrorist activities or in siege situation, or determining if a person of interest is using multiple fraudulent identities.

In recognition of the greater privacy implications of the FIS, it will only be able to be used by a restricted and specific list of agencies set out in the Department of Home Affairs' ldentity-Matching Services Bill 2018. Any substantive change to the breadth or nature of the agencies that have access to the FIS will need to be made by an amendment to the Act, rather than through the making of a rule. This will help to prevent 'scope creep' and will ensure appropriate Parliamentary oversight of any substantive changes to FIS access.

Many of these agencies already share this information, and can request matching against various databases. However, this currently occurs on an ad-hoc basis which can be slow and difficult to audit. DFAT's participation in the identity-matching services will provide it with a faster, secure tool for transmitting these requests to multiple data sources at once and receiving the results as quickly as possible, with a clear audit trail for accountability purposes.

ln many law enforcement and national security scenarios, it is imperative that a person of interest is identified quickly to prevent a new or ongoing threat to the public. ln the current environment, this is often not possible, and the various different methods agencies use to share information with each other are inefficient and make auditing and oversight difficult. By providing agencies with a tool to help them resolve the identity of a person of interest quickly, and in an auditable way, the services will help to ensure that these agencies can operate effectively and continue to keep Australians safe, whilst being accountable to the Australian public.

2.241         Restricting the agencies that may access more privacy intrusive services such as the FIS is a relevant safeguard in relation to the proportionality of the measure. However, it is noted that a measure which allows for the electronic matching of unknown individuals against DFAT passport databases is restrictive of human rights. While reference is made to situations of need in the context of national security or law enforcement, there is no express threshold of seriousness before an agency can use the FIS in circumstances where they are otherwise legally authorised to do so. It means that, in the absence of specific safeguards, sharing passport information may not be the least rights restrictive approach. 

2.242         In summary, the bill would authorise DFAT to participate in the identity matching services which allow for the matching and sharing of DFAT's databases through the Hub. These databases will contain the facial images and biographical details of many Australians, including children. The minister's response outlines some mechanisms to assist with the proportionality of the limitation imposed on the right to privacy. This includes restricting access to more privacy intrusive services such as the FIS to particular agencies, the design of the Hub, the operation of the Face Matching Services Participation Agreement and offences for unauthorised disclosure of information. These are important safeguards in relation to the operation of the measure. However, as outlined above, there are concerns about whether these are sufficient to ensure that DFAT's participation in the services is a proportionate limitation on the right to privacy. This is because there is reliance placed by the minister on the fact that an agency will need to be otherwise authorised to collect, use and disclose personal information. However, if this authorisation is not sufficiently circumscribed there is a risk that the Hub will facilitate information sharing in circumstances where it is not proportionate.

Committee response

2.243        The committee thanks the minister for her response and has concluded its examination of this issue.

2.244        The minister's response has outlined a number of safeguards in relation to the operation of the measure. However, the preceding analysis indicates that there may be a risk of incompatibility with the right to privacy to the extent that DFAT's participation in the services facilitates the sharing of its information in circumstances where the authorisation for an agency to collect, use, share, or retain facial images or biographic information is not sufficiently circumscribed.

2.245        The Australian Passports Act 2005 was legislated prior to the establishment of the committee and has never been subject to a foundational human rights compatibility assessment in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. It may benefit from a foundational review.    

Migration (IMMI 18/003: Specified courses and exams for registration as a migration agent) Instrument 2018 [F2017L01708]

Purpose	Prescribes tertiary courses that must be completed, and exams that must be passed, in order to register as a migration agent.  Prescribes the English language tests that certain persons must take in order to register as a migration agent, and the minimum scores that a person must achieve
Portfolio	Home Affairs
Authorising legislation	Migration Agents Regulations 1998
Last day to disallow	15 sitting days after tabling (tabled Senate and House of Representatives on 5 February 2018)
Rights	Equality and non-discrimination (see Appendix 2)
Previous reports	3 & 4 of 2018
Status	Concluded examination

Background

2.246         The committee first reported on the instrument in its Report 3 of 2018, and requested a response from the Minister for Home Affairs by 11 April 2018.[147] The minister's response was received on 30 April 2018 and discussed in Report 4 of 2018.[148]

2.247         The committee requested a further response from the minister by 23 May 2018. A response from the Assistant Minister for Home Affairs was received on
30 May 2018. The response is discussed below and is reproduced in full at
Appendix 3.

Requirement for certain persons to complete additional English language exams to register as a migration agent

2.248         Relevantly, section 7(2) of the Migration (IMMI 18/003: Specified courses and exams for registration as a migration agent) Instrument 2018 [F2017L01708] (the instrument) introduces new language proficiency exams for persons seeking to register as a migration agent unless specified residency and study requirements are met. Persons are exempt from language proficiency exams if they have successfully met specified requirements in Australia, New Zealand, the United Kingdom, the Republic of Ireland, the United States of America, the Republic of South Africa or Canada as follows: 

• secondary school studies to the equivalent of Australian Year 12 level with minimum 4 years secondary school or equivalent study, and have successfully completed a Bachelor degree or higher; or
• they have successfully completed the equivalent of secondary school studies to at least Australian Year 10 with at least 10 years of primary or secondary schooling, or their secondary school studies and degree; and
• while completing their primary or secondary schooling, or their secondary school studies and degree, they were resident in one of those countries.

2.249         If these requirements are not met, then section 8 of the instrument provides that persons who are required to complete the English-language proficiency test must achieve:

• in the International English Language Testing System (IELTS), an overall score of at least 7, with a minimum score of 6.5 in each component of the test (speaking, listening, reading and writing); or
• in the Test of English as a Foreign Language internet-based test (TOEFL iBT), an overall score of at least 94, with minimum scores of 20 in speaking and listening, 19 in reading, and 24 in writing.

Compatibility of the measure with the right to equality and non-discrimination

2.250         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 are entitled without discrimination to the equal and non-discriminatory protection of the law.

2.251         'Discrimination' encompasses both measures that have a discriminatory intent (direct discrimination) and measures which have a discriminatory effect on the enjoyment of rights (indirect discrimination).[149] The UN Human Rights Committee has described indirect discrimination as 'a rule or measure that is neutral at face value or without intent to discriminate', which exclusively or disproportionately affects people with a particular personal attribute (for example, national origin or language).[150]

2.252         The initial human rights analysis stated that requiring certain persons to complete an English language proficiency test to be eligible for registration as a migration agent engages the right to equality and non-discrimination on the basis of language competency or 'other status'. It may also indirectly discriminate on the basis of national origin as it may disproportionately impact individuals from countries where English is not a national language or widely spoken.

2.253         Further, by providing that persons who completed their education and were resident in specified countries are not required to undertake a language proficiency test, the measure may also further indirectly discriminate on the basis of national origin. This is because it will have a disproportionate negative effect on individuals from countries that are not excused from the English language proficiency test requirement. Where a measure impacts on particular groups disproportionately, it establishes prima facie that there may be indirect discrimination.^[151]

2.254         The statement of compatibility states that the instrument does not engage any of the applicable rights or freedoms,[152] and so does not provide an assessment of whether the right to equality and non-discrimination is engaged by the measure.  

2.255         Under international human rights law, 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.[153]

2.256         The statement of compatibility states that the objective of the instrument is to 'strengthen the educational qualifications of migration agents...to ensure that their clients receive high standards of service'.[154] The initial analysis stated that these are likely to be legitimate objectives for the purposes of human rights law, particularly given the complexities of the Australian migration system and the potentially serious effect that poor advice can have on individuals.[155]

2.257         Notwithstanding the legitimate objectives of the measure, it was unclear whether the measure is effective to achieve (that is, rationally connected to) and proportionate to that objective. In this respect, it was acknowledged that a level of proficiency in English may be needed to practise effectively as a migration agent in Australia. Requiring a person either to complete all or part of their education in English, or to complete an English-language proficiency test, may therefore be an effective means of ensuring the necessary level of proficiency.

2.258         However, the initial analysis noted that the IELTS and the TOEFL iBT may exceed those requirements necessary to enter tertiary study.^[156] It was unclear from the information provided that merely completing 10 years of primary and secondary education, to the equivalent of Australian Year 10 level, would ensure a person possesses a level of English proficiency equivalent to that of a person who achieves the required IELTS or TOEFL iBT scores. Consequently, it appears possible that persons who are not educated in Australia, or in another prescribed country, may be required to meet a potentially higher standard of English language proficiency than their Australian (or prescribed country) counterparts in order to be eligible for registration as a migration agent. This raised concerns as to whether the differential requirements would be effective to achieve the stated objectives, and whether the differential requirements are based on reasonable and objective criteria.

2.259         Similarly, it was unclear from the information provided that the exemption for a person who completed their school education at an institution in one of the prescribed countries where they were resident is rationally connected to the stated objective. This is because it was unclear that this would necessarily ensure the person's proficiency in English at the required level.

2.260         In relation to the proportionality of the measure, the statement of compatibility states:

Strengthening educational requirements for the migration agent industry does not exclude applicants from the profession, provided they meet the applicable standards, which are reasonable and transparent.[157]

2.261         However, there are questions as to whether the application of these standards is sufficiently circumscribed with respect to the stated objective of the measure. For example, the instrument would require a person to complete an English proficiency test irrespective of whether their education was primarily in English, if the person did not complete their education in a prescribed country. For example, English may be the primary language used in an institution (for example, an international school) in a country that is not a prescribed country. Further, a number of universities consider that secondary and tertiary studies completed in English from countries that are not listed in the instrument satisfy the English proficiency requirements necessary for entry into the migration law program.[158] This raised questions as to whether requiring a person who was educated primarily in English to also sit a proficiency test is the least rights-restrictive means of achieving the stated objectives of the measure.

2.262         Accordingly, the committee requested the advice of the minister as to:

• how the measures are effective to achieve (that is, rationally connected to) the stated objectives; and
• whether the measures are reasonable and proportionate to achieving the stated objectives of the instrument (including how the measures are based on reasonable and objective criteria, whether the measures are the least rights-restrictive way of achieving the stated objective and the existence of any safeguards).

Minister's response

2.263         In relation to the right to equality and non-discrimination engaged by the instrument and discussed in the previous analysis, the minister provides the following general information:

Guided by the 2014 Kendall Review, the Government is committed to protecting vulnerable visa applicants by ensuring that new and re-registering migration agents be required to prove that they have English language proficiency. The amendments made to the English language tests in IMMI 18/003: Specified courses and exams for registration as a migration agent instrument were a correction to the previous instrument IMMI 12/097 Prescribed courses and exams for applicants for registration as a Migration Agent (Regulation 5). The Test of English as a Foreign Language (TOEFL) scores set out in the previous instrument 12/097 (with the exception of the writing subtest) were incorrect and did not align with the benchmarked International English Language Testing System (IELTS-TOEFL) equivalent scores.

With IMMI 12/097 being repealed and replaced to reflect the new educational requirements for migration agents, it was an opportune time to revise the TOEFL scores. The TOEFL scores in IMMI 18/003 align with the benchmarks for all departmentally accepted English language tests.

The broad application of these accepted English language proficiency levels for registered migration agents (which aligns with benchmarks required for certain visa applicants) is non-discriminatory. The measures are also reasonable and proportionate to ensure the quality and standards of advice to protect clients of migration agents.

2.264         As set out in the committee's initial report, it is acknowledged that the measure appears to pursue a legitimate objective for the purposes of international human rights law. However, as set out in detail above at [2.250]-[2.261] there are questions as to whether the measure as formulated is rationally connected and proportionate to that objective. In this respect while the minister's response states that the measure is non-discriminatory, no further information is provided in support of this statement. The information provided by the minister otherwise does not substantively engage with the committee's inquiries and does not provide sufficient information for the committee to consider whether the instrument is compatible with human rights. 

2.265         The Human Rights (Parliamentary Scrutiny) Act 2011 requires a statement of compatibility to include an assessment of whether the legislative instrument is compatible with human rights,[159] and this has not occurred in relation to the statement of compatibility accompanying the instrument that is the subject of this analysis. As noted in the Committee's Guidance Note 1, the committee considers that statements of compatibility are essential to the examination of human rights in the legislative process, should identify the rights engaged by the instrument, and should provide a detailed and evidence-based assessment of the measures against the limitation criteria where applicable. In the absence of such information in the statement of compatibility, the committee may seek additional information from the proponent of the instrument and it is the committee's usual expectation that the minister's response would substantively address the committee's inquiries. In other words, the committee requires a more detailed assessment of the human rights engaged by the instruments beyond the minister's statement that the measure is non-discriminatory.

2.266         The committee therefore restated its request for the advice of the minister in relation to the compatibility of the measure with the right to equality and non-discrimination, including:

• how the measures are effective to achieve (that is, rationally connected to) the stated objectives; and
• whether the measures are reasonable and proportionate to achieving the stated objectives of the instrument (including how the measures are based on reasonable and objective criteria, whether the measures are the least rights-restrictive way of achieving the stated objective and the existence of any safeguards).

Assistant minister's response

2.267         The assistant minister explains the importance of migration agents having sufficient English language skills:

The Department seeks to ensure that the migration agent industry is able to service a clientele that may have little or no English language capability. The capacity of a migration agent to convey instructions and information to and from the Department on behalf of a vulnerable client is often critical to the outcome of the visa application.

The duties of migration agents include, not just the completing of forms and the handling of funds on behalf of visa applicants, but also interpretation of complex legislation and its application to the circumstances of a particular applicant. Migration agents are also required to provide clear advice and information, prepare detailed submissions and review of visa applications provided for in the Migration Act 1958 (Cth).

2.268         Noting the potential vulnerabilities of clients and the type of work performed, this information indicates that migration agents are likely to require well-developed English language skills. As set out in the previous human rights analysis, on this basis, the measure addresses the legitimate objective of ensuring the clients of migration agents receive high standards of service as well as conveying instructions to clients.

2.269         The assistant minister's response argues that requiring a person to either complete the English-language proficiency test or have met residency and education requirements in specified countries is rationally connected to its stated objective:

The current legislative instrument states that if a person is not in a class of persons specified, an English language proficiency exam is required to be completed. In order for an individual to be exempt from sitting the English language exam, the individual must have been resident in one of the specified countries (Australia, New Zealand, United Kingdom, Republic of Ireland, United States of America, Republic of South Africa or Canada) for the duration of the specified schooling. This is similar to previous legislative instruments introduced in 2012 (FR2012L01932 IMMI 12/097 and prior to that F2012L01343 IMMI 12/035) which also included the specified class of persons.

The Department does not consider the specified class of persons being exempt from undergoing the English language exam as unreasonable or disproportionate. Requiring migration agent applicants who have not completed educational requirements whilst being resident in the five specified countries [Australia, New Zealand, United Kingdom, Republic of Ireland, United States of America, Republic of South Africa or Canada] to complete the English language exam, is rationally connected to the legitimate aim of ensuring migration agents are able to convey instructions and information to, and from, the Department on behalf of their clients.

The New Zealand Immigration Advisers Authority also requires educational requirements to be delivered in the English language and completed while applicants are living in the specified countries (New Zealand, Australia, Canada, Ireland, UK and the US), in their Competency Standard 5.

Similarly, to Australia, English is the common language (ie the majority of the population are native English speakers) in the USA, UK, Canada, Ireland and New Zealand. According to publically available information in 2015, 54 sovereign states and 27 non-sovereign entities had English as an official language, however only six had English as the common language (Australia, USA, UK, Canada, Ireland and New Zealand). A common language in any given country gives prominence over other languages spoken inside the country by the people. Often it is one that is spoken by the majority of the population of the country (e.g. Australia, USA). Therefore it is considered by the Department that people from the specified countries are more likely to meet the English language requirement.

2.270         The information provided in the assistant minister's response indicates there is a strong correlation between having been resident in, and completing schooling in, a number of the specified countries and possessing requisite English language skills. Put another way, individuals who have been resident in and completed schooling in English in countries where English is the 'common language' or is widely spoken will be likely to have significant English language skills. However, the assistant minister's response does not specifically address the circumstances of the Republic of South Africa, which is specified under the instrument, and whether he also considers that English is the common language in South Africa. Yet, on balance, in most circumstances, the requirement of either having completed an English language test or satisfying schooling in English and residency requirements in the specified countries is likely to be rationally connected to the stated objective of the measure.   

2.271         In relation to the proportionality of the measure, the assistant minister's response further explains, in his view, why residency and schooling in specified countries are a reasonable substitute for having completed an English language proficiency test:  

The intended purpose of this requirement is to reduce the unnecessary regulatory burden on migration agent applicants who were educated in English in one of the specified countries whereby the need for them to undertake English testing is unnecessary duplication. The Department's recognition of English as a 'common language' in these countries and acknowledgment that a level of education in English contributes to higher English language proficiency, achieves a balance between the necessity of migration advice standards assurance and reduction of regulatory burden.

The 2007-08 Review of Statutory Self-Regulation of the Migration Advice Profession (the Review) recommended that English language proficiency equivalent to an IELTS score of 7 should be the required level of English proficiency for both new and repeat applicants for registration as a migration agent (recommendation 16).

2.272         The assistant minister's response further explains that residency and schooling in English in the specified countries shows that the individual possesses a level of English equivalent to IELTS 7 and 'therefore does not need to be subject to over regulation through English testing'. As such, the assistant minister's response indicates that persons who are not educated in Australia, or in another prescribed country, are not required to meet a higher standard of English language proficiency than their Australian (or prescribed country) counterparts in order to be eligible for registration as a migration agent. This information addresses some of the concerns about the proportionality of the measure and differential treatment.  

2.273         In this respect, the assistant minister's response further states that the Department 'relies on both the specified countries and the fact that individual's education was conducted in English as a reliable assurance that the potential migration agent will have English language proficiency'. It is acknowledged that a criteria, which requires both residence in particular countries where English is widely spoken and education in English, may be capable of being reasonable and objective. However, in this respect, the assistant minister's response has not provided sufficient information as to why some English speaking countries have been specified and others have not. For example, it is unclear why South Africa has been specified noting it is also unclear whether it meets the minister's own criteria of being a country where English is a 'common language'. It may be that there are other factors that mean that the specification of the seven countries (as opposed to other countries where English is widely spoken) is based on reasonable and objective criteria. For example, an assessment may have been made about meeting certain educational standards, literacy levels or the prominence of English in those countries. As this kind of information has not been provided, it remains unclear whether the requirements are based on reasonable and objective criteria.

Committee response

2.274        The committee thanks the assistant minister for his response and has concluded its examination of this issue.

2.275        The measure may be capable of being based on reasonable and objective criteria, noting that to qualify for an exemption from having to complete an English proficiency test a person must have resided in a specified country and have been educated in English in that country. However, it is unclear from the information provided whether the specification of these particular countries is based on reasonable and objective criteria. On this basis, it is not possible to conclude that the measure is compatible with the right to equality and non-discrimination.

Offshore Petroleum and Greenhouse Gas Storage Amendment (Miscellaneous Amendments) Bill 2018

Purpose	To transfer oversight for offshore greenhouse gas storage environmental management from the minister to the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA)
Portfolio	Industry, Innovation and Science
Introduced	House of Representatives, 28 March 2018
Rights	Presumption of innocence (see Appendix 2)
Previous report	4 of 2017
Status	Concluded examination

Background

2.276         The committee first reported on the bill in its Report 4 of 2018, and requested a response from the Minister for Resources and Northern Australia by
23 May 2018.[160]

2.277         The minister's response to the committee's inquiries, received on 23 May, is discussed below and is reproduced in full at Appendix 3.

Reverse legal burden offences

2.278         The bill contains a number of offence provisions which contain offence-specific defences:

• it is a defence to the offence of breaching a direction given by NOPSEMA, if the defendant proves that they took all reasonable steps to comply with the direction;[161] and
• it is a defence to the offence of refusing or failing to do anything required by a 'well integrity law' if the defendant proves that it was not practicable to do that thing because of an emergency prevailing at the relevant time.[162]

2.279         In respect of each of these defences, the defendant bears a legal burden of proof.[163] This means that the defendant rather than the prosecution must prove the existence of the matters relevant to the defence on the balance of probabilities.[164]

Compatibility of the measures with the right to be presumed innocent 

2.280         The right to be presumed innocent until proven guilty according to law usually requires that the prosecution prove each element of the offence (including fault elements and physical elements).[165]

2.281         An offence provision which requires the defendant to carry an evidential or legal burden of proof (commonly referred to as 'a reverse burden') with regard to the existence of some fact also engages and limits the presumption of innocence. This is because a defendant's failure to discharge the burden of proof may permit their conviction despite reasonable doubt as to their guilt. Similarly, a statutory exception, defence or excuse may effectively reverse the burden of proof, such that a defendant's failure to make out the defence may permit their conviction despite reasonable doubt. These provisions must be considered as part of a contextual and substantive assessment of potential limitations on the right to be presumed innocent in the context of an offence provision.

2.282         Reverse burden offences will not necessarily be inconsistent with the presumption of innocence provided that they are within reasonable limits which take into account the importance of the objective being sought and maintain the defendant's right to a defence. In other words, such provisions must pursue a legitimate objective, be rationally connected to that objective and be a proportionate means of achieving that objective.

2.283         As noted in the initial human rights analysis, the statement of compatibility acknowledges that the offence-specific defences (which require the defendant to carry a reverse legal burden) engage and limit the right to be presumed innocent, but argues that this reverse burden is permissible. The statement of compatibility explains that in each case 'the burden is reversed because the matter is likely to be exclusively within the knowledge of the defendant, particularly given the remote nature of offshore operations'.[166] However, it was unclear from the information provided why the offence provision reverses the legal rather than merely the evidential burden of proof. This raised concerns that the reverse burden offences may not be the least rights restrictive approach to achieving the objective of the proposed legislative regime. Further, the statement of compatibility does not expressly explain how the reverse burden offences pursue a legitimate objective or are rationally connected to this objective.

2.284         The committee therefore requested the advice of the minister as to:

• whether the measure is aimed at achieving a legitimate objective for the purposes of human rights law;
• how the measure is effective to achieve (that is, rationally connected to) that objective;
• whether the limitation is a reasonable and proportionate measure to achieve the stated objective (including whether it is the least rights restrictive approach and whether reversing the legal burden of proof rather than the evidential burden of proof is necessary); and
• whether consideration could be given to amending the measures to provide for a reverse evidential burden rather than a reverse legal burden.

Minister's response

2.285         The minister's response provides the following information on the regulatory context of the measures:

The task of regulators of the offshore resources industry is difficult given the remote location and high hazard nature of the industry's key operations. For this reason, providing effective and comprehensive compliance and enforcement tools to the regulator is vital in order to deliver human health and safety and environmental protection outcomes. Furthermore and of relevance in consideration of a human rights protection context, it is regulation pertaining, by and large, to large multinational companies as opposed to individuals. The companies who participate in this industry are well resourced, sophisticated and voluntarily engaging in activities for profit.

2.286         Accordingly, the information provided in the minister's response usefully clarifies that the offences will largely apply to corporations rather than individuals. As international human rights law is concerned with the impact of measures on individuals rather than corporations, this regulatory context is relevant to the human rights compatibility of the reverse burden offences.

2.287         The minister's response explains the proposed reverse burden offences in the context of existing offences:

[The bill] contains a number of offence provisions which have corresponding offence specific defences:

• it is a defence to the offence of breaching a direction given by NOPSEMA, if the defendant proves that they took all reasonable steps to comply with the direction (the breach of directions defence); and
• it is a defence to the offence of refusing or failing to do anything required by a 'well integrity law' if the defendant proves that it was not practicable to do that thing because of an emergency prevailing at the relevant time (the well integrity defence).

These defences operate as optional exceptions to the criminal responsibility regime established under the Offshore Petroleum and Greenhouse Gas Storage 2006 (the Act). Both of these defences are already substantively contained in the Act:

• Breach of Directions Defence: The inclusion of the breach of directions defence in the current Bill represents an expansion of an existing defence (section 584 of the Act) to reflect new measures in the Bill relating to the transfer of regulatory responsibility for greenhouse gas operations from the Minister to NOPSEMA.
• Well Integrity Defence: The inclusion of the well integrity defence is a mirrored application to a well integrity law of an existing defence for a failure to comply with OHS (clause 92 of Schedule 3) and environmental management laws (clause 18 of Schedule 2A). This is in connection with the measure in the Bill to create a new Schedule 2B to provide a complete and comprehensive suite of compliance powers relating to the well integrity function, which was transferred to NOPSEMA in 2011.

2.288         In relation to the objectives of the measure, the minister's response states:

The Act, in part, establishes a regulatory framework for the management of remote and high hazard industry activities associated with offshore resources exploration and production. These activities, if not conducted properly, have the potential to result in serious injury or death and/or extraordinary environmental harm. The robustness of the regulatory regime, including an effective compliance and enforcement framework, is critical to achieving this objective. The objective of both the breach of directions defence and the well integrity defence assist in achieving the objective of ensuring the safety of persons in the industry as well as the protection of the environment. As such, the regulatory regime positively engages with the right to life, and helps to protect other human rights which would be negatively affected by significant environmental damage.

2.289         The objectives of ensuring the safety of persons in the industry and the protection of the environment are likely to constitute legitimate objectives for the purposes of international human rights law. As to how the measure is effective to achieve the legitimate objectives, the minister's response states:

A direction issued by NOPSEMA is an enforcement tool designed to achieve a very particular outcome, to direct the industry participant to either do or refrain from doing something in order to deliver OHS, environmental management or well integrity outcomes. Directions are not used frequently — they are used in extraordinary circumstances, usually to deal with a specific emergent risk that the regulations do not adequately cover, and their application and use is taken very seriously. The defence in connection with the offence of non-compliance with a direction allows an optional exception; it is an opportunity for the defendant to prove that they took all reasonable steps to comply with the direction. As a result, the measure is effective in achieving the objectives of the Act.

Well integrity laws relate specifically to the regulatory oversight of the structural integrity of wells, the management of which is seen as posing the greatest risk to both OHS and the environment. A failure in well integrity can result in the death of workers and widespread damage to the environment, such as that recently seen in the Gulf of Mexico with the explosion of the Macondo rig. Strict compliance with these laws is deemed critical and a central tenet of the offshore regime. However, this defence acknowledges and provides for an exception to strict compliance in emergency circumstances. As a result, the measure is effective in achieving the objectives of the Act.

2.290         This information indicates that the offence provisions as drafted are likely to be effective to achieve (that is, rationally connected to) their stated objectives.

2.291         In relation to whether the limitation is a reasonable and proportionate measure to achieve the stated objective, the minister's response states:

Both of these defences are not related to issues essential to culpability, but instead provide exceptions or an excuse for the conduct. In addition, both defences relate to the serious potential consequences of non-compliance (as outlined above — risks of serious injury or death and/or major environmental consequences). Conduct resulting in the offence would, in most circumstances, take place at a remote location and without the ability for the regulator to immediately or even quickly gain access in order to ascertain the facts directly relating to these defences. As a result, the facts and information directly relevant to the defence is entirely within the defendant's knowledge; only the defendant, with their particular knowledge of, and involvement in, the circumstances happening in the event of the failure to comply with the direction, or during a well integrity emergency, is able to prove the requisite and exception-based matters of reasonable steps or practicable actions.

Both defences are likely to be used by companies with significant resources, who are more than capable of shouldering the legal burden if they wish to claim a defence. The industry is highly regulated and companies involved have chosen to voluntarily participate in this regulated environment on a for profit basis. In addition, in relation to the breach of directions defence, the penalties are generally 100 penalty units and do not involve imprisonment.

As a result, both measures contain a limitation that is both reasonable and proportionate to the achievement of the relevant objective. It is also the least rights restrictive approach while still balancing the ability of the measures to effectively achieve their objective.

2.292         As to whether consideration could be given to amending the measures to provide for a reverse evidential burden rather than a reverse legal burden, the minister's response states:

Allowing for a reversal of the evidential burden of proof only would create internal inconsistencies in the Act and its established treatment of offences and defences. It is essential to avoid any perception by the offshore petroleum and greenhouse gas storage industries that the Commonwealth is 'soft' on compliance. Defences should be available only to those who have genuinely done everything in their power to avert the occurrence of an adverse event and can demonstrate that they have done so.

To provide the ability of a defendant to simply point to evidence that suggests a reasonable possibility that reasonable steps were taken to comply with a direction or that compliance with well integrity laws was not practicable in the face of an emergency would result in the regulator being unable to successfully and meaningfully take enforcement action in the case of an offence being committed, and this would undermine the legitimate objective in question.

In the aftermath of an event where one or more workers may have suffered serious injury or may have died, or where significant environmental damage may have occurred, it is appropriate that a titleholder should have to demonstrate, on the balance of probabilities, that the titleholder took all available action to prevent the occurrence, rather than merely to meet the evidential burden relating to the possibility of having done so.

Due to the remote occurrence of the regulated activities, the regulator is not able to, at the relevant time, independently assess and verify what is reasonable or practicable in the event of non-compliance. Accordingly, the defence would almost always succeed without the real ability of the prosecution to contest its veracity. The relevant facts are entirely within the defendant's knowledge and not at all within the regulator's knowledge. This puts the regulator at a significant disadvantage when attempting to establish the chain of causation of an adverse event and to meet a legal burden of proof that a defence cannot be relied upon. This would ultimately lead to suboptimal outcomes for OHS of offshore workers and protection of the marine environment.

2.293         Accordingly, the information provided indicates that the measure is likely to be a proportionate means of achieving its legitimate objectives. Specifically, noting the regulatory context, it appears that the reverse burden offences are the least rights restrictive approach.  

Committee response

2.294        The committee thanks the minister for his response and has concluded its examination of this issue.

2.295        The committee notes that the measures are likely to be compatible with the right to be presumed innocent.

Mr Ian Goodenough MP
Chair

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