Use and disclosure in the course of a person's duties

2.55        As noted above, within their duties, Commonwealth employees and members of the Defence Force can use, disclose and copy information and documents contained in or forming part of COI and IO records and reports.[20] The minister's response does not specifically identify whether the measures pursue a legitimate objective for the purposes of international human rights law. However, the response provides some examples of the circumstances in which the use, disclosure and copying of information and documents may fall within the scope of a person's duties (including being incidental to the performance of those duties). These circumstances include:

• a commanding officer maintaining the welfare of his or her subordinates;
• a legal officer giving legal advice to command;
• the implementation of inquiry outcomes;
• the development of certain material (for example, designing training, policy, procedures, instructions or orders);
• affording procedural fairness; and

• providing inquiry records to the Department of Veterans' Affairs to enable that department to consider a compensation claim.

2.56        These may be capable of constituting legitimate objectives for the purpose of international human rights law. However, it would have been useful if the minister's response had specifically addressed the objectives of the measure.

2.57        Insofar as it may be relevant to the performance of particular functions, authorising the use, disclosure and copying of information and documents may  also be rationally connected to the particular objective.

2.58        In relation to the proportionality of the measures, the minister's response reiterates that the use, disclosure and copying of information and documents must fall within the scope of the person's duties, emphasising that this will depend on the nature of the person's position and the role of the person seeking to disclose the information. The response further states that:

[g]uidance contained in Chief of the Defence Force Directive 08/2014 (the relevant extract of which has been enclosed for the Committee's reference) states that disclosure to the public or wide disclosure within Defence is unlikely to be part of, or incidental to, a person's duties. The Directive provides general examples of different roles and functions within the ADF. A commanding officer in the ADF has functions associated with the welfare of his or her subordinates, so their performance of duties includes matters incidental to maintaining the welfare of his or her subordinates. A legal officer in the ADF has functions associated with giving legal advice to command, so their performance of duties includes matters incidental to giving the legal advice. The Directive also provides common examples of disclosures internally within and externally to Defence that may fall within the performance of a person's duties. These include internal disclosures of inquiry records to other Defence staff for the purpose of implementing inquiry outcomes, dealing with complaints, designing training, policy, procedures, instructions and orders; and affording procedural fairness.

2.59        The minister's response also states that external disclosures (that is, to entities outside of the Department of Defence or the ADF) would generally be within the duties of a dedicated liaison officer of the relevant external department or agency, and that it is unlikely that many external disclosures would be made. The response indicates that the most likely scenario is where records concerning a safety incident are provided to the Department of Veterans' Affairs to enable consideration of compensation claims. The response further states that if an Australian Public Service employee outside the department is provided with inquiry records, that employee will also be prohibited from using, disclosing or copying inquiry records unless to do so is within the course of their employment.

2.60        This information assists with the proportionality of the measures, as it indicates that the use, disclosure and copying of documents under sections 26 and 58 would be restricted to where such actions are within the scope of or incidental to the performance of a person's functions. The information also suggests that external disclosure (including public disclosure) would only occur in limited circumstances.

2.61        The extract of the directive provided with the minister's response also contains further information regarding the protection of information and documents disclosed under sections 26 and 58 from further disclosure. For example, the Directive indicates that:

• where inquiry documents are to be disclosed to other Commonwealth, State or Territory agencies, any potential for further disclosure of sensitive information should be discussed with the agency and appropriate measures taken to mitigate risks;
• where the person receiving the inquiry documents is a serving ADF member or Commonwealth employee, the person may be given an order or direction not to disclose the inquiry records or reports; and
• where inquiry documents include sensitive information (including personal information), such information may need to be redacted before the documents are disclosed.[21]

2.62        As noted above, the response also states that the directive constitutes a general order to Defence Force members for the purposes of the Discipline Act, meaning that unauthorised public disclosure of inquiry records by Defence Force members (who for the most part would be handling such records) may result in administrative or disciplinary action. This assists the proportionality of the measure.

2.63        The minister's response also explains the safeguards against unauthorised use and disclosure of information contained in COI and IO records and reports. The response states that these safeguards include the offences and provisions in sections 37 and 66 of the regulations, the Privacy Act 1988 (Privacy Act) and section 70 of the Crimes Act 1914 (which relates to unauthorised disclosures).

2.64        On balance, noting the information provided on potential safeguards, as well as on the circumstances in which information may be used, disclosed or copied, the provision for use and disclosure in the course of a person's duties may constitute a proportionate limitation on the right to privacy.

Use and disclosure authorised by the minister

2.65        As noted above, the minister may authorise an employee of the Commonwealth or a member of the Defence Force to use, disclose and copy information contained in COI and IO records and reports for purposes specified in the authorisation.^[22] In relation to whether these measures pursue a legitimate objective for the purposes of international human rights law, the minister's response states:

[t]he purpose of sections 27 and 59 is to allow use, disclosure or copying of inquiry records in circumstances where [...] there is a legitimate objective for the purposes of human rights law, but where such would not ordinarily be within the course of an APS employee or ADF member's employment. For example, it may be legitimate for the family of a deceased ADF member to be provided with information surrounding the ADF member's death. Providing them with a copy of the report would be rationally connected to that objective, but doing so would not ordinarily be within the scope of a person's duties and therefore not within the scope of sections 27 and 58. In this instance, the Minister could authorise the Chief of the Defence Force under section 27 and 59 to disclose a copy of an inquiry report to the family.

2.66        While pointing to some examples of how the disclosure of information in some circumstances may pursue a legitimate objective, the minister's response does not specifically articulate how the broad disclosure power itself addresses a pressing and substantial concern. Based on this information, it appears the intention is that the minister would only grant an authorisation in circumstances where a legitimate objective exists. However, the regulations do not place any limits on the purpose for which the minister's powers may be exercised. As such, it is unclear from the information provided that the measure pursues a legitimate objective or is rationally connected to that objective.   

2.67        In relation to the proportionality of the measures, the minister's response states that:

Sections 27 and 59...provide a mechanism for using or disclosing inquiry records containing personal information in a way that is the least restrictive of the right to privacy. Consistent with Defence and privacy policies, the Minister may impose conditions, such as that the personal information of individuals be redacted prior to the report being disclosed. The requirement that the Minister identifies the specific purpose for which the use or disclosure is being authorised limits the use and disclosure of inquiry records to the specific purpose which the Minister has turned his or her mind to, and not some other broader purpose.

2.68        It is accepted that the minister's powers provide some scope for ensuring that the use and disclosure of inquiry records does not unduly interfere with the right to privacy. However, the regulations do not appear to set any limits on the exercise of the minister's powers, beyond requiring that the purpose for which the use, disclosure and copying of COI and IO records and reports be specified in the relevant authorisation. In the absence of any further statutory restrictions on the exercise of the minister's powers, there remains a risk that the powers could be exercised in a manner that is incompatible with human rights.

Power for the minister to use, disclose and copy information and documents

2.69        As noted above, the minister may use information contained in COI records and reports for purposes relating to the Defence Force, and may (more generally) disclose or copy information and documents contained in COI and IO records and reports.^[23] In relation to those measures, the minister's response states that:

[a]s the Minister for Defence has general control and administration of the Defence Force under the Defence Act 1903, and the purpose of inquiries under the Defence (Inquiry) Regulations 2018 is to facilitate the making of decisions relating to the Defence Force, it is essential that the Minister retains this broad power ... using or disclosing inquiry records or reports which may contain personal information is rationally connected to that objective.

2.70        Facilitating the making of decisions relating to the Defence Force appears to be a legitimate objective for the purposes of international human rights law. The minister's use or disclosure of inquiry reports and records appears to be rationally connected to that objective noting that the minister is responsible for the control and administration of the Defence Force.

2.71        In relation to the proportionality of the measures, the minister's response states that use or disclosure may only occur where it is necessary to facilitate decision-making. The response also emphasises that the power is only held by the minister, who will remain accountable to parliament with respect to its exercise. 

2.72        The information provided indicates that the minister's powers are intended only to be exercised to facilitate the making of decisions relating to the Defence Force. While this may be the intention, the regulations do not appear to set any limits on the minister's powers, beyond requiring that information and documents be used (as opposed to copied or disclosed) for purposes relating to the Defence Force. In the absence of any further statutory restrictions on the exercise of the minister's powers, there remains a risk that these powers may be exercised in a manner that is incompatible with human rights.

Committee response

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

2.74        Based on the information provided and the above analysis, the use, disclosure and copying of information and documents in accordance with a person's duties may be compatible with the right to privacy.

2.75        However, noting the absence of relevant safeguards, there appears to be a risk that the following measures may be incompatible with the right to privacy:

• the power for the minister to authorise the use, disclosure and copying of information and documents; and
• the power for the minister himself or herself to use, disclose and copy information and documents.

Reversal of the evidential burden of proof

2.76        The regulations create a number of offences in relation to the use and disclosure of information in relation to a COI. A number of these offences provide exceptions (offence-specific defences) in certain circumstances. For each of these defences, the defendant bears an evidential burden.[24] Similar offence-specific defences for which the defendant bears the evidential burden apply in the context of the offence provisions in relation to an IO Inquiry.[25]

Compatibility of the measure with the right to the presumption of innocence

2.77        Article 14(2) of the ICCPR protects the right to be presumed innocent until proven guilty according to law. Generally, consistency with the presumption of innocence requires the prosecution to prove each element of a criminal offence beyond reasonable doubt. Provisions that reverse the burden of proof and require a defendant to raise evidence to disprove one or more elements of an offence engage and limit this right.

2.78        Reverse burden offences will not necessarily be inconsistent with the presumption of innocence provided that they are within reasonable limits, taking 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.

2.79        The statement of compatibility does not identify that the reverse burden offences in the regulations engage and limit the presumption of innocence. Further, while information is provided in the explanatory statement as to the rationale for reversing the evidential burden of proof,[26] this information does not provide an assessment of whether the limitation on the right to the presumption of innocence is permissible.

2.80        The committee drew the attention of the minister to the committee's Guidance Note 2, which sets out the key human rights compatibility issues in relation to reverse burden offences, and requested the advice of the minister as to:

• whether the reverse burden offences are aimed at achieving a legitimate objective for the purposes of international human rights law;
• how the reverse burden offences are effective to achieve (that is, rationally connected to) that objective; and
• whether the reverse burden offences are reasonable and proportionate to achieve that objective.

Minister's response

2.81        The minister's response provides a range of information as to the human rights compatibility of the reverse burden offences.

Reverse burden offences for refusing to attend as a witness, produce documents or answer a question

2.82        As noted above, these offences are subject to statutory exceptions which reverse the evidential burden of proof including where:

• compliance would be unduly onerous;[27]
• the person believes on reasonable grounds that compliance is likely to cause damage to the defence, security or international relations of the Commonwealth.[28]

2.83        The minister's response explains that the purpose of the offences is to ensure that inquiry officials obtain the best information or evidence available on which to base their findings, which will then be used to facilitate decision-making and ensure that the best decisions are made. In view of the regulatory context, this is capable of constituting a legitimate objective for the purposes of international human rights law.

2.84        The response also states that the offences and the associated reversal of the evidential burden are rationally connected to this objective. In this respect, it is accepted that criminalising failures or refusals to provide information in relation to defence inquiries is likely to be effective to obtain appropriate information. It is also accepted that reversing the evidential burden may be effective to achieve this objective, given that to do so may assist with the enforcement of the offences. However, it would have been useful for the minister's response to more directly address the connection between obtaining appropriate information and reversing the evidential burden of proof.

2.85        In relation to the proportionality of the measures generally, the minister's response states that the existence of relevant matters can be readily and cheaply established by the defendant, whereas these matters would be significantly more difficult and costly for the prosecution to disprove beyond reasonable doubt. While this difficulty is acknowledged, it is noted that the prosecution ordinarily carries a heavy burden of proof in relation to criminal offences, and consequently this justification is not, of itself, likely to be sufficient for reversing the burden of proof for the purposes of international human rights law.

2.86        However, the minister's response further states that:

...the belief of the person that compliance is likely to cause damage to Defence, or that the circumstances made compliance unduly onerous, requires consideration of factors which are peculiarly within the knowledge of the defendant. For example, in relation to whether compliance is unduly burdensome, the volume of information to be provided and the personal circumstances of the person vis a vis the requirements of the order or notice would only be known by the person.

2.87        Based on this information, it may be accepted that the matters to which the measures relate would be peculiarly if not exclusively within the knowledge of the defendant. This indicates that the reversal of the evidential burden of proof in the relevant provisions is likely to constitute a proportionate limitation on the presumption of innocence. The fact that the defences or exceptions reverse the evidential rather than the legal burden also supports a conclusion that the measures are likely to be a proportionate limitation on that right.

Reverse burden offences for unauthorised use or disclosure of information 

2.88        As noted above, these offences are subject to statutory exceptions where the disclosure is authorised under other provisions of the regulations.[29] The minister's response indicates that the offences, and the associated defences or exceptions which reverse the evidential burden, pursue the same objective as the other offences identified in the response (that is, ensuring that inquiry officials obtain the best available information, and ensuring effective decision-making). As noted above at [2.82], this is likely to be a legitimate objective for the purposes of international human rights law. However, the minister's response does not explain the importance of this objective in the context of these specific measures.

2.89        The minister's response also argues that the measures are effective to achieve (that is, rationally connected) to that objective. However, it is unclear how criminalising the unauthorised use and disclosure of information and documents would be effective to ensure that inquiry officers obtain the best information available. It may be that having such restrictions allows individuals to provide information more freely; however, this argument was not advanced in the minister's response. It is similarly unclear that reversing the evidential burden would be effective to achieve this objective, noting that reversing the evidential burden is likely only to assist with the enforcement of the relevant offences.  

2.90        The minister's more general arguments regarding proportionality also appear to apply to these measures. However, as noted above at [1.82], these factors alone are unlikely to be sufficient to justify reversing the burden of proof for the purposes of international human rights law.

2.91        The minister's response also specifically addresses the proportionality of reversing the evidential burden in relation to whether the disclosure of information and documents is authorised. The response argues that a prosecution for disclosure of inquiry records without authorisation would require a reasonable belief that there was no authorisation or permission, which would be difficult for the prosecution to establish. However, as noted above at [2.85] and [2.90], difficulties of this kind are unlikely, on their own, to sufficiently justify reversing the evidential burden of proof for the purposes of international human rights law.

2.92        Additionally, it is not clear that establishing the relevant defences would require a 'reasonable belief' as to the existence of an authorisation or permission. The defences appear only to require that disclosure is permitted under section 26 of the regulations, or authorised (by the minister) under section 27. These matters do not appear to be peculiarly within the knowledge of the defendant. Rather, it appears that they could be established by considering the nature of the relevant disclosure in light of the person's duties, or by making inquiries of the minister. Consequently, it is not clear that reversing the evidential burden of proof is the least rights-restrictive means of achieving the objectives of the measures. As such, it is not possible to conclude that the measures constitute a reasonable and proportionate limitation on the right to be presumed innocent.

Committee response

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

2.94        The committee considers that the reverse burden offences for refusing to attend as a witness, produce documents or answer a question are likely to be compatible with the right to be presumed innocent.

2.95        However, based on the information provided and the above analysis, in relation to the offences of unauthorised use or disclosure of information, the committee is unable to conclude that the reversal of the evidential burden of proof is compatible with the right to be presumed innocent.

Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Bill 2018

Background

2.96      The committee first reported on the bill in its Report 3 of 2018, and requested a response from the Minister for Defence by 11 April 2018.[30] The minister's response to the committee's inquiries was received on 20 April 2018 and discussed in Report 4 of 2018.[31] The committee requested a further response from the minister by 23 May 2018.

2.97      The bill passed both Houses of Parliament on 28 March 2018 and received Royal Assent on 11 April 2018.

2.98      No further response was received at the time of finalising this report. Accordingly, the committee's concluding remarks on the bill are made in the absence of further information from the minister.[32]

Communicating AUSTRAC information to foreign intelligence agencies

2.99        Proposed section 133BA of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AMLCT Act) provides that the Director-General of the Australian Signals Directorate (ASD) may communicate Australian Transaction Reports and Analysis Centre (AUSTRAC) information[33] to a foreign intelligence agency if satisfied of certain matters and may authorise an ASD official to communicate such information on their behalf.  The matters in respect of which the Director-General is to be satisfied before communicating AUSTRAC information are:

1. the foreign intelligence agency has given appropriate undertakings for:
   1. protecting the confidentiality of the information; and
   2. controlling the use that will be made of it; and
   3. ensuring that the information will be used only for the purpose for which it is communicated to the foreign country; and
2. it is appropriate, in all the circumstances of the case, to do so.[34]

Compatibility of the measure with the right to privacy

2.100        The right to privacy includes respect for informational privacy, including the right to respect for private and confidential information, particularly the use and sharing of such information and the right to control the dissemination of information about one's private life. The initial human rights analysis stated that, as AUSTRAC information may include a range of personal and financial information, the disclosure of this information to foreign intelligence agencies engages and limits the right to privacy.

2.101        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. However, the statement of compatibility for the bill did not acknowledge this limitation on the right to privacy and therefore did not provide information on these matters. Accordingly, the committee requested the advice of the minister as to:

• whether the measure is aimed at achieving a legitimate objective for the purposes of international human rights law;
• how the measure is effective to achieve (that is, rationally connected to) that objective; and
• whether the limitation is a reasonable and proportionate measure to achieve the stated objective (including whether the measure is sufficiently circumscribed and whether there are adequate and effective safeguards in relation to the operation of the measure).

Minister's response

2.102        In response to the committee's inquiries, the minister provided some general information as to the purpose of the amendment and existing safeguards, but the response does not expressly address whether the limitation on the right to privacy is permissible. The minister's response stated that the amendment 'is critical to ASD's work to combat terrorism, online espionage, transnational crime, cybercrime and cyber-enabled crime', and further stated:

As an independent statutory agency, this amendment now ensures that information is able to be appropriately shared, consistent with how other Australian domestic intelligence and security agencies manage this type of information. This work across the intelligence and security community is central to defending Australia and its national interests.

2.103        As noted in the initial human rights analysis, the right to privacy may be subject to permissible limitations and thus the purpose of the measure is relevant in determining whether these limitations are permissible.[35] Combating terrorism, online espionage, transnational crime, cybercrime and cyber-related crime is likely to be a legitimate objective for the purpose of international human rights law, and the information sharing for this purpose appears to be rationally connected to this objective.

2.104        Relevant to the proportionality of the measure, the minister's response provided the following general information about safeguards:

As the committee would be aware, the Australian Transaction Reports and Analysis Centre (AUSTRAC) has made successive statements and provided advice to the parliament in relation to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, including specifically regarding the sharing of information with foreign partners, and provided assurances that while the Act does engage a range of human rights, to the extent that it limits some rights, those limitations are reasonable, necessary and proportionate in achieving a legitimate objective.

...

This amendment to the Act does not extend or alter the current arrangement ASD receives by being part of the Department of Defence. Similarly, it is consistent with arrangements provided for all other intelligence and security agencies that require this function. This amendment is not, in effect, creating a new arrangement for ASD. These provisions reflect longstanding arrangements for agencies in the intelligence and security community, and there are strong safeguards in place to ensure the function is appropriately exercised.

In this context, there already exists strong compliance safeguards and ASD is subject to some of the most rigorous oversight arrangements in the country. This includes being subject [to] the oversight of the Inspector-General of Intelligence and Security, who has the powers of a standing royal commission and can compel officers to give evidence and hand over materials. The Inspector-General regularly reviews activities to ensure ASD's rules to protect the privacy of Australians are appropriately applied.

2.105        While the minister's response indicated that AUSTRAC has previously reported to parliament on the human rights compatibility of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, that did not address the committee's specific inquiries in relation to the implications of the measures in this bill and their compatibility with the right to privacy.

2.106        It was acknowledged that the amendment is not creating a new arrangement for ASD, and that the amendments reflect current arrangements for agencies in the intelligence and security community. However, scrutiny committees consistently note that the fact that provisions replicate existing arrangements does not, of itself, address the committee's concerns. Further information was therefore required from the minister as to what safeguards are in place to ensure the function is appropriately exercised. This included information as to what constitutes an 'appropriate undertaking' for the purpose of section 133BA of the bill (described at [2.99] above), including what is considered appropriate protection of confidential information by the foreign intelligence agency (section 133BA(1)(a)(i)). It was unclear from the information provided that the measure is a proportionate limitation on the right to privacy.

2.107        The committee therefore sought further information from the minister as to the compatibility of the measure with the right to privacy including:

• information as to the existing safeguards to protect the right to privacy (such as the Privacy Act 1988);
• the scope of information that may be subject to information sharing;
• what constitutes an 'appropriate undertaking' in relation to the protection of confidential information by the foreign intelligence agency for the purposes of section 133BA(1)(a)(i) of the bill; and
• any other relevant safeguards that ensure the sharing of information between the ASD and foreign intelligence agencies is compatible with the right to privacy.

Committee comment

2.108        As noted above, a further response from the minister was not received at the time of finalising this report.

2.109        The initial human rights analysis stated that, as AUSTRAC information may include a range of personal and financial information, the disclosure of this information to foreign intelligence agencies engages and limits the right to privacy. The minister's first response to the committee provided some general information relevant to assessing the proportionality of the measure. However, further information was required from the minister as to what safeguards are in place to ensure the measure is appropriately circumscribed.

2.110        In the absence of further information, it is not possible to conclude that the measure is a proportionate limitation on the right to privacy.

Compatibility of the measure with the right to life and the prohibition on torture, cruel, inhuman, or degrading treatment or punishment

2.111        Under international human rights law every human being has the inherent right to life, which should be protected by law. The right to life imposes an obligation on state parties to protect people from being killed by others or from identified risks. While the International Covenant on Civil and Political Rights (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 nation state.

2.112        The United Nations (UN) Human Rights Committee has made clear that international law prohibits the provision of information to other countries that may be used to investigate and convict someone of an offence to which the death penalty applies. In this context, the UN Human Rights Committee stated in 2009 its concern that Australia lacks 'a comprehensive prohibition on the providing of international police assistance for the investigation of crimes that may lead to the imposition of the death penalty in another state', and concluded that Australia should take steps to ensure it 'does not provide assistance in the investigation of crimes that may result in the imposition of the death penalty in another State'.[36]  

2.113        The initial analysis stated that the sharing of information internationally with foreign intelligence agencies could accordingly engage the right to life. This issue was not addressed in the statement of compatibility.

2.114        In relation to the right to life, the committee sought the advice of the minister about the compatibility of the measure with this right (including the existence of relevant safeguards).

2.115        A related issue raised by the measure is the possibility that sharing of information may result in torture, or cruel, inhuman or degrading treatment or punishment. Under international law the prohibition on torture is absolute and can never be subject to permissible limitations.[37] This issue was also not addressed in the statement of compatibility.

2.116        In relation to the prohibition on torture, or cruel, inhuman or degrading treatment or punishment, the committee sought the advice of the minister in relation to the compatibility of the measure with this right (including any relevant safeguards).

Minister's response

2.117        The minister's response did not substantively respond to the committee's inquiries as to the compatibility of the measures with the right to life and the prohibition on torture or cruel, inhuman, or degrading treatment or punishment. In order to be compatible with these rights, information sharing powers must be accompanied by adequate and effective safeguards.

2.118        However, in this respect, the minister's response provided no information as to whether there is a prohibition on sharing information with foreign intelligence agencies where that information could lead to torture or cruel, inhuman, or degrading treatment or punishment. Similarly, no information was provided as to whether there is a prohibition on sharing information which could result in the prosecution of a person for an offence involving the death penalty. It is unclear whether or not there are any legal or policy requirements that mandate the consideration of such matters prior to the disclosure of information to a foreign intelligence organisation. By contrast, the Minister for Justice has previously provided the committee copies of the Australian Federal Police (AFP) National Guideline on international police-to-police assistance in death penalty situations and the AFP National Guideline on offshore situations involving potential torture or cruel, inhuman or degrading treatment or punishment. This allowed the committee to assess whether information sharing powers were compatible with human rights in the context of these guidelines.[38]

2.119        The minister's response noted that the relevant information sharing powers were pre-existing and simply reflected current arrangements for agencies in the intelligence and security community. The minister also noted that there has been reporting to parliament in relation to similar arrangements. However, this does not address the relevant human rights concerns. Indeed, as the prohibition on torture is absolute and cannot be subject to limitations, the minister's reference in the response to previous assessments of proportionality does not assist. While proportionality is relevant to an assessment of the compatibility of the measure with the right to life, in the context of the information sharing powers it is essential that there are effective safeguards in place. In relation to whether there are adequate safeguards in place, information as to what constitutes an 'appropriate undertaking' for the purpose of section 133BA of the bill (described at [2.99] above) is relevant. This includes advice as to what is considered appropriate protection of confidential information by the foreign intelligence agency (section 133BA(1)(a)(i)), and whether it would include an undertaking that information shared with the foreign intelligence agency would not result in persons being subject to the death penalty, torture or ill-treatment. Any further information, such as any policies about information sharing from the Director-General to a foreign intelligence agency, and what matters are taken into account when considering such communications, would also be of assistance.

2.120        In relation to the information provided by the minister relating to oversight of the ASD by the Inspector-General of Intelligence and Security, this information may be relevant to determining compatibility of the measure with human rights. In particular, the right to life and the prohibition against torture or cruel, inhuman or degrading treatment or punishment require an official and effective investigation to be undertaken when there are credible allegations against public officials concerning violations of these rights. However, further information was required as to the extent to which this oversight mechanism takes account of whether the ASD's rules are compatible with Australia's international human rights obligations.

2.121        The committee therefore sought further information from the minister as to the compatibility of the measure with the right to life and the prohibition on torture or cruel, inhuman and degrading treatment or punishment.

2.122        In relation to the right to life, the committee sought from the minister specific information as to any safeguards in place to protect the right to life, including information as to:

• whether there are any guidelines about information sharing in death penalty situations and whether the committee could be provided with a copy of any such guidelines;
• whether there is a prohibition on sharing information where that information may be used in investigations that may result in the imposition of the death penalty; and
• whether the requirement that the Director-General receive 'appropriate undertakings' from the foreign intelligence agency in order to share information pursuant to section 133BA(1) includes undertakings in relation to this matter and, if so, what constitutes an 'appropriate undertaking'. If such matters are set out in departmental policies or guidelines, a copy of those guidelines would be of assistance.

2.123        In relation to the prohibition on torture, or cruel, inhuman or degrading treatment or punishment, the committee sought from the minister specific information as to any safeguards in place to ensure compatibility with this right, including information as to:

• whether there are any guidelines about information sharing in situations involving potential torture or cruel, inhuman or degrading treatment or punishment and whether the committee could be provided with a copy of any such guidelines;
• whether there is a prohibition on sharing information where that information may result in a person being subject to torture, or cruel, inhuman or degrading treatment or punishment; and
• whether the requirement that the Director-General receive 'appropriate undertakings' from the foreign intelligence agency in order to share information pursuant to section 133BA(1) includes undertakings in relation to this matter and, if so, what constitutes an 'appropriate undertaking'.

2.124        In relation to each of these rights:

• whether the oversight of the ASD by the Inspector-General of Intelligence and Security, referred to in the minister's response, includes oversight of whether the ASD's rules are compatible with Australia's international human rights obligations; and
• any other relevant safeguards that ensure the sharing of information between the ASD and foreign intelligence agencies is compatible with the right to life and the prohibition on torture, cruel, inhuman and degrading treatment or punishment.

Committee comment

2.125        As noted above, a further response from the minister was not received at the time of finalising this report.

2.126        The initial analysis stated that the sharing of information internationally with foreign intelligence agencies may engage the right to life and the prohibition on torture, or cruel, inhuman or degrading treatment or punishment. The minister's first response did not substantively respond to the committee's inquiries as to the compatibility of the measure with these rights.

2.127        In the absence of further information, it is not possible to conclude that the measure is compatible with the right to life and the prohibition on torture or cruel, inhuman and degrading treatment or punishment. Accordingly, there is a risk that the measure may be incompatible with these rights.

Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 [F2018L00262]

Background

2.128        The committee first reported on the regulations in its Report 5 of 2018, and requested a response from the Minister for Home Affairs by 4 July 2018.[39]

2.129        A response from the Minister for Citizenship and Multicultural Affairs was received on 10 July 2018. The response is discussed below and is reproduced in full at Appendix 3.

Criteria for nomination – associated persons

2.130        Section 2.72 of the regulations sets out the criteria which apply to persons sponsoring or nominating a proposed occupation for persons holding or applying for a Subclass 482 (Temporary Skills Shortage) Visa (TSS visa).[40] Section 2.72(4) requires that, to approve a nomination, the minister must be satisfied that either:

1. there is no adverse information known to Immigration about the person or a person associated with the person; or
2. it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

2.131        It is also one of the criteria for obtaining a TSS visa that there is no adverse information known to Immigration about the person who nominated the nominated occupation[41] or a person 'associated with' that person.[42]

2.132        Section 5.19(4) of the regulations introduces the same requirement for persons nominating skilled workers under the Subclass 186 and Subclass 187 visas.[43]

2.133        'Adverse information' is defined in section 1.13A of the regulations to mean information that the person:

1. has contravened a law of the Commonwealth, a State or a Territory; or
2. is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law; or
3. has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory authority that administers or enforces the law; or
4. has become insolvent (within the meaning of section 95A of the Corporations Act 2001); or
5. has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a bogus document, or information that is false or misleading in a material particular.

2.134        Section 1.13B provides that persons are 'associated with' each other if:

1. they:        
   1. are or were spouses or de facto partners; or
   2. are or were members of the same immediate, blended or extended family; or
   3. have or had a family-like relationship; or
   4. belong or belonged to the same social group, unincorporated association or other body of persons; or
   5. have or had common friends or acquaintances; or
2. one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of:
   1. the other; or
   2. any corporation or other body in which the other is or was involved (including as an officer, employee or member); or
3. a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them; or
4. they are or were related bodies corporate (within the meaning of the Corporations Act 2001); or
5. one is or was able to exercise influence or control over the other; or
6. a third person is or was able to exercise influence or control over both of them.

Compatibility of the measure with the right to freedom of association

2.135        The right to freedom of association protects the right of all persons to group together voluntarily for a common goal and to form and join an association.[44] This right supports many other rights, such as freedom of expression, religion, assembly and political rights. Without freedom of association, the effectiveness and value of these rights would be significantly diminished.

2.136        The initial human rights analysis stated that introducing a requirement that the minister may refuse nomination where there is adverse information about a person associated with the person nominating engages and limits the right to freedom of association, as it has the potential for the measure to restrict a person's ability to freely associate. The statement of compatibility does not acknowledge that the right to freedom of association is engaged by the measure.

2.137        Limitations on the right to freedom of association are only permissible where they are 'prescribed by law' and 'necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others'.[45] This requires an assessment of whether the measure pursues one of these legitimate objectives, is rationally connected to that objective and is a proportionate means of achieving the objective.

2.138        No information is provided in the statement of compatibility as to the objective of the measure. However, the explanatory statement provides the following information as to why it is necessary to have a broad definition of 'associated with' in the regulations:

The definition has been drafted in terms which encompass the wide range of associations among family, friends and associates which can be used to continue unacceptable or unlawful business practices via different corporate entities.

The breadth of these provisions is necessary to maintain the integrity of Australia's sponsored worker programs. There are two safeguards against inappropriate reliance on the provisions. The Minister always has a discretion to disregard adverse information and associations if it is reasonable to do so. That discretion would be exercised to disregard information which did not have serious bearing on the suitability of the business to sponsor overseas workers. Further, if the decision relates to a business operating in Australia, all relevant decisions – refusal to approve a person as a sponsor, refusal to approve a nomination, and refusal to grant a visa to the nominated employee – are subject to independent merits review by the Administrative Appeals Tribunal. The Government considers that these provisions strike an appropriate balance between the need to uphold the integrity of the sponsored worker program and the need to ensure consistent and fair decision making.[46]

2.139        A measure is likely to be rationally connected if it can be shown that the measure is likely to be effective in achieving that objective. In this case, it was unclear whether merely being associated with a person who may have engaged in a range of specified conduct ('adverse information') has specific relevance to a person's suitability as a sponsor or nominator. In addition, it was noted that the definition of 'associated with' is very broad, extending to persons who 'belong or belonged to the same social group, unincorporated association or other body of persons'. Taking into account the potential breadth of its application, there were concerns that the definition of 'associated with' may not be sufficiently circumscribed such that the measure may not be a proportionate way to achieve that objective. In this respect, it was noted that there is ministerial discretion to disregard any adverse information about the person or a person associated with the person.[47] It was unclear that the ministerial discretion to disregard the adverse information of the associated person, in and of itself, offers sufficient protection such that the measure may be regarded as proportionate to its objective.

2.140        The committee therefore sought the advice of the minister as to the compatibility of the measure with the right to freedom of association, including:

• whether there is reasoning or evidence that establishes that the stated objective addresses a pressing or substantial concern or whether the proposed changes are otherwise aimed at achieving a legitimate objective;
• whether the measure is rationally connected (that is, effective to achieve) that objective; and
• whether the measure is a proportionate means of achieving its objective (including whether the definition of 'associated with' is sufficiently circumscribed).

Minister's response

2.141        In relation to whether the measure pursues a pressing and substantial concern, the minister's response provides the following information:

With the introduction of the Temporary Skill Shortage (TSS) visa in March 2018, the Department expanded the definition of 'associated with' at Regulation 1.13B due to integrity concerns in the previous subclass 457 visa program. The previous definitions were inadequate to deal with some abuses within the subclass 457 visa program. This was particularly in situations where previously sanctioned/cancelled sponsors closed the operations of one company, and then created a new legal entity to continue using the 457 /TSS program to sponsor overseas workers.

2.142        Preventing the abuse of certain classes of visas and preserving the integrity of the sponsored work program is likely to constitute a legitimate objective for the purposes of international human rights law. In this respect, the measure may also be aimed at protecting the rights and freedoms of others.

2.143        The minister's response also provides information about how the measure is effective to achieve (that is, rationally connected to) the objective:

The expanded definition of 'associated with' under Regulation 1.13B allows the Department to address, among other issues, phoenixing activities by companies and networks of non-compliant entities (for example, brothers running two separate companies engaged in visa fraud).

2.144        In addition, the case study in the minister's response provides a practical example of how, in certain circumstances, an association with particular individuals or companies that are engaged in conduct that would constitute 'adverse information' directly affects the suitability of a sponsor or nominator who is associated with the individual or company, especially where the associated person has engaged in conduct that is non-compliant with the Migration Act. This information addresses concerns raised in the initial human rights analysis about the extent of the connection between a nominator's association with another person about whom Immigration has 'adverse information', and efforts to prevent the abuse of certain visa classes and preserve the integrity of the sponsored work program. In light of this information, it appears that the measure is likely to be effective to achieve the stated objective.

2.145        In relation to the proportionality of the measure, the minister's response also provides information about whether less rights-restrictive approaches are reasonably available to achieve the legitimate objective. In this respect, the case study provided by the minister indicates that the previous measure was inadequate to address the stated objective as it enabled company directors of sponsoring businesses that were non-compliant with the Migration Act to reduce the risk of future identification and sanction by the Department by setting up multiple companies to take over the operations of the initial company and become sponsors. The minister explains that the 'added benefit' of this approach was that each sponsor from the new company would be considered low risk to the Department, due to the low number of visa holders nominated per company. In essence, the measure is designed to look behind the 'corporate veil' to capture instances of non-compliance or abuse.

2.146        The case study also indicates that the breadth of the definition of 'associated with' may be necessary to capture some circumstances which the measure is designed to address; namely, the use of extended networks and companies by non-compliant entities to continue to sponsor overseas workers. However, at the same time, it is noted that 'associated with' is defined very broadly to include a range of relationships. This raises concerns that the measure, as drafted, may not constitute the least rights restrictive approach to achieving the objective sought. However, the minister's response reiterates that 'there are limits to what is relevant for the purposes of taking into account "adverse information"'. As outlined in paragraph 2.133, 'adverse information' is limited to information that is known to Immigration and relates to whether a person has contravened Australian law, whether they are insolvent, and whether they have given a prescribed official a bogus document or false or misleading information.[48]

2.147        Additionally, the minister's response notes that most of the sponsors affected by the regulations will be companies, rather than individuals. People who are affected by the regulations will have the ability to seek independent merits review of the minister's decision regarding the presence of 'adverse information' known to Immigration about them or their associate, or the reasonableness of disregarding any adverse information known to Immigration about them or their associate. [49]

2.148        In combination, these safeguards support a conclusion that the measure may be a proportionate limitation on the right to freedom of association.

Committee response

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

2.150        In light of the information provided in the minister's response, the measure may be a proportionate limitation on the right to freedom of association.

Social Security (Assurances of Support) Determination 2018 [F2018L00425]

Social Security (Assurances of Support) Amendment Determination 2018 [F2018L00650]

Background

2.151        The committee first reported on the determinations in its Report 5 of 2018, and requested a response from the Minister for Social Services by 4 July 2018.[50]

2.152        The minister's response to the committee's inquiries was received on 10 July 2018. The response is discussed below and is reproduced in full at Appendix 3.

Requirements for persons to give assurances of support

2.153        The determination (as amended by the amended determination)[51] seeks to introduce requirements that must be met for an individual or body (an assurer) to be permitted to give an 'assurance of support' for migrants seeking to enter Australia on certain visa subclasses (assurees).[52] An assurance of support is a legally binding commitment by the assurer to financially support the assuree for the duration of the assurance period,[53] including assuming responsibility for repayment of any recoverable social security payments received by the assuree during the assurance period.[54]

2.154        Individuals who give an assurance of support must meet an income requirement in order to be an assurer.[55]  Section 15(2) of the amended determination provides that an individual giving an assurance of support as a single assurer meets the income requirement for a financial year if the amount of the individual's assessable income for the year is at least the total of:

1. the applicable rate of newstart allowance multiplied by the total of:
   1. one (representing the individual giving the assurance of support); and
   2.  the total number of adults receiving assurance under an assurance of support given by the person; and
2. the amount obtained by adding together, for each child of the person giving assurance under an assurance of support:
   1. the base FTB child rate[56] as at 1 July in the financial year; and
   2. the applicable supplement amount[57] as at 1 July in the financial year.[58]

2.155        The amended determination provides an example of how this provision is designed to operate:

If a person with 2 children applies to give an assurance of support for a migrating family of 2 parents and 2 children on 1 July 2017, the minimum required income amount of the person is the total of:

• $45 186 (the applicable newstart allowance of $15 062 multiplied by the total number of adult assurers and adult assurees (3)); and
• the base FTB [(family tax benefit)] child rate and the applicable supplement amount for each of the assurer's children.

The base FTB child rate and the applicable supplement are only added to the income requirement for the assurer’s children. They do not apply to the children of the assurees.[59]

2.156        For an individual that gives an assurance of support jointly with another individual or other individuals, the individual assurer meets the income requirement for a financial year if the combined amount of assessable income of the assurers for the year is at least the total of the following amounts:

1. the applicable rate of newstart allowance multiplied by the total of:
   1. the total number of individuals giving assurance under the assurance of support; and
   2. the total number of adults receiving assurance under an assurance of support given by the individual; and
2. the amount obtained by adding together, for each child of an individual giving assurance under the assurance of support:
   1. the base FTB child rate as at 1 July in the financial year; and
   2. the applicable supplement amount as at 1 July in the financial year.[60]

2.157        The amended determination provides an example of how this provision is designed to operate:

If a joint assurer (who has a partner and 2 children) gives an assurance of support with the partner for a migrating family of 2 parents and 2 children on 1 July 2017, the combined minimum required income of both assurers is the total of:

• $60 248 (the applicable newstart allowance of $15 062 multiplied by the total number of adult assurers and adult assurees (4)); and
• the base FTB child rate and the applicable supplement amount for each of the assurers’ children.

The base FTB child rate and the applicable supplement are only added to the income requirement for the assurers' children. They do not apply to the children of the assurees.[61]

Compatibility of the measure with the right to protection of the family

2.158        The right to respect for the family is protected by articles 17 and 23 of the International Covenant on Civil and Political and Rights (ICCPR) and article 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Under these articles, the family is recognised as the natural and fundamental group unit of society and, as such, is entitled to protection. An important element of protection of the family is to ensure family members are not involuntarily separated from one another. Laws and measures which prevent family members from being together will engage this right.

2.159        Additionally, under article 3(1) of the Convention on the Rights of the Child (CRC), Australia is required to ensure that, in all actions concerning children, the best interests of the child are a primary consideration. It requires legislative, administrative and judicial bodies and institutions to systematically consider how children's rights and interests are or will be affected directly or indirectly by their decisions and actions.[62] Under article 10 of the CRC, Australia is required to treat applications by minors for family reunification in a positive, humane and expeditious manner.

2.160        A measure which limits the ability of certain family members to join others in a country is a limitation on the right to protection of the family.[63] As noted in the initial human rights analysis, by requiring individuals (relevantly, including family members) to meet certain income requirements in order to sponsor family members to come to Australia, the measure creates a financial barrier for family members to join others in a country and therefore may limit the right to protection of the family.

2.161        Limitations on the right to protection of the family will be permissible where the limitation is in pursuit of a legitimate objective, and is rationally connected and proportionate to the pursuit of that objective.

2.162        The statement of compatibility to the determination and the amended determination do not acknowledge that this right is engaged by the measure. However, the statement of compatibility describes the objective of the determination as 'protecting social security outlays by the Commonwealth while allowing the migration of people who might not otherwise be permitted to come to Australia'.[64] While this may be capable of constituting a legitimate objective, further information was required to determine whether the objective is legitimate in the context of this specific measure. In this context, the committee's usual expectation where a measure may limit a human right is that the accompanying statement of compatibility provides a reasoned and evidence-based explanation of how the measure supports a legitimate objective for the purposes of international human rights law.

2.163        Additionally, as noted above, a limitation must be rationally connected to, and a proportionate way to achieve, its legitimate objective in order to be justifiable in international human rights law.  As to proportionality, while it was noted that the income requirement for assurers is significantly lower in the amended determination than the original determination,[65] the income requirement in the amended determination is nonetheless substantial. Further information was required to determine whether the measure is rationally connected and proportionate to the stated objective of the measure.

2.164        The committee therefore sought the advice of the minister as to:

• whether there is reasoning or evidence that establishes that the stated objective addresses a pressing or substantial concern or whether the proposed changes are otherwise aimed at achieving a legitimate objective for the purposes of international human rights law;
• whether the measure is rationally connected to (that is, effective to achieve) that objective; and
• whether the measure is a proportionate means of achieving its objective.

Minister's response

2.165        In relation to whether the measure is aimed at achieving a legitimate objective for the purposes of international human rights law, the minister's response notes that the purpose of the determination is to continue existing requirements under the Assurances of Support (AoS) scheme following the sunset of the previous determination. The minister also reiterates that the amended determination reduces the AoS income requirements in the original determination and accordingly:

...enhance[s] the prospects of families joining each other and the right to protection of families for the purposes of international human rights law.

2.166        This is positive from the perspective of the right to the protection of the family. However, as noted in the initial human rights analysis, 'the income requirement in the amended determination is nonetheless substantial', and this limits the right to protection of the family, because it continues to restrict the ability of certain family members to join others. The information from the minister, while useful, does not appear to identify the legitimate objective sought to be achieved by this limitation on the right to protection of the family.

2.167        As noted above at [2.162], the statement of compatibility to the amended determination describes the objective of the determination as 'protecting social security outlays by the Commonwealth while allowing the migration of people who might not otherwise be permitted to come to Australia'.[66] The initial human rights analysis noted that protecting the sustainability of the social security system could be capable of constituting a legitimate objective; however, further reasoning or evidence would be required to determine whether this objective was legitimate in the context of the specific measure.[67] It is acknowledged that the measure may lead to fewer potential costs to the social security system. However, it would have been useful if the minister's response had provided additional information as to why the measure is needed from a fiscal perspective or how the proposed measure will ensure the sustainability of the social welfare system. While not specifically put in these terms, it appears that, in the context of existing restrictions on access to social security for new migrants and the information provided by the minister, the measure may also pursue the objective of assisting to ensure an adequate standard of living for newly arrived migrants. Taken together, these objectives may be capable of constituting a legitimate objective for the purposes of international human rights law. However, further information from the minister would have been useful in this respect.

2.168        In relation to how the measure is effective to achieve (that is, rationally connected to) the objective, the minister's response explains that:

the requirements under the AoS scheme ensures an assurer has the potential to provide the level of financial support required by a visa entrant.

2.169        A measure which ensures that a person can access financial support from a source other than the social security system is rationally connected to ensuring the sustainability of the social security system, because it reduces the amount of potential future social security outlays by the Commonwealth. In this respect, such a measure is also rationally connected to ensuring an adequate standard of living for newly arrived migrants as it seeks to guarantee access to financial support for these migrants from a source other than social security.

2.170        Regarding the proportionality of the proposed measure, the minister's response identifies the following safeguards for visa entrants to protect families in the event that an assurer is not able to provide them with adequate support:

If a potential assurer does not meet the AoS income requirements, the option of entering into a joint AoS arrangement is available.

2.171        These features insert a degree of flexibility into the scheme to safeguard the right to the protection of the family, where a potential assurer does not meet income requirements or is otherwise unable to provide adequate support. This information indicates that the measure may be proportionate to the objective being sought.

Committee response

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

2.173        In light of the information provided by the minister and the preceding analysis, the committee considers that the measure may be compatible with the right to protection of family.

Various Parks Management Plans[68]

Background

2.174        The committee first reported on the plans in its Report 5 of 2018, and requested a response from the Minister for the Environment and Energy by 4 July 2018.[69]

2.175        The minister's response to the committee's inquiries was received on
25 July 2018. The response is discussed below and is reproduced in full at Appendix 3.

Regulation of commercial media within the parks

2.176        Each of the park management plans include rules for commercial media to operate in the parks. The plans provide that news of the day reporting may be undertaken on terms determined by the Director and subject to the Director being notified. Commercial media activities other than news of the day reporting are subject to further conditions including a permit being issued.[70]  

Compatibility of the measure with the right to freedom of expression

2.177        The right to freedom of expression includes the communication of information or ideas through the media. Providing that news of the day reporting is to be on the terms determined by the Director engages and may limit the right to freedom of expression. The requirement that other commercial media activities are subject to further conditions including the issuing of a permit also engages and limits this right.  

2.178        While the right to freedom of expression may be subject to permissible limitations in a number of circumstances,[71] the statements of compatibility provide no assessment of this right. Accordingly, it was unclear from the information provided the extent of any limitation on the right to freedom of expression and whether that limitation is permissible.

2.179        The committee therefore sought the advice of the minister as to the compatibility of the measure with the right to freedom of expression including information as to:

• the extent of the limitation the measure imposes on the right to freedom of expression (such as, information about the terms determined by the Director in relation to news of the day reporting and the process for the issue of a permit or permission for other reporting);
• 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; and
• whether the limitation is a reasonable and proportionate measure to achieve the stated objective (including the existence of any safeguards).

Minister's response

2.180        The minister's response provides additional information about the nature and extent of the limitation that the measures impose on the right to freedom of expression. For example, in relation to the authorisation required for commercial media activities other than news of the day reporting, the minister explains that:

...the assessment of permit/licence applications and the conditions placed on those authorisations relates only to the impact on park values and other park users. It does not consider the manner in which images or sounds will be used or place conditions on their use.

2.181        In this respect, the minister's response states that the relevant measures 'do not control how images or sounds are used and thereby place no restriction on the right to freedom of expression'. The minister's response also explains that the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) currently prohibits actions for commercial purposes, including photography, filming or sound recording for commercial purposes, unless the activities are conducted in accordance with the relevant management plan. On this basis, the response states that 'the management plans do not create a restriction on media activities – they relieve one'.

2.182        While this is positive from the perspective of the right to freedom of expression, the management plans nevertheless engage and limit the right to freedom of expression, by enabling the Director to impose terms or conditions on the access of commercial media to parks. Accordingly, the relevant question is whether the limitation on the right to freedom of expression is permissible as a matter of international human rights law.

2.183        In relation to whether the measure is aimed at achieving a legitimate objective for the purposes of international human rights law, the minister's response states that 'the management plan objective [is to] protect the natural, cultural and heritage values of marine parks'. This is likely to constitute a legitimate objective for the purposes of international human rights law.

2.184        The minister's response provides the following information about how the measure is effective to achieve (that is, rationally connected to) the stated objective:

...the terms determined by the Director or the conditions of authorisations specifically aim to avoid or mitigate impacts and risks of commercial media activities within marine parks, to as low as reasonably practicable.

2.185        The minister notes, for example, that a condition may be 'placed on a licenced or permitted commercial media activity in a marine park related to the use of a chemical in the water to alter marine bird behaviour'. As such, a measure which reduces or mitigates the negative impact of certain activities on a marine park would appear to be rationally connected to (that is, effective to achieve) the protection and conservation of the natural, cultural and heritage value of marine parks.

2.186        Regarding the proportionality of the proposed measure, the minister's response states that the director's powers to determine the terms or conditions upon which commercial media carry out their activities are limited by reference to the Director's functions under section 514D of the EPBC Act. Under this section, the Director's functions 'are to protect, conserve and manage biodiversity and heritage in Commonwealth reserves'. Consequently, the terms or conditions imposed by the Director are significantly circumscribed, because they can only be directed towards the Director's prescribed functions.

2.187        In addition, the minister's response explains that guidance and policies will be made available to commercial media to explain the basis upon which terms will be determined or applications assessed. For example, in relation to commercial media activities for reporting news of the day, the minister's response states that 'guidance on the "terms determined by the Director" will be prepared for these activities and made available on the Parks Australia website'. For commercial media activities other than reporting the news of the day, the minister's response explains that:

Following receipt of the application [for a permit or licence], decisions about activities will be consistent with the plan and zone objectives and take into account the impacts and risks of the activity on the park values. The assessment is not based on how the images/sounds will be used or what the applicant intends to convey through those images/sounds. The impacts and risks will be assessed in accordance with policies established under the assessments and authorisations program outlined in the management plans.

2.188        The minister's response also provides the following information about why commercial activities other than news of the day reporting are subject to greater restrictions:

Activities for news of the day reporting are likely to be time sensitive to capture breaking news or an event of the moment and are typically small scale and less likely to impact park values. The number of crew, amount of equipment and duration of filming are considered in assessing the risk to values. These activities don't require individual authorisation as opposed to other commercial media activities such as a film or documentary which are better managed by permit or licence, given the greater risk they may pose to park values (such as larger crew and equipment needs and more time for filming).

...

The difference in approach reflects that permitted or licensed projects typically pose greater impacts and risks to park values.

2.189        This information further indicates that the measure is sufficiently circumscribed and is only as extensive as necessary to achieve the stated objective of protecting and conserving the natural, cultural and heritage value of marine parks.

Committee response

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

2.191        In light of the information provided by the minister and the preceding analysis, the committee considers that the measure is likely to be compatible with the right to freedom of expression.

Mr Ian Goodenough MP
Chair

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