Chapter 1

New and continuing matters[1]

1.1 This chapter provides assessments of the human rights compatibility of:

bills introduced into the Parliament between 14 October and 5 December 2019;
legislative instruments registered on the Federal Register of Legislation between 20 September and 3 December 2019;[2] and
one bill previously deferred.[3]

Response required

1.2 The committee seeks a response from the relevant minister with respectto the following bills and instruments.

Anti-Money Laundering and Counter-Terrorism Financing and Other Legislation Amendment Bill 2019[4]

Purpose	This bill seeks to amend a number of Acts in relation to combatting of money laundering and financing of terrorism to: expand the circumstances in which reporting entities may rely on customer identification and verification procedures undertaken by a third party; prohibit reporting entities from providing a designated service if customer identification procedures cannot be performed; increase protections around correspondent banking; expand exceptions to the prohibition on tipping off to permit reporting entities to share suspicious matter reports and related information with external auditors, and foreign members of corporate and designated business groups; amend the framework for the use and disclosure of financial intelligence; create a single reporting requirement for the cross-border movement of monetary instruments including physical currency and bearer negotiable instruments; amend the Criminal Code to deem money or property provided by undercover law enforcement as part of a controlled operation to be the proceeds of crime for the purposes of prosecution; expand the rule-making powers of the Chief Executive Officer of AUSTRAC; and make it an offence for a person to dishonestly represent that a police award has been conferred on them
Portfolio	Home Affairs
Introduced	House of Representatives on 17 October 2019
Right	Fair hearing
Status	Seeking additional information

Anti-money laundering and terrorism financing

1.3 Item 125 of the bill seeks to insert a new section 400.10A into the CriminalCode Act 1995 to provide that money or property provided by a lawenforcement participant (or civilian participant acting under their direction)as part of a controlled operation, does not need to be proved to be theproceeds of crime in any prosecution for dealing with the proceeds of crime.[5]

Preliminary international human rights legal advice

Right to a fair trial

1.4 By providing that money or property provided by, or on behalf of, a lawenforcement participant in a controlled undercover operation does not need tobe proved to be the proceeds of crime for the purposes of a prosecution, thismeasure may engage the right to a fair trial. The right to a fair trial andfair hearing is protected by article 14 of the International Covenant on Civiland Political Rights (ICCPR). The right applies to both criminal and civilproceedings and to cases before both courts and tribunals.

1.5 When considering the impact of undercover police operations on the rightto a fair trial, the main issue that arises is whether the conduct beingauthorised by the measure would amount to entrapment. The European Court ofHuman Rights has held that conduct rising to the level of entrapmentconstitutes an impermissible limitation of the right to a fair trial.[6] In determining whether law enforcement conduct amounts to entrapment, the keytest is whether it can be classed as a form of passive investigation, orwhether it is more accurately classed as incitement – meaning that thecrime being investigated would not have been committed without policeintervention. This test is set out in the case of Vanyan v Russia:

Where the activity of undercover agents appears to have instigated the offence and there is nothing to suggest that it would have been committed without their intervention, it goes beyond that of an undercover agent and may be described as incitement. Such intervention and its use in criminal proceedings may result in the fairness of the trial being irremediably undermined.[7]

1.6 In considering whether a law might risk empowering conduct that amountsto entrapment (or incitement), the presence of 'clear, adequate and sufficientprocedural safeguards set permissible police conduct aside from entrapment'.[8] In addition to clear guidelines around the authorisation of such conduct, thesesafeguards might also include requirements for sufficient documentation toenable the subsequent independent scrutiny of the conduct.[9] However, the statement of compatibility does not identify that the proposedmeasure engages the right to a fair trial, and as such no information isprovided about whether such safeguards exists.

1.7 It is noted that there is no substantive defence of entrapment inAustralia, although a court can exercise its discretion to exclude all evidenceof an offence or an element of an offence procured by unlawful conduct on thepart of law enforcement officers, on public policy grounds.[10] Under the Crimes Act 1914, the authority to conduct a controlledoperation cannot be granted unless an authorising officer[11] is satisfied on 'reasonable grounds' that the controlled operation will not beconducted in such a way that a person is likely to be induced to commit anoffence that the person would not otherwise have intended to commit.[12] Furthermore, a participant in a controlled operation would only be protectedfrom criminal responsibility for an offence committed in the course of theoperation,[13] and be indemnified from civil liability,[14] where 'the conduct does not involve the participant intentionally inducing aperson to commit a Commonwealth offence or an offence under a law of a State orTerritory that the person would not otherwise have intended to commit'.[15]

1.8 These provisions may safeguard against conduct which could otherwiseconstitute entrapment. However, the threshold requirement that an authorisingofficer be satisfied on 'reasonable grounds' that a person will not be inducedinto committing an offence appears to be broad, and more information isrequired to assess whether this provision would provide an adequate safeguardagainst the risk of entrapment. Furthermore, it is unclear whether evidencerelating to the receipt of 'money or property provided by undercover lawenforcement as part of a controlled operation' would still be admissible, andtreated as the proceeds of crime for the purposes of prosecution, even where itis later demonstrated that:

the authorising officer did not have reasonable grounds for providing the controlled operation authorisation; or
despite an authorising officer having had such reasonable grounds, the conduct of the participants during the operation itself nevertheless amounted to incitement.

1.9 In summary, the bill seeks to deem money or property provided by, or onbehalf of, a law enforcement participant to a person during an undercoverpolice operation to be 'proceeds of crime', for the purposes of prosecuting aperson for dealing with proceeds of crime. If the conduct by law enforcementparticipants amounted to entrapment, these measures would engage and limit theright to a fair trial.

1.10 More information is required in order to assess the compatibility ofthis measure with the right to a fair trial. In particular:

whether there are adequate procedural safeguards in place to prevent covert law enforcement operations, which may result in a charge for an alleged offence under sections 400.3 to 400.8 of the Criminal Code Act 1995, from amounting to incitement;
whether there is any independent oversight, or rights of review, in relation to the conduct of covert law enforcement operations; and
whether there are any limits on the admissibility of evidence provided by a law enforcement or civilian participant in the context of a controlled operation, in relation to the prosecution for a proceeds of crime offence, if the conduct of such operation were to amount to incitement.

Committee view

1.11 The committee notes that the bill seeks to deem money or propertyprovided by, or on behalf of, a law enforcement participant to a person duringan undercover police operation to be 'proceeds of crime', for the purposes ofprosecuting a person for dealing with proceeds of crime. The committee notesthe legal advice on the bill that if the conduct by law enforcementparticipants amounted to entrapment, these measures may engage and limit theright to a fair trial. In order to assess the compatibility of this measurewith the right to a fair trial, the committee seeks the minister's advice as tothe matters set out at paragraph [1.10].

Australian Sports Anti-Doping Authority Amendment (Enhancing Australia’s Anti-Doping Capability) Bill 2019[16]

Purpose	This bill seeks to amend the Australian Sports Anti-Doping Authority Act 2006, and other Acts, to: abolish the Anti-Doping Rule Violation Panel; empower the Chief Executive Officer to initiate a suspected anti-doping rule violation investigation, and require the provision of information or the production of documents or things where the CEO 'reasonably suspects' that a person has such information; increase the penalty for non-compliance with a disclosure notice; and extend the protection from civil actions to National Sporting Organisations
Portfolio	Youth and Sport
Introduced	House of Representatives on 17 October 2019
Rights	Privacy and effective remedy
Status	Seeking additional information

Lowering threshold to issue a disclosure notice

1.12 The bill seeks to amend the Australian Sports Anti-Doping AuthorityAct 2006 (ASADA Act) to lower the threshold by which the ChiefExecutive Officer (CEO) of the Australian Sports Anti-Doping Authority (ASADA)may issue a disclosure notice.[17] Currently, the CEO of ASADA may issue a written notice (disclosure notice),requiring a person to attend an interview to answer questions or to producedocuments or things.[18] The CEO may currently only issue such a notice if they 'reasonably believe'that the person has information, documents or things relevant to theadministration of the national anti-doping scheme, and three members of the Anti-DopingRule Violation Panel agree with that belief.[19]

1.13 Items 43 and 44 of the bill seek to lower this threshold, enabling theCEO to issue a disclosure notice where they 'reasonably suspect' that theperson in question has such information, documents or things. As Part 1 ofSchedule 1 of the bill also seeks to abolish the Anti-Doping Rule ViolationPanel, item 13 of the bill seeks to remove the requirement that three panelmembers agree in writing that the CEO's belief is reasonable. Item 46 of thebill would also double the penalty for
non-compliance with such a disclosure notice, increasing it to 60 penalty units(currently $12,600).[20]

Preliminary international human rights legal advice

Right to privacy

1.14 Disclosure notices may require a person to provide personal informationto the CEO of ASADA, and therefore engage and limit the right to privacy.[21] By lowering the threshold for issuing a disclosure notice and increasingpenalties for
non-compliance, the proposed measures would increase the existing limitationson the right to privacy associated with the disclosure notice regime. The rightto privacy encompasses respect for informational privacy, including the rightto respect for private information and private life, particularly the storing,use, and sharing of personal information.[22]

1.15 The right to privacy may be subject to permissible limitations which areprescribed by law and are not arbitrary. In order for a limitation not to bearbitrary, it must pursue a legitimate objective, and be rationally connectedto, and a proportionate means of achieving, that objective.[23]

1.16 The statement of compatibility acknowledges that the measures engage andlimit the right to privacy.[24] In relation to whether the measure pursues a legitimate objective, it statesthat the overall disclosure regime contributes to the legitimate aim ofcatching dope cheats and the individuals who facilitate doping, which ispotentially harmful to health, and 'may distort the outcome of sportingcontests, and over time undermines the overall integrity of sport.'[25] It also states that the changes to the threshold for issuing disclosure noticeswere identified by the Wood Review to better enable ASADA to investigate thosepersons facilitating and enabling the commission of anti-doping ruleviolations.[26] The statement of compatibility also states that, under the current regime,ASADA is typically confined to issuing disclosure notices to those personsalready believed to have committed doping violations, rather than the peoplefacilitating or enabling the commission of such violations.[27] It states that notices are generally only sought in circumstances where ASADA already has evidence that might suggest a violation.[28]

1.17 Ensuring that ASADA is able to effectively investigate potentialanti-doping rule violations in the context of increasingly complex anti-dopingmatters is likely to be a legitimate objective for the purposes ofinternational human rights law, and the measures seem rationally connected tothat objective.

1.18 The statement of compatibility further states that the measures are aproportionate limitation on the right to privacy.[29] It provides some information as to the safeguards that apply to the currentdisclosure regime. In particular, it notes that section 67 of the ASADA Actcontains strong protections over information obtained through the disclosurenotice process, by making it an offence for an entrusted person to discloseprotected information, which includes information obtained under a disclosurenotice.[30] It also highlights that the ASADA Act limits the ability of the CEO to issue adisclosure notice to a medical practitioner,[31] which helps prevent arbitrary interferences with the doctor-patientrelationship.[32]

1.19 However, the statement of compatibility otherwise provides limitedassessment of how lowering the threshold by which the notice may be given is aproportionate limitation on the right to privacy. Instead, it states that thenature of a disclosure warrant is less intrusive than that of a search warrantand therefore a lower threshold is warranted.[33] However, while a disclosure warrant does not authorise the search of premises,it still requires a person to provide potentially personal and sensitiveinformation, documents, things or answers, and provides that a person who doesnot do so commits an offence. The statement of compatibility provides noexplanation as to the appropriateness of removing the current oversightmechanism, whereby currently a disclosure notice can only be issued where threemembers of the Anti-Doping Rule Violation Panel agree with the CEO. This billwould remove this so that the decision rests solely with the CEO, on the lowerstandard of reasonable 'suspicion' rather than reasonable 'belief'. While theWood Review was cited as the basis for these amendments,[34] the removal of this safeguard has not been addressed in the statement ofcompatibility, and it is noted that the removal of oversight of the CEO'sdecision was not part of the Wood Review's recommendation.[35]

1.20 Also relevant to the proportionality of the measures is the nature andextent of the information, documents or things that may be required pursuant toa disclosure notice (for example, the extent to which a person may be requiredto disclose personal information, and whether a person may be required toprovide bodily samples for testing purposes). The statement of compatibilityprovides no information in this regard and it is noted that the ASADA Actprovides that the information, documents or things can be anything that isspecified in the notice.[36] This raises questions as to whether the measures are appropriatelycircumscribed. It is also noted that the Australian Sports Anti-DopingAuthority Amendment (Sport Integrity Australia) Bill 2019 seeks to overhaulASADA, to give the CEO the significantly broader responsibility of investigatingthreats to 'sports integrity', which would include doping, manipulation ofsporting competitions, and the abuse of children in a sporting environment. Assuch, the disclosure notice framework would apply to a much broader range ofconduct.

1.21 In summary, the bill seeks to lower the threshold for the CEO of ASADA toissue a disclosure notice, requiring persons to answer questions or provideinformation, documents or things regarding a suspected doping violation, whichmay include personal information. These measures therefore engage and limit theright to privacy.

1.22 In order to assess the proportionality of the proposed measures with theright to privacy, more information is required as to:

what, if any, oversight would apply to the CEO's decision to issue a disclosure notice, noting that the bill seeks to remove the need to have the agreement of three members of the Anti-Doping Rule Violation Panel;
whether there are other, less rights restrictive, methods for investigating doping related matters when the CEO suspects (but does not yet believe) a contravention may have occurred; and
the nature of the information, documents or things that may be required to be provided pursuant to a disclosure notice.

Committee view

1.23 The committee notes that the bill seeks to lower the thresholdfor the Chief Executive Officer (CEO) of the Australian Sports Anti-DopingAuthority to issue a disclosure notice, requiring persons to answer questionsor provide information, documents or things regarding a suspected doping violation,which may include personal information. The committee notes the legal advice onthe bill that these measures engage and limit the right to privacy. In order toassess whether these measures constitute a proportionate limitation on theright to privacy, the committee seeks the minister's advice as to the mattersset out at paragraph [1.22].

Australian Sports Anti-Doping Authority Amendment (Sport Integrity Australia) Bill 2019[37]

Purpose	This bill seeks to amend the Australian Sports Anti-Doping Authority Act 2006 to rename the Australian Sports Anti-Doping Authority as 'Sport Integrity Australia'; provide Sport Integrity Australia with a new set of functions; list Sport Integrity Australia as an enforcement body under the Privacy Act 1988; and make consequential amendments to other Acts
Portfolio	Youth and Sport
Introduced	House of Representatives on 17 October 2019
Right	Privacy
Status	Seeking additional information

Exempting Sport Integrity Australia from aspects of the Privacy Act 1988

1.24 The bill seeks to rename the Australian Sports Anti-Doping Authority(ASADA), whose focus is on anti-doping, as Sport Integrity Australia (SIA), and provide SIA with a broader set of responsibilities andfunctions. Item 24 of the bill would establish that the SIA Chief ExecutiveOfficer (CEO) is responsible for coordinating a national approach toAustralia's response to matters relating to 'sports integrity', includingthreats to sports integrity.[38] 'Threats' to sports integrity are defined to include manipulation of sportingcompetitions, the use of drugs or doping methods in sport, the abuse ofchildren and other persons in a sporting environment and the failure to protectmembers of sporting organisations from bullying, intimidation, discriminationor harassment.[39]

1.25 Furthermore, the bill seeks to amend subsection 6(1) of the Privacy Act to include SIA as an 'enforcement body'.[40] This would have the effect that:

SIA would not be required to notify of an eligible data breach under Part IIIC of the Privacy Act, where the CEO believes on reasonable grounds that notifying the breach would be likely to prejudice one or more enforcement related activities conducted by, or on behalf of, the enforcement body;[41]
SIA would not be required to obtain an individuals' consent to collect sensitive information, where the collection of that information is reasonably necessary for, or directly related to, one or more of SIA's functions or activities;[42]
another Australian Privacy Principle (APP) entity would be able to disclose information to SIA,[43] including a person's government identifier,[44] where that entity reasonably believes that the use or disclosure of the information is reasonably necessary for one or more of SIA’s enforcement related activities;
SIA would not be required to obtain a person's consent to disclose their personal information to an overseas recipient, where that recipient is a body that performs functions, or exercises powers, that are similar to those performed or exercised by an enforcement body; [45] and
SIA would not be required to give a person access to their personal information where to do so would be likely to prejudice one or more enforcement related activities conducted by SIA.[46]

Preliminary international human rights legal advice

Right to privacy

1.26 The proposed inclusion of SIA as an enforcement body for the purposes ofthe Privacy Act, which would enable SIA to use and disclose personalinformation, engages the right to privacy.[47] The right to privacy encompasses respect for informational privacy, includingthe right to respect for private information and private life, particularly inrelation to the storing, use, and sharing of personal information.[48] The right may be subject to permissible limitations which are prescribed by lawand are not arbitrary. In order for a limitation not to be arbitrary, it mustpursue a legitimate objective, be rationally connected to that objective, andbe a proportionate means of achieving that objective.[49]

1.27 The statement of compatibility acknowledges that the proposed inclusionof SIA as an enforcement body engages the right to privacy.[50] It argues that this amendment is not arbitrary because it is 'sufficientlyprecise', noting that the exemptions only apply where the use or disclosure ofinformation is reasonably necessary for SIA's enforcement related activities.[51] However, the statement of compatibility does not go on to explain the objectivebehind providing this exemption from the Privacy Act.

1.28 In relation to the proportionality of the measures, the statement ofcompatibility notes that SIA would otherwise remain subject to the requirementsof the Privacy Act and Australian Privacy Principles.[52] It also argues that it is proportionate for SIA to be listed an enforcementbody because, while formal allegations put forward by the body would not resultin civil penalties or criminal charges, it would still have specificinvestigative powers in relation to threats to sports integrity, and theresults of such investigations would be used to pursue cases of anti-dopingrule violations, including before the National Sports Tribunal.[53] It also highlights that the current secrecy provisions within the ASADA Act,which will remain in place, act as a protection to ensure that informationcannot be inappropriately disclosed.[54]

1.29 However, it remains unclear what enforcement related activity is likelyto be carried out by the proposed SIA, particularly noting that it appears thatthe functions of SIA would be expanded beyond anti-doping, to include mattersthat threaten 'sports integrity', including suspected cases of child abuse andbullying, intimidation, discrimination or harassment.[55] The statement of compatibility does not explain what are the likely'enforcement related activity' that this exemption would apply to.

1.30 No information has been provided as to why each exemption from thePrivacy Act is required or proportionate. For example, it is unclear whatsafeguards would operate in relation to the sharing of personal informationwith overseas entities, and what steps SIA would be required to take to ensurethat personal information being shared in such a way would be protected. It isunclear why it is necessary and proportionate to give a blanket exemption fromthe need to obtain an individuals' consent to collect sensitive informationwhere it is reasonably necessary or related to SIA's broad range of functionsor activities. Furthermore, the extent of the proposed exemption from notifyingeligible data breaches where the CEO believes this would likely prejudiceenforcement related activities is unclear. For example, it is not clear ifnotification would be required once an enforcement related activity had ended.Similarly, it is unclear whether, once an enforcement related activity hadended, an individual would be able to require or otherwise request access topersonal information being held by the SIA.

1.31 In summary, the bill seeks to expand the functions currently beingexercised by the Australian Sports Anti-Doping Authority. In exercising thesebroader functions, the newly named Sport Integrity Australia would also begiven the status of an 'enforcement body' for the purposes of the PrivacyAct 1988, thereby enlivening a number of powers in relation to thegathering, sharing and control over access to personal information. These proposedmeasures engage and may limit the right to privacy.

1.32 More information is required in order to assess the compatibility ofthis measure with the right to privacy, in particular:

the legitimate objective that the measure seeks to address (including any reasoning or evidence that establishes that the objective addresses a substantial and pressing concern);
the type of information it is anticipated that SIA would obtain and/or share in addressing threats to 'sports integrity' (including what investigations are likely to be conducted by SIA in relation to the abuse of children and any bullying, intimidation, discrimination or harassment in a sporting environment);
whether there are any other, less rights restrictive, methods to achieve the stated objective;
whether an eligible data breach would be required to be notified once any prejudice to an enforcement related activity has ceased; and
what safeguards would protect the privacy of personal information which SIA could share (including with overseas entities).

Committee view

1.33 The committee notes that the bill seeks to expand the functionscurrently being exercised by the Australian Sports Anti-Doping Authority. Inexercising these broader functions, the newly named Sport Integrity Australiawould also be given the status of an 'enforcement body' for the purposes of the Privacy Act 1988, thereby enlivening a number of powers in relation tothe gathering, sharing and control over access to personal information. Thecommittee notes the legal advice that these measures engage and may limit theright to privacy. In order to assess whether these measures constitute aproportionate limitation on the right to privacy, the committee seeks the minister'sadvice as to the matters set out at paragraph [1.32].

Broadcasting Services (Transmitter Access) Regulations 2019 [F2019L01248][56]

Purpose	These regulations repeal and re-make the Broadcasting Services (Transmitter Access) Regulations 2001, while making amendments to Australian Competition and Consumer Commission arbitration proceedings. This includes making some offence provisions strict liability and reducing the corresponding penalties, removing the defence of 'reasonable excuse' in relation to witnesses, and enabling the Commission to make some decisions based on paper submissions only
Portfolio	Communications, Cyber Safety and the Arts
Authorising legislation	Broadcasting Services Act 1992
Last day to disallow	15 sitting days after tabling (tabled in both the House of Representatives and the Senate on 14 October 2019).
Right	Freedom of expression and assembly
Status	Seeking additional information

'Insulting' or 'disturbing' an Australian Competition and Consumer Commission arbitration proceeding

1.34 This legislative instrument deals with the arbitration of disputes bythe Australian Competition and Consumer Commission (the ACCC) in relation toaccess to broadcasting transmission towers and designated associated facilitiesunder various provisions in the Broadcasting Services Act 1992 (theAct).

1.35 These regulations repeal and replace the Broadcasting Services(Transmitter Access) Regulations 2001, which were due to sunset. Under section31 of the regulations, a person commits an offence if they:

insult, disturb or use insulting language towards a member of the ACCC who is exercising powers, or performing functions or duties, as a member of the ACCC for the purposes of an arbitration hearing;
interrupt an arbitration hearing; or
create a disturbance, or participate in creating or continuing a disturbance, in a place where an arbitration hearing is being conducted.

1.36 The penalty for this offence is 30 penalty units (currently $6,300).[57]

Preliminary international human rights legal advice

Rights to freedom of expression and assembly

1.37 Prohibiting the use of 'insulting' language or communication, or the creationof a disturbance (which could include a lawful peaceful protest) in a placewhere an ACCC arbitration hearing is being held, engages and may limit therights to freedom of expression and assembly.

1.38 The right to freedom of expression includes the freedom to seek, receiveand impart information and ideas of all kinds, either orally, in writing orprint, in the form of art, or through any other media of an individual'schoice.[58] This right embraces expression that may be regarded as deeply offensive,subject to the provisions of article 19(3) and article 20 of the InternationalCovenant on Civil and Political Rights (ICCPR).[59] The right to freedom of assembly protects the freedom of individuals and groupsto meet and engage in peaceful protest and other forms of collective activityin public, even if it is disruptive.[60] The rights to freedom of expression and assembly may be subject to permissiblelimitations that are necessary to protect the rights or reputations of others,national security, public order, or public health or morals.[61] The limitations must be rationally connected and proportionate to suchobjectives.[62]

1.39 The statement of compatibility does not acknowledge that section 31 ofthe regulations engages the rights to freedom of expression and assembly, andso no information is provided to explain whether the limitation is permissible.In particular, the objective of the measures is not clear, nor whether thereare any relevant safeguards to ensure they do not operate overly broadly.

1.40 In summary, prohibiting the use of insulting language and the creationof any disturbances in a place where an arbitration hearing of the AustralianCompetition and Consumer Commission is being held, engages and limits therights to freedom of expression and assembly. This is not acknowledged in thestatement of compatibility.

1.41 Further information is required in order to assess the compatibility ofthis measures with the rights to freedom of expression and assembly, and inparticular:

what is the objective of the measure;[63]
are there are any less rights restrictive means of achieving this objective; and
what safeguards are in place to protect the rights to freedom of expression and assembly.

Committee view

1.42 The committee notes that the instrument prohibits the use ofinsulting language and the creation of any disturbances in a place where anarbitration hearing of the Australian Competition and Consumer Commission isbeing held. The committee notes the legal advice that this engages and limitsthe rights to freedom of expression and assembly, which is not considered inthe statement of compatibility. The committee seeks the minister's advice as tothe compatibility of this measure with the rights to freedom of expression andassembly,[64] and in particular the matters set out at paragraph [1.41].

Fair Work (Registered Organisations) Amendment (Ensuring Integrity No. 2) Bill 2019[65]

Purpose	This bill seeks to amend the Fair Work (Registered Organisations) Act 2009 to expand the grounds on which a person can be disqualified from holding office in a union; expand the grounds on which the registration of unions may be cancelled; expand the grounds for a union to be placed into administration and provide a public interest test for amalgamations
Portfolio	Industrial Relations
Introduced	House of Representatives, 4 December 2019
Rights	Freedom of association; right to form and join trade unions; just and favourable conditions at work
Status	Seeking additional information[66]

Disqualification of individuals from holding office in a union

1.43 Schedule 1 of the bill would expand the circumstances in which a personcan be automatically disqualified from holding office in a registeredorganisation and make it a criminal offence for a person who is disqualifiedfrom holding office in a registered organisation to continue to hold office oract in a manner that would significantly influence the organisation.[67]

1.44 Specifically, Schedule 1 seeks to amend the Fair Work (RegisteredOrganisations) Act 2009 to include a discretionary regime ofdisqualification. The Fair Work Commissioner (the Commissioner) would be ableto apply to the Federal Court for an order disqualifying a person from holdingoffice in a union. The Federal Court could disqualify a person if satisfiedthat a ground for disqualification applies and it would not be unjust todisqualify the person having regard to the nature of the ground, thecircumstances and any other matters the court considers relevant. Underproposed section 223[68] the grounds for the disqualification include:

a 'designated finding' or contempt in relation to designated law;[69] or
contempt of court in relation to an order or injunction under any law (other than designated law);
two or more failures to take reasonable steps to prevent such conduct by a union while the person was an officer of that union;
breach of directors' and officers' duties; or
a person is not a 'fit and proper' person having regard to a range of factors.[70]

1.45 The bill seeks to make it a criminal offence for a person who isdisqualified from holding office in a registered organisation to run for, holdor continue to hold office or act in a registered organisation.[71]

1.46 Under proposed section 9C[72] a 'designated finding' is defined to include a conviction against the personfor an offence against a 'designated law' or any order for the person to pay apecuniary penalty.[73]

Preliminary international human rights legal advice

Right to freedom of association and the right to just and favourable conditions at work

1.47 Expanding the circumstances in which individuals can be disqualifiedfrom holding office in a union engages and limits the right to freedom ofassociation, the right to just and favourable conditions at work and inparticular the right of unions to elect their own leadership freely. The rightto freedom of association includes the right to form and join trade unions. Theright to just and favourable conditions of work also encompasses the right toform trade unions. These rights are protected by the International Covenant onCivil and Political Rights (ICCPR) and the International Covenant on Economic,Social and Cultural Rights (ICESCR).[74]

1.48 The interpretation of these rights is informed by International LabourOrganization (ILO) treaties, including the ILO Convention of 1948 concerningFreedom of Association and Protection of the Right to Organize (ILO ConventionNo. 87) and the ILO Convention of 1949 concerning the Right to Organiseand Collective Bargaining (ILO Convention No. 98).[75] ILO Convention 87 protects the right of workers to autonomy of union processesincluding electing their own representatives in full freedom, organising theiradministration and activities and formulating their own programs withoutinterference.[76] Convention 87 also protects unions from being dissolved, suspended orde-registered and protects the right of workers to form organisations of theirown choosing.[77]

1.49 International supervisory mechanisms have explained the scope of theserights and noted that:

The right of workers' organizations to elect their own representatives freely is an indispensable condition for them to be able to act in full freedom and to promote effectively the interests of their members. For this right to be fully acknowledged, it is essential that the public authorities refrain from any intervention which might impair the exercise of this right, whether it be in determining the conditions of eligibility of leaders or in the conduct of the elections themselves.[78]

1.50 The right to freedom of association may be subject to permissiblelimitations providing certain conditions are met. Generally, to be capable ofjustifying a limit on human rights, the measure must address a legitimateobjective, be rationally connected to that objective and be a proportionate wayto achieve that objective. However, article 22(3) of the ICCPR and article 8 ofICESCR expressly provide that no limitations are permissible on this right ifthey are inconsistent with the guarantees of freedom of association and theright to collectively organise contained in ILO Convention No. 87.

1.51 The statement of compatibility identifies the objective of the measureas being to 'protect the interests of workers and ensure that they arerepresented by officers who demonstrate a willingness to uphold standardsreasonable [sic] expected of person with the responsibility of holdingoffice in an organisation.'[79] It points to recommendations from the Royal Commission into Trade UnionGovernance and Corruption (Heydon Royal Commission) in support of thisobjective.[80] The statement of compatibility further explains that the measure, by ensuringthat officers who deliberately disobey the law are restricted in their abilityto be in charge of registered organisations, addresses these objectives.[81] The objective identified is likely to constitute a legitimate objective for thepurposes of international human rights law.

1.52 The statement of compatibility states that providing for the possibilityof disqualification from office and restricting who can be elected isrationally connected to the legitimate objective sought, that it is a 'rationalmeans of ensuring greater compliance with the standards of conduct reasonablyexpected of officers, and a rational method for improving governance oforganisations more generally.'[82] However, conduct that could result in disqualification is extremely broad andincludes a 'designated finding', that is, a finding of a contravention of anindustrial relations law (including contraventions that are less serious innature) such as taking unprotected industrial action, which members may havedecided to be in their best interests. As set out below, this raises questionsabout its rational connection to the stated objective of protecting the interestsof members.

1.53 The statement of compatibility further provides that the measure is aproportionate limitation and notes a number of safeguards that 'will only beenlivened when it comes to protecting the interest of members of registeredorganisations', including Federal Court administration and supervision of thedisqualification process,[83] and limiting standing to the Commissioner to apply for discretionarydisqualification thereby 'ensuring that it is the independent regulator ofregistered organisations alone who has standing to apply.'[84] Further, the bill places the onus on the Commissioner to satisfy the court thatdisqualification would not be unjust,[85] and it also prohibits the Federal Court from making an order fordisqualification unless it is satisfied that it would not be unjust.[86]

1.54 Schedule 6 also provides that the Commissioner, in carrying out theirfunctions, must give priority to matters that raise serious or systemicconcerns[87] which the explanatory memorandum explains will ensure there will be 'acomparatively lesser focus on trivial or otherwise minor matters,'[88] which may operate as a safeguard to the expanded powers of the Commissionerunder this bill.

1.55 However, while these are relevant safeguards, in particular thatdisqualification orders are to be made by the Federal Court, which is to besatisfied that the disqualification is not unjust, it is unclear that thesealone are sufficient to ensure that the measure constitutes a proportionatelimitation. Relevantly, conduct that could result in disqualification isextremely broad and includes a 'designated finding', that is, a finding of acontravention of an industrial relations law (including contraventions that areless serious in nature). This would include taking unprotected industrialaction.[89]

1.56 As an aspect of the right to freedom of association, the right to strike(or take industrial action) is protected and permitted under international law.[90] The existing restrictions on taking industrial action under Australian domesticlaw have been consistently criticised by international supervisory mechanismsas going beyond what is permissible under international law.[91] It appears that the proposed measure could lead to the disqualification of anindividual for conduct that may be protected as a matter of international law.In this respect the measure would appear to further limit the right to strike.Additionally, this aspect of the measure raises questions about its rationalconnection to the stated objective of protecting the interests of members, wheremembers may be of the view that taking particular forms of industrial actionare in their interests.

1.57 It is further noted that under the proposed measure a person may bedisqualified from holding office in a union on the basis of their failure totake reasonable steps to prevent more than one contravention by their unionthat amounts to a 'designated finding' or contempt of court or that relates totwo or more civil designated findings that total at least 900 penalty units.[92] As noted above, 'designated findings' are defined to apply in relation to abroad range of contraventions of industrial law including taking unprotectedindustrial action. Where a union has engaged in two or more suchcontraventions, the effect of the measure could be that the entire electedunion leadership could be subject to disqualification. This is regardless ofwhether or not union members agreed to participate in, for example, conductwhich led to 'designated findings' or contempt of court and whether theyconsidered that this was in their best interests.

1.58 In this respect, disqualification processes may have a very extensiveimpact on freedom of association more broadly. It is unclear from theinformation provided in the statement of compatibility how the breadth andimpact of this measure is rationally connected to the stated objective of'improving the governance of registered organisations and protecting theinterests of members' and whether the measure is the least rights restrictiveway of achieving this objective as required in order to be a proportionatelimitation on human rights.

1.59 In order to assess whether these are permissible limitations on therights to freedom of association and just and favourable conditions at work,further information is required as to:

how the measure is effective to achieve (that is, rationally connected to) its stated objective, noting in particular concerns regarding the impact of the measures on the right to strike, which union members may consider to be in their best interests; and
whether the limitation is a reasonable and proportionate measure to achieve the stated objective (in particular, whether the measure is the least rights restrictive way of achieving its stated objective; the extent of the limitation including in respect of the right to strike noting previous concerns raised by international supervisory mechanisms and the existence of relevant safeguards).

Committee view

1.60 The committee notes that the bill would expand the circumstancesin which a person can be automatically disqualified from holding office inregistered organisations. The committee notes the legal advice that thisengages and limits the right to freedom of association and the right to justand favourable conditions at work.

1.61 In order to assess the permissibility of any limitation underinternational human rights law, the committee seeks the minister's advice as tothe matters set out at paragraph [1.59].

Cancellation of registration of registered organisations

1.62 The registration of a union under the Fair Work (RegisteredOrganisations) Act 2009 grants the organisation a range of rightsand responsibilities, including representing the interests of its members. Schedule 2 of the bill seeks to expand the grounds for the cancellation of theregistration of unions under this Act. Under proposed section 28 the Fair WorkCommissioner can apply to the Federal Court for an order cancellingregistration of an organisation, if the Commissioner considers there aregrounds for such cancellation,[93] including:

if the organisation or parts of it have acted in their own interest rather than that of their members, or acted contrary to the interests of members, or not complied with designated laws;[94]
if the organisation has been found to have committed serious breaches of criminal laws (defined as an offence punishable by at least 1,500 penalty units);[95]
if there have been multiple designated findings against a substantial number of members.[96]

1.63 The bill also aims at simplifying some of the existing grounds forcancellation, including:

that the organisation has failed to comply with an order or injunction;[97]
that the organisation or a substantial number of members have organised or engaged in 'obstructive industrial action'.[98]

1.64 Under proposed section 28J, the court may cancel the organisation'sregistration if the court finds the ground is established and if theCommissioner satisfies the court that it would not be unjust to cancel theregistration (having regard to the nature of the matters constituting thatground; the action (if any) that has been taken by or against the organisation;the best interests of the members of the organisation as a whole and any othermatters the court considers relevant).

1.65 The Federal Court would also be empowered to make a range of alternativeorders including the disqualification of certain officers, the exclusion ofcertain members or the suspension of the rights of the organisation.[99]

Preliminary international human rights legal advice

Right to freedom of association and the right to just and favourable conditions at work

1.66 By expanding the grounds on which unions can be de-registered orsuspended, the measure engages and limits the right to freedom of associationand the right to just and favourable conditions at work. In this respect, it isnoted that international supervisory mechanisms have recognised the importanceof registration as 'an essential facet of the right to organize since that isthe first step that workers' or employers; organizations must take in order tobe able to function efficiently, and represent their members adequately'.[100] They have further noted that 'the dissolution of trade union organizations is ameasure which should only occur in extremely serious cases' noting the seriousconsequences for the representation of workers.[101]

1.67 Although the statement of compatibility contends that this measure doesnot limit the ability of individuals to form and join trade unions, itnevertheless provides some information as to whether the limitation on theright to freedom of association is permissible.[102] It states that the 'an organisation that obeys the law and complies with itsrules is not at risk of having its registration cancelled,' and that themeasure has the 'sole objective of protecting the interests of members and promotingpublic order by ensuring that an organisation is administered lawfully.'[103]

1.68 The protection of the interests of members and the maintenance of publicorder may be considered legitimate objectives for the purposes of internationalhuman rights law. However, it must be shown that the limitation imposed by themeasure is effective to achieve (that is, rationally connected to) andproportionate to these stated objectives.

1.69 The statement of compatibility argues that the proposed measures providea clearer and more streamlined scheme, thereby improving the effectiveness ofprovisions in the Act concerning cancellation of registration of organisations.It seeks to achieve this through addressing the costly and lengthyderegistration process and through 'facilitat[ing] the continued existence andfunctioning of an organisation or some of its component parts in circumstancesin which one part of the organisation is affected by maladministration ordysfunction associated with a culture of lawlessness'.[104] While the measures may undoubtedly make the deregistration of unions easier,many of the grounds for cancellation could relate to less seriouscontraventions of industrial law or to taking unprotected industrial actionsuch that it is unclear how the cancellation of union registration wouldnecessarily be in the interests of members or would guarantee the democraticfunction of the organisation. For example, union members may havedemocratically decided to take unprotected industrial action and hold the viewit is in their best interests to do so.

1.70 As set out above at [1.56], restrictions on taking industrial action inAustralian domestic law have been subject to serious criticisms byinternational treaty monitoring bodies as going beyond permissible limitationson the right to strike as an aspect of the right to freedom of association.Cancelling the registration of unions for undertaking such conduct furtherlimits the right to freedom of association. It is further noted that the courtwould be empowered to exclude particular members from union membership in a waythat would appear to undermine their capacity to be part of a union of theirchoosing. The breadth of the proposed power to cancel union registration raisesspecific questions about whether it is sufficiently circumscribed with respectto its stated objectives, so as to be a proportionate limitation on therelevant rights.

1.71 The statement of compatibility provides some arguments about theproportionality of the measure and in particular notes the availability ofcertain safeguards. These include the possibility of the court makingalternative orders, instead of cancellation, and the fact that orders forcancellation may be limited to part of an organisation that has beenundertaking conduct. The statement of compatibility states that the billcontains three new safeguards that were not in the 2017 version of the bill,including the onus being placed on the Commissioner to satisfy the court thatderegistration (or the making of alternative orders) would not be unjust; thatthe court is prohibited from making an order unless it is satisfied that,having regard to the gravity of the matters constituting the ground,cancellation would not be unjust;[105] and that the Commissioner must give priority to matters that raise serious orsystemic concerns.[106]

1.72 While the role of the court assists with the proportionality of themeasures, in view of the breadth of the grounds for cancellation of unionregistration, these may not be sufficient to ensure that the limitation is theleast rights restrictive way to achieve the stated objectives.

1.73 In order to assess whether these are permissible limitations underinternational human rights law, further information is required as to:

how de-registering an organisation, in addition to other sanctions for non-compliance with particular laws, including industrial relations laws, would achieve the stated objectives of 'protecting the interests of members' and promoting public order, noting in particular that many of the grounds for cancellation could relate to less serious contraventions of industrial law or taking unprotected industrial action, which members may have decided to be in their best interests;
whether the limitation is a reasonable and proportionate measure to achieve the stated objectives (in particular whether the grounds for cancellation of registration are sufficiently circumscribed); and
the extent of the limitation in respect of the right to strike, noting previous concerns raised by international supervisory mechanisms.

Committee view

1.74 The committee notes that the bill seeks to expand the grounds forthe cancellation of the registration of unions. The committee notes the legaladvice that this engages and limits the right to freedom of association and theright to just and favourable conditions at work.

1.75 In order to assess the permissibility of any limitation underinternational human rights law, the committee seeks the minister's advice as tothe matters set out at paragraph [1.73].

Placing unions into administration

1.76 The bill seeks to expand the grounds for a remedial scheme to beapproved by the Federal Court including through the appointment of anadministrator.[107]

1.77 Proposed new section 323 enables the Federal Court to make a declarationon a number of bases including that 'an organisation or part of an organisationhas ceased to exist or function effectively'.[108]

1.78 Proposed subsection 323(4) provides that an organisation will haveceased to 'function effectively if the court is satisfied that officers of theorganisation or a part of an organisation have, on multiple occasions,contravened designated laws; or misappropriated funds of the organisation orpart; or otherwise repeatedly failed to fulfil their duties as officers of theorganisation or part of the organisation.

1.79 If a court makes a declaration under proposed section 323 that anorganisation or its officers are dysfunctional, have engaged in misconduct orpositions are vacant, etc, then it may order a scheme to resolve thecircumstances of the declaration including providing for the appointment of anadministrator; reports to be given to a court; when the scheme begins and endsand when elections (if any) are to be held.[109]

Preliminary international human rights legal advice

Right to freedom of association and the right to just and favourable conditions at work

1.80 By allowing for unions to be placed into administration, the measureengages and limits the right to freedom of association and in particular theright of unions to organise their internal administration and activities and toformulate their own programs without interference. International supervisorymechanisms have noted that '[t]he placing of trade union organizations undercontrol involves a serious danger of restricting the rights of workers'organizations to elect their representatives in full freedom and to organizetheir administration and activities.'[110]

1.81 The statement of compatibility states that the measure has:

the sole objective of protecting the interests of members and guaranteeing the democratic functioning of organisations under the stewardship of officials and a membership that respects the law and thus maintain public order.[111]

1.82 Later the statement of compatibility states that the changes pursue thelegitimate objective of ensuring that organisations are functioning effectivelyto be able to serve the interests of their members, and goes on to state:

The amendments are rationally connected to this objective because the new grounds for a declaration are all instances of an organisation not acting in the interests of their members and therefore not functioning effectively.[112]

1.83 While ensuring that registered organisations act in the interests oftheir members may constitute a legitimate objective, it is not clear that thenew grounds on which an organisation can be forced into administration, allrelate to the organisation not acting in the interests of its members. Inaddition, while some of the proposed grounds for a declaration may berationally connected to the stated objectives, some of the grounds may captureconduct that does not run contrary to the interest of members. In discussingproportionality, the statement of compatibility identifies a range of matterswhich do not address the proportionality of the measure but rather address theaims or goals of the regime.[113] The test of proportionality is concerned with whether a measure is sufficientlycircumscribed in relation to its stated objective, including the existence ofeffective safeguards. In this respect, concerns arise regarding the scope ofconduct that may lead a union to be placed into administration. Given thepotential breadth of definition of 'designated laws',[114] the proposed measure makes it possible for a declaration to be made in relationto less serious breaches of industrial law or for taking unprotected industrialaction. This is a concern because placing a union under administration may havesignificant consequences in terms of the representational rights of employeesand any current campaigns or disputes.

1.84 In order to assess whether these are permissible limitations underinternational human rights law, further information is required as to:

how the measure is effective to achieve (that is, rationally connected to) the objective of protecting the interests of members (noting, for example, that members may have determined it was in their interests to take unprotected strike action, which could contravene a designated law); and
whether the measure is proportionate to the objectives sought to be achieved, in particular, whether the grounds for placing organisations under administration are sufficiently circumscribed.

Committee view

1.85 The committee notes that the bill seeks to expand the grounds onwhich organisations may be placed under administration. The committee notes thelegal advice that this engages and limits the right to freedom of associationand the right to just and favourable conditions at work.

1.86 In order to assess the permissibility of any limitation underinternational human rights law, the committee seeks the minister's advice as tothe matters set out at paragraph [1.84].

Introduction of a public interest test for amalgamations of unions

1.87 Under proposed section 72A, before fixing a date for an amalgamation ofunions, the Fair Work Commission must decide if the public interest test is toapply to the amalgamation, and if so, decide whether the amalgamation is in thepublic interest.[115] The Commission may only decide that the public interest test is to apply to aproposed amalgamation if there is information before the Commission that thereare at least 20 compliance record events for an organisation (such as adesignated finding against the organisation, contempt of court or engaging incertain industrial action)[116] within the 10 year period prior to an application for approval.[117] In determining whether an amalgamation is in the 'public interest' the FairWork Commission must have regard to a range of factors including any compliancerecord events for each of the existing organisations and whether theamalgamation is otherwise in the public interest having regard to the impact itis likely to have on employees and employers in the industry, and may haveregard to any other matter it considers relevant.[118] In relation to compliance record events, if having regard to the incidence, ageand gravity of the events the Commission considers the organisation has arecord of not complying with the law, the Commission must decide that theamalgamation is not in the public interest.[119]

Preliminary international human rights legal advice

Rights to freedom of association and to just and favourable conditions at work

1.88 By inserting a public interest test in relation to the amalgamation oforganisations, the measure engages and limits the rights to freedom ofassociation and to just and favourable conditions at work, and particularly theright to form associations of one's own choosing. International supervisorymechanisms have noted concerns with measures that limit the ability of unionsto amalgamate stating that '[t]rade union unity voluntarily achieved should notbe prohibited and should be respected by the public authorities.'[120]

1.89 The statement of compatibility identifies the objective of the measureas being to 'improve organisational governance, protect the interests ofmembers, ensure that organisations meet the minimum standards set out in theAct, and address community concerns by creating a disincentive for a"culture of contempt for the rule of law" that has been identified insome registered organisations.'[121] The statement of compatibility states that this addresses a pressing andsubstantial concern as required to constitute a legitimate objective for thepurposes of international human rights law.

1.90 In relation to whether the measure is likely to be effective to achieveits stated objectives, the statement of compatibility states that 'it willreduce the risk of an adverse effect of an amalgamation of existingorganisations,' and that the 'application of the public interest test tomergers of organisations with a substantial history of breaking workplace lawswill curtail the potential spread of lawbreaking culture from one organisationto another.'[122] The statement of compatibility argues that the measure is reasonable andproportionate, and that 'it is sufficiently circumscribed in that it will notto apply to amalgamations of law abiding organisations.'[123] Further, it is noted that there is a safeguard in the requirement that a fullbench of the Federal Court consider whether a proposed amalgamation should besubject to the public interest test in the bill.

1.91 However, it cannot be assumed that industrial disputes necessarily haveadverse effects given that the right to take industrial action is protected asa matter of international law. In this respect, international treaty monitoringbodies have consistently viewed this right 'by workers and their organizationsas a legitimate means of defending their economic and social interests'. Thisraises concerns both as to whether the proposed measures are rationallyconnected to the legitimate objectives identified, including protecting theinterests of members, and as to whether the proposed measures are proportionatelimitations on rights (given the significant impact on rights including theright to take industrial action).

1.92 In order to fully assess the compatibility of the proposed measure withinternational human rights law, further information is required as to:

how each aspect of the application of the 'public interest' test is effective to achieve (that is, rationally connected to) the stated objectives;
whether making amalgamations of an organisation subject to a public interest test is reasonable and proportionate to achieving the stated objective. In particular, more information is required as to whether the measure is the least rights restrictive way of achieving the objectives, is sufficiently circumscribed, and the extent of the limitation with respect to the right to strike (noting concerns raised by international supervisory mechanisms).

Committee view

1.93 The committee notes that the bill seeks to insert a publicinterest test before organisations can amalgamate. The committee notes thelegal advice that this engages and limits the right to freedom of associationand the right to just and favourable conditions at work.

1.94 In order to assess the permissibility of any limitation underinternational human rights law, the committee seeks the minister's advice as tothe matters set out at paragraph [1.92].

Legislation (Deferral of Sunsetting—Sydney Harbour Federation Trust Regulations) Certificate 2019 [F2019L01211][124]

Purpose	This instrument defers the sunsetting of the Sydney Harbour Federation Trust Regulations 2001 for two years
Portfolio	Attorney-General's
Authorising legislation	Sydney Harbour Federation Trust Act 2001
Last day to disallow	15 sitting days after tabling (tabled in the Senate and the House of Representatives on 14 October 2019).
Rights	Freedom of expression; assembly
Status	Seeking additional information

Extension of prohibition on public assembly

1.95 This legislative instrument defers the sunsetting of the Sydney HarbourFederation Trust Regulations 2001 [F2010C00261] (the regulations) for twoyears. The regulations apply to the management of 'Trust land' under the SydneyHarbour Federation Trust Act 2001 (the Act).

1.96 Section 11 of the regulations provides that '[a] person must notorganise or participate in a public assembly on Trust land.' 'Trust land' isdefined in section 3 and listed in Schedules 1 and 2 of the Act. It includes anumber of Lots in Middle Head, Georges Heights, Woolwich, and Cockatoo Island.A 'public assembly' is defined in section 11(3) to include an organisedassembly of persons for the purpose of holding a meeting, demonstration,procession or performance.

1.97 Section 23(d) provides that the activity that would otherwise be anoffence under section 11 is not an offence if it 'is authorised by a licence orpermit' granted by the Trust. Section 25 provides for the application of such alicence or permit, and for review of any decision made by the Sydney HarbourFederation Trust in the Administrative Appeals Tribunal (AAT).

Preliminary international human rights legal advice

Rights to freedom of expression and assembly

1.98 The right to freedom of opinion and expression extends to thecommunication of information or ideas through any medium, including publicprotest.[125] The right to freedom of assembly protects the freedom of individuals and groupsto meet and engage in peaceful protest and other forms of collective activityin public.[126]

1.99 The rights to freedom of expression and assembly may be subjectto limitations that are necessary to protect the rights or reputations ofothers, national security, public order, or public health or morals.[127] Such limitations must be prescribed by law, be rationally connected (that is,effective to achieve) and proportionate to achieving the prescribed purpose.[128] In determining whether limitations on the freedom of expression areproportionate, the UN Human Rights Committee has previously noted thatrestrictions on the freedom of expression must not be overly broad.[129]

1.100 By providing a blanket prohibition against organising orparticipating in organised assemblies, the regulations engage and appear tolimit the rights to freedom expression and assembly. The statement ofcompatibility to the instrument does not acknowledge that this measure engageshuman rights. Instead, it focuses on the effect of the deferral instrument,rather than the substantive effect of continuing the regulations that have beendeferred.[130] As the legal effect of deferring the regulations is that they remain in force,it would be appropriate for the statement of compatibility to focus on thesubstantive effect of the regulations.

1.101 Without this information, it is difficult to assess whether thelimitation on the rights to freedom of expression and assembly imposed by thecontinuation in force of a measure that limits peaceful protest on Trust landis rationally connected to an objective that is 'necessary to protect therights or reputations of others, national security, public order, or publichealth or morals', and whether it can be considered a proportionate means ofachieving this objective.

1.102 In summary, the instrument defers the sunsetting of the regulations fortwo years, thereby continuing in operation a measure that prohibits publicassembly on public land without a permit. This, thereby, engages and limits therights to freedom of expression and assembly, which has not been acknowledged bythe statement of compatibility.

1.103 More information is therefore required in order to assess thecompatibility of this measure with the rights to freedom of expression andassembly, and in particular:

what is the objective underlying the broad prohibition of public assemblies on Trust Land contained in section 11 of the Sydney Harbour Federation Trust Regulations 2001; [131]
whether there are any less rights restrictive means of achieving this objective; and
the availability of safeguards to protect the rights to freedom of expression and assembly.

Committee view

1.104 The committee notes that the instrument defers the sunsetting ofthe regulations for two years, thereby continuing in operation a measure thatprohibits public assembly on public land without a permit. The committee notesthe legal advice that this engages and limits the rights to freedom ofexpression and assembly, which has not been considered in the statement ofcompatibility. The committee therefore seeks the Attorney-General's advice asto the compatibility of this measure with the rights to freedom of expressionand assembly,[132] as set out above at paragraph [1.103].

National Museum of Australia Regulations 2019 [F2019L01273][133]

Purpose	This instrument repeals and remakes the National Museum of Australia Regulations 2000 with some changes to provide for the Director of the Museum to appoint authorised officers, to give powers to authorised officers, and to provide for persons or groups of persons who are prohibited from entering Museum premises to apply to the Administrative Appeals Tribunal for review of that decision
Portfolio	Communications, Cyber Safety and the Arts
Authorising legislation	National Museum of Australia Act 1980
Last day to disallow	15 sitting days after tabling (tabled in the Senate and the House of Representatives on 14 October 2019).
Rights	Freedom of expression; freedom of assembly; privacy
Status	Seeking additional information

Removal from Museum

1.105 Section 14 of the National Museum of Australia Regulations 2019[F2019L01273] (the regulations) empowers an authorised officer[134] to direct a person to leave the National Museum of Australia (the Museum) for arange of reasons, including where they reasonably believe the person is 'likelyto cause offence' to staff or members of the public. Section 15 allows anauthorised officer to apprehend a person where they refuse to comply with adirection made under section 14 and to use such force as is reasonablynecessary to either remove the person from Museum premises or to hold themuntil they can be taken into the custody of police.[135]

1.106 Section 13 of the regulations further empowers an authorised officer toprohibit entry to a person or group of persons under certain circumstances,including where the officer has reasonable grounds for believing that:

the person has, under sections 14 or 15, been directed to leave, or removed from, Museum premises on one or more occasions; or
the conduct of the person or group on or in Museum premises will cause, or is likely to cause, offence to staff or members of the public.

Preliminary international human rights legal advice

Right to freedom of expression and assembly

1.107 The right to freedom of expression extends to the communication ofinformation or ideas through any medium, including written and oralcommunications, the media, public protest, broadcasting, artistic works andcommercial advertising.[136] This right embraces expression that may be regarded as deeply offensive,subject to the provisions of article 19(3) and article 20 of the InternationalCovenant on Civil and Political Rights (ICCPR).[137] The right to freedom of assembly protects the right of individuals and groupsto meet and engage in peaceful protest and other forms of collective activityin public.[138]

1.108 The rights to freedom of expression and freedom of assembly may besubject to limitations that are necessary to protect the rights or reputationsof others, national security, public order, or public health or morals.[139] Such limitations must be prescribed by law, be rationally connected to thelegitimate objective of the measures, and be proportionate.[140]

1.109 By empowering an authorised officer to direct a person to leave theMuseum, or to prohibit their entry, where the officer reasonably believes theperson is 'likely to cause offence' to staff or members of the public, theregulations engage and limit the rights to freedom of expression and freedom ofassembly. These rights are further engaged by the fact that the authorisedofficer is empowered to apprehend a person who refuses to comply with such adirection, and to either remove that person from Museum premises or hold themuntil they can be taken into the custody of police.

1.110 The statement of compatibility does not acknowledge that sections 13 to15 of the regulations engage the rights to freedom of expression and assembly.However, it does state that '[i]f a person is refusing to abide by a lawfuldirection of an authorised officer, the continued conduct may endanger thepublic or staff members, or could present a risk to Museum material.' Theprotection of public order and safety is a legitimate objective for thepurposes of international human rights law, and this measure appears to berationally connected to such an objective, where a direction to leave Museumpremises relates to an authorised officer having 'reasonable grounds forbelieving that public safety or the safety of staff members is, or may be,endangered.' However, it is less clear whether a direction to leave Museumpremises on the grounds that a 'person or group on or in Museum premises islikely to cause offence to members of the public or staff members',[141] is rationally connected to the objective of protecting public order or safety.

1.111 The statement of compatibility also states that these measures aredesigned to protect the rights of other individuals to enjoy the right to takepart in cultural life 'in safety and without umbrage.'[142] However, while protecting the right to take part in cultural life safely wouldappear to be a legitimate objective for the purposes of international humanrights law, it is less clear that there is a right to take part in culturallife 'without umbrage'.

1.112 In relation to the proportionality of these measures, it is relevantthat section 32 provides a right of appeal to the Administrative AppealsTribunal in relation to any decision of an authorised officer under section 13to prohibit entry onto or into Museum premises. Access to merits review is animportant safeguard. However, there is no right to merits review in relation toan exercise of power under sections 14 or 15 of the regulations (to remove aperson or group of persons from, or to direct them to leave, Museum premises)and it is unclear whether any other safeguards exist in relation to thesemeasures.

1.113 In summary, empowering an authorised officer to direct a person toleave, or prohibit entry to, the National Museum of Australia where theyreasonably believe a person is 'likely to cause offence' to staff or members ofthe public, engages and limits the rights to freedom of expression and freedomof assembly. This is not acknowledged in the statement of compatibility.

1.114 More information is required in order to assess the compatibility ofthis measure with the rights to freedom of expression and assembly, and inparticular:

what is the objective underlying the power granted to authorised officers under sections 13 to 15 of the regulations;[143]
whether there are less rights restrictive means of achieving this objective, noting the likely impact on the rights to freedom of expression and assembly; and
whether there are any safeguards to protect the rights to freedom of expression and assembly in relation to the exercise of these powers.

Committee view

1.115 The committee notes the instrument empowers an authorised officerto direct a person to leave, or prohibit entry to, the National Museum ofAustralia where they reasonably believe a person is 'likely to cause offence'to staff or members of the public. The committee notes the legal advice thatthis engages and limits the rights to freedom of expression and freedom ofassembly.

1.116 The committee therefore seeks the minister's advice as to thecompatibility of this measure with the rights to freedom of expression andassembly,[144] and in particular the matters set out at paragraph [1.114].

Taking photographs and collecting personal information

1.117 Subsection 14(2) of the regulations empowers an authorised officer totake a photograph of a person subject to a direction to leave museum premises,and to direct that person to provide their name and residential address to theauthorised officer.

Preliminary international human rights legal advice

Right to privacy

1.118 By empowering an authorised officer to take a person's photograph and todirect them to provide their personal information, such as their name andresidential address, this measure engages and limits the right to privacy. Thisis particularly the case if such information were to be displayed in a mannerthat might damage a person's reputation. The right to privacy protects againstarbitrary and unlawful interferences with an individual's privacy and attackson reputation.[145] The right to privacy includes respect for informational privacy, including theright to respect for private and confidential information, particularly the storing,use and sharing of such information.[146]

1.119 The right to privacy may be subject to permissible limitations which areprovided by law and are not arbitrary. In order for limitations not to bearbitrary, the measure must pursue a legitimate objective and be rationallyconnected to (that is, effective to achieve) and proportionate to achievingthat objective.[147] In order to be proportionate, a limitation on the right to privacy should onlybe as extensive as is strictly necessary to achieve its legitimate objectiveand must be accompanied by appropriate safeguards.

1.120 The statement of compatibility does not acknowledge that the right toprivacy is engaged and does not explain the objective behind the measure. Italso provides no information in relation to the handling of any personalinformation that might be collected. As such, it is difficult to assess thecompatibility of the measure with the right to privacy.

1.121 Further information is therefore required as to the compatibility ofthis measure with the right to privacy, and in particular:

what is the objective underlying the power granted to an authorised officer under section 14(2) of the regulations to take a photograph of a person who is subject to a direction to leave museum premises, and to direct that person to provide their name and residential address;
whether there are less rights restrictive means of achieving this objective, noting the potential impact on the right to privacy; and
whether there are any safeguards to protect the right to privacy, such as protocols around the handling, disclosure and destruction of any personal information that might be collected.

Committee view

1.122 The committee notes the instrument empowers an authorised officerto take a person's photograph and direct them to provide their personalinformation, such as their name and residential address. The committee notesthe legal advice that this engages and limits the right to privacy.

1.123 The committee therefore seeks the minister's advice as to thecompatibility of this measure with the right to privacy,[148] and in particular the matters set out at paragraph [1.121].

National Redress Scheme for Institutional Child Sexual Abuse Amendment (2019 Measures No. 1) Rules 2019 [F2019L01491][149]

Purpose	This instrument seeks to amend the National Redress Scheme for Institutional Child Sexual Abuse Rules 2018 to exclude eight Queensland grammar schools from the definition of 'State institution' in section 111 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018.
Portfolio	Families and Social Services
Authorising legislation	National Redress Scheme for Institutional Child Sexual Abuse Act 2018
Last day to disallow	15 sitting days after tabling (tabled in the House of Representatives and the Senate on 25 November 2019).
Rights	Effective remedy; rights of the child
Status	Seeking additional information

Participation in the National Redress Scheme for Institutional Child Sexual Abuse

1.124 Subsection 111(1) of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Act) provides that an institution is a 'State institution' if it is, or was, part of the State, or is, or was, a body established for public purposes by or under a law of a State. Subsection 111(2) of the Act states that an institution is not a State institution if the rules prescribe this. This instrument prescribes eight Queensland grammar schools as not being State institutions.[150]

1.125 The effect is that these eight schools will only become 'participating institutions' in the National Redress Scheme for Institutional Child Sexual Abuse if the minister makes a declaration that they are a participating non-government institution,[151] and is satisfied that the institution has agreed to participate in the scheme.[152] By contrast, a State or Territory institution may be declared to be a participating institution where the relevant State or Territory has agreed to the institution participating in the scheme.[153]

Preliminary international human rights legal advice

Rights of the child and right to an effective remedy

1.126 For an individual to be eligible for redress pursuant to this scheme, the relevant institution against which a claim is being made must be participating in the scheme.[154] The prescription of these eight grammar schools as not being State institutions for the purposes of the Act, means that they will not become participating institutions unless the minister is satisfied that the institutions themselves agree to participate in the scheme.

1.127 Access to redress for child sexual abuse pursuant to this scheme engages the obligation under international human rights law to take all appropriate measures to protect children from all forms of violence or abuse, including sexual abuse.[155] The prescription of these institutions, and the potential for delay in securing redress for individuals making a claim in relation to them, therefore engages and may limit the right to an effective remedy, as this right exists in relation to the rights of children.

1.128 The United Nations Committee on the Rights of the Child explains thatfor rights to have meaning, effective remedies must be available to redressviolations, noting that children have a special and dependent status.[156] This right to an effective remedy also exists in relation to individuals whoare now adults, but regarding conduct which took place when they were children.[157] While the statement of compatibility notes that themeasure engages the rights of the child,[158] it does not identify that the right to an effective remedy is engaged inrelation to the rights of the child. Therefore, further information is requiredin order to assess whether the prescription of these eight schools as not beingState institutions for the purposes of this scheme, limits the rights of anyindividuals to access an effective remedy for the purposes of internationalhuman rights law. In particular, further information is required as to whatother forms of redress (if any) are available for persons who may have sufferedabuse at any of these prescribed institutions, including whether there aresubstantial differences between such remedies and the established redressscheme, particularly whether other avenues would likely cause greaterdifficulty for the claimant to access the remedy.

Committee view

1.129 The committee notes that the instrument prescribes eight Queensland grammar schools that are exempt from the operation of the National Redress Scheme for Institutional Child Sexual Abuse. The committee notes the legal advice which raises potential implications with respect to the rights of the child and the corresponding right to an effective remedy. In order to assess the potential engagement of this right, the committee seeks the minster's advice in relation to the matters set out at paragraph [1.128].

Native Title Legislation Amendment Bill 2019[159]

Purpose	This bill seeks to amend the Native Title Act 1993 and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 to modify the native title claims resolution, agreement-making, Indigenous decision-making and dispute resolution processes
Portfolio	Attorney-General
Introduced	House of Representatives on 17 October 2019
Rights	Culture; self-determination; privacy
Status	Response required

Majority default rule in applicant decision-making

1.130 The bill seeks, among other things, to amend the Native Title Act1993 (NTA) to allow, as the default position, an applicant to a nativetitle claim to act by majority for all things that the applicant is required orpermitted to do under the NTA[160] and to allow a claim group to place conditions on the authority of theapplicant.[161]

1.131 The 'applicant' to a native title claim is the person or group of peopleauthorised by a native title claim group[162] to make or manage a native title claim on their behalf.[163] Once a claim has been made and has been accepted for registration by theNational Native Title Tribunal, the names of the people who make up theapplicant appear on the Register of Native Title Claims (Register). The personor persons whose names appear as the applicant on the Register are then alsocollectively known as the 'registered native title claimant'. The applicant isalso the 'native title party' for the purpose of the process through whichagreements are made under section 31 of the NTA.[164]

1.132 Currently, the default rule under the NTA is that the applicant isrequired to act jointly or unanimously when carrying out duties or performingfunctions under the NTA.[165] In McGlade v Native Title Registrar & Ors (McGlade),^[166] the Full Court of the Federal Court held that all members of the applicant—orthe registered native title claimant for the purpose of Indigenous Land UseAgreements (ILUAs)[167]—mustbe party to an area ILUA[168] before the ILUA can be registered and come into effect.[169]

1.133 The Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (2017Act) reversed the effect of McGlade by changing the default position forfuture area ILUAs so that a majority of members of the registered native titleclaimant may be party to the agreement unless otherwise determined by thegroup.[170] That Act also retrospectively validated area ILUAs that were invalidated by McGlade.[171]

1.134 Schedule 1 of the bill seeks to expand the effect of the 2017 Act sothat the applicant may act by majority as the default position for all thingsthat the applicant is required or permitted to do under the NTA.[172]

1.135 Schedule 9 of the bill also seeks to confirm the validity of section 31agreements that may potentially be affected by McGlade. The effect ofthis is that agreements made under section 31, which relate to the grant ofmining and exploration rights over land that may be subject to native title,are retrospectively validated, where at least one member of the registerednative title claimant was party to the agreement.

1.136 The bill provides that the default rule may be displaced by conditionsimposed on the authority of the applicant under proposed section 251BA,[173] such that where there is a process of decision-making that must be compliedwith under the traditional laws and customs of the persons who authorise theapplicant,[174] it must be in accordance with that process.[175] Where there is no such decision-making process, the persons can agree to andadopt a process of decision-making.[176] A similar safeguard applies in relation to section 31 agreements [177]

1.137 The bill also provides that the applicant's power to deal with allmatters to do with an application is subject to conditions of the authority ofthe applicant under proposed section 251BA,[178] and further that the Registrar must be satisfied not only that the applicant isauthorised by the claim group but also that any conditions on the authority ofthe applicant have been satisfied when registering a claim on the Register.[179]

Preliminary international human rights legal advice

Right to culture

1.138 The statement of compatibility acknowledges that by introducing amajority default rule for applicant decision-making, and by retrospectivelyvalidating section 31 agreements, the bill engages and may limit the rightto culture.[180] This is because there may be a conflict between an individual's or asub-group's right to culture, and the interests of the majority or of the groupas a whole.

1.139 All individuals have a right to culture under article 15 of theInternational Covenant on Economic, Social and Cultural Rights (ICESCR); article27 of the International Covenant on Civil and Political Rights (ICCPR) andrelated provisions provide individuals belonging to minority groups, includingIndigenous peoples, with additional protections to enjoy their own culture,religion and language.

1.140 The rights conferred under article 27 of the ICCPR have both anindividual and a group dimension: while the right is conferred on individuals,it must be exercised within the group. In the context of Indigenous peoples,the right to culture includes the right for Indigenous people to use landresources, including through traditional activities such as hunting andfishing, and to live on their traditional lands.[181]

1.141 Where there is a conflict between the wishes of individual members ofthe group and the group as a whole, international jurisprudence indicates that'a restriction on the right of an individual member of a minority must be shownto have a reasonable and objective justification and to be necessary for thecontinued viability and welfare of the minority as a whole'.[182] In other words, a limitation on the right to culture will be permissible whereit pursues a legitimate objective, is rationally connected to this objectiveand is a proportionate means of achieving this objective.

1.142 The statement of compatibility states that the objective of the majoritydefault rule is to promote 'efficient determinations of native title and nativetitle agreement making, to assist Indigenous Australians to realise the socialand economic benefits of native title'.[183] It is likely that this would be considered a legitimate objective for thepurposes of international human rights law. Allowing for applicantdecision-making by majority would also appear to be rationally connected tothis objective.

1.143 The statement of compatibility further states that the limitation on theindividual's right to culture is proportionate 'to achieving the broadergroup's right to enjoy and benefit culture'.[184] It states that the measures 'provide balance between promoting the rights ofindividuals to be consulted in relation to their cultural rights, but not tofrustrate decision-making processes in a way that would deny these rights toother individuals, or to prevent the collective enjoyment of the right toculture'.[185]

1.144 The statement of compatibility also explains the objective of validatingsection 31 agreements as providing certainty to both commercial operations and nativetitle groups in light of McGlade.[186] It states that, '[p]otential challenges to section 31 agreements may ... divertresources away from finalising native title claims to litigate affectedagreements and re-negotiate agreements that are already significantlyresource-intensive.'[187] This reasoning indicates that the measure is likely to pursue a legitimateobjective for the purposes of international human rights law, and appears to berationally connected to this objective.

1.145 The statement of compatibility identifies safeguards in the bill thatwere introduced in response to consultation and concerns being raised aroundthe risk 'that allowing majority decision-making promotes outcomes at theexpense of collective decision-making.'[188] These safeguards, in particular the safeguard requiring decision-making toaccord with traditional laws and customs (where such a process exists), or formembers of the applicant to determine an authorisation process that differsfrom the majority-default position, are important and assist theproportionality of the measures (although it should be noted that they cannotapply to the retrospective validation of section 31 agreements).

1.146 Relevant international jurisprudence also indicates that individualrights to culture can generally be restricted when to do so is in the interestsof the minority group as a whole. Requiring unanimity for all applicant decision-makingmay undermine the process of agreement-making under the NTA and to that extentmay impact on the enjoyment of the right to culture for the majority of thegroup.[189] In this respect, the measures may be a proportionate limitation on the right toculture.[190]

1.147 However, processes such as native title claims, ILUAs and section 31agreements may cover a range of serious matters. For example, matters that maybe covered by ILUAs include the extinguishment of native title rights andinterests. Accordingly, where the terms of an agreement are a matter of disputewithin the claim group, majority decision-making may profoundly affect theinterests of certain individuals or sub-groups in relation to the right toculture. It is relevant here that the law allows for decision-making inaccordance with traditional laws and customs or (where there is no suchprocess) in accordance with a process agreed to and adopted by the group,[191] which would appear to allow scope to be afforded to minority views. However, incases where there is no established traditional or customary decision-makingprocess, it remains unclear how an alternative decision-making process will beestablished by minority members in circumstances where the majority prefers amajority decision-making process. As such, ongoing monitoring and evaluation,including ongoing consultation with affected groups, may be an appropriatesafeguard to ensure that these measures do not unduly limit the right toculture.

Right to self-determination

1.148 The proposed amendments also appear to engage and seem likely to promotethe collective right to self-determination, as a minority of members would notbe able to prevent decisions being made unless the authorisation processallowed for this.

1.149 It would also appear that validation of agreements already entered intomay promote the right to self-determination insofar as it respects a group'sdecision to collectively pursue aspects of their native title rights and theireconomic, social and cultural development. It also ensures that those partiesto section 31 agreements are able to access benefits flowing from theagreement. However, it is noted that the statement of compatibility providesmore detail as to the potential risks to commercial operations (such as theimpact on mining leases) than the impact on native title holders. It would havebeen of assistance if the statement of compatibility had addressed how theretrospective validation of section 31 agreements would promote the right toself-determination.

1.150 The right to self-determination is protected by articles 1 of both theInternational Covenant on Economic, Social and Cultural Rights (ICESCR) and theInternational Covenant on Civil and Political Rights (ICCPR). The right to
self-determination, which is a right of 'peoples' rather than individuals,includes the right of peoples to freely determine their political status and tofreely pursue their economic, social and cultural development.[192]

1.151 The principles contained in the UN Declaration on the Rights ofIndigenous Peoples (the Declaration) are also relevant to the amendments inthis bill. While the Declaration is not included in the definition of 'humanrights' under the Human Rights (Parliamentary Scrutiny) Act 2011, itprovides clarification as to how human rights standards under internationallaw, including under the ICCPR and ICESCR, apply to the particular situation ofIndigenous peoples.[193] The Declaration affirms the right of Indigenous peoples to self-determination.[194]

1.152 While it is acknowledged that the measures in general promote thecollective right to self-determination,[195] the statement of compatibility also acknowledges that the measures will reducethe influence of members of the applicant who are in the minority, and anysub-groups of native title holders they represent.[196] It goes on to address the importance of enabling the reasonable expression ofminority views as part of ensuring genuine agreement, and to highlight thatthis has been accommodated through the safeguards discussed in paragraphs [1.145]and [1.147] above, which was 'broadly supported by stakeholders' duringconsultations and which allows for 'the claim group to place limitations on theapplicant's authority'.[197]

1.153 As part of its obligations in relation to respecting the right to
self-determination, Australia has an obligation under customary internationallaw to consult with Indigenous peoples in relation to actions which may affectthem.[198] The UN Human Rights Council has recently provided guidance on the right to beconsulted, stating that the right to be consulted should be understood as aright of Indigenous peoples to 'influence the outcome of decision-makingprocesses affecting them, not a mere right to be involved in such processes ormerely to have their views heard'.[199]

1.154 In this respect, the statement of compatibility explains that themeasures in the bill were informed by feedback from stakeholders following extensiveconsultation,[200] and that an Expert Technical Advisory Group advised the government on thedevelopment of the measures in the bill.[201] This extensive consultation is welcome. However, furtherinformation as to how the feedback from this consultation was incorporated intothe bill would have been of assistance in assessing human rights compatibility.

1.155 The concept of 'free, prior and informed consent' also includes the principlethat Indigenous peoples should have the freedom to be represented astraditionally required under their own laws, customs and protocols.[202] In this regard, the safeguards in the bill that allow for traditionaldecision-making processes to prevail over the default position are important.

Conclusion

1.156 Allowing native title applicants to act by majority as the default rule,and retrospectively validating section 31 agreements, engages and may limit theright to culture.

1.157 However, the effect of the measures on certain individuals' enjoyment of their right to culture must be balanced against the fact that such measures also promote the right to culture for the group as a whole. In light of this, and that members of the applicant group may determine an authorisation process that differs from the majority-default position, the measure may be a proportionate limit on the right to culture, depending on how these safeguards are implemented in practice.

1.158 The measures may promote the right to self-determination. However, whilethe statement of compatibility acknowledges that the right toself-determination is engaged by this amendment, it does not provide ananalysis as to how this right is promoted.

1.159 Noting the importance of the obligation to consult with Indigenouspeoples in relation to actions which may affect them, and the principlesoutlined in the United Nations Declaration on the Rights of Indigenous Peoples,ultimately much will depend on how the proposed amendments operate in practice.

1.160 As such, it would assist with compatibility of the bill if the bill requiredan evaluation to be conducted within an appropriate timeframe to assess theimpact of these measures on the rights to culture and self-determination (forexample, whether the safeguards are operating effectively to protect thecapacity of sub-groups to influence decisions made by the majority of thenative title claim group).

Committee view

1.161 The committee notes that this bill seeks to modify the nativetitle claims resolution, agreement-making, Indigenous decision-making anddispute resolution processes. The committee notes the legal advice thatallowing native title applicants to act by majority as the default rule, andretrospectively validating section 31 agreements, may engage and limit the rightto culture.

1.162 However, the committee notes that the effect of the measures on certain individuals' enjoyment of their right to culture must be balanced against the fact that such measures also promote the right to culture for the group as a whole. In light of this, and that members of the applicant group may determine an authorisation process that differs from the majority-default position, the committee notes the advice that these measure may be a proportionate limit on the right to culture, depending on how these safeguards are implemented in practice.

1.163 The committee also notes the advice that the measures may promotethe right to self-determination. However, while the statement of compatibilityacknowledges that the right to self-determination is engaged by this amendment,it does not provide an analysis as to how this right is promoted.

1.164 Noting the importance of the obligation to consult withIndigenous peoples in relation to actions which may affect them, and theprinciples outlined in the United Nations Declaration on the Rights ofIndigenous Peoples, the committee considers that ultimately much will depend onhow the proposed amendments operate in practice.

1.165 As such, the committee seeks the Attorney-General's advice as towhether it would be appropriate for the bill to be amended to require anevaluation to be conducted within an appropriate timeframe to assess the impactof these measures on the rights to culture and self-determination (for example,whether the safeguards are operating effectively to protect the capacity ofsub-groups to influence decisions made by the majority of the native titleclaim group).

Tertiary Education Quality and Standards Agency Amendment (Prohibiting Academic Cheating Services) Bill 2019[203]

Purpose	This bill seeks to amend the Tertiary Education Quality and Standards Agency Act 2011 to criminalise the provision and advertisement of commercial academic cheating services; and establish civil penalties regarding academic cheating services provided on a non-commercial basis and/or advertised on a non-commercial basis
Portfolio	Education
Introduced	House of Representatives, 4 December 2019
Rights	Fair trial; freedom of expression; equality and non-discrimination
Status	Seeking additional information

Prohibition of academic cheating services

1.166 This bill seeks to make it an offence for a person, for a commercialpurpose, to provide, offer to provide, or arrange for a third person to providean 'academic cheating service' to a student undertaking higher education.[204] This offence would be punishable by imprisonment for two years, or 500 penaltyunits (currently $105,000),[205] or both. Pursuant to subsection 114A(3), the same conduct carried out otherthan for a commercial purpose would be prohibited, and be subject to a civilpenalty of 500 penalty units (also $105,000).

1.167 'Academic cheating service' is defined to mean the 'provision of work toor the undertaking of work for students' in circumstances where that workeither:

is, or forms a substantial part of, an assessment task that students are required to personally undertake; or
could reasonably be regarded as being, or forming a substantial part of, an assessment task that students are required to personally undertake.[206]

1.168 The bill would also make it an offence for a person to advertise,publish or broadcast an advertisement for an academic cheating service tostudents undertaking higher education, where either that academic cheatingservice is provided on a commercial basis, or the provision of theadvertisement itself is conducted for a commercial purpose.[207] This offence would also be punishable by imprisonment for two years, or 500penalty units (currently $105,000),[208] or both. The same conduct, carried out other than for a commercial purpose, orrelating to an academic cheating service which is not carried out for acommercial purpose, would be subject to a civil penalty of 500 penalty units(also $105,000).[209]

1.169 Additionally, the bill would give the Tertiary Education Quality andStandards Agency (TEQSA) the power to apply to the Federal Court of Australiafor an injunction requiring a carriage provider to take reasonable steps todisable access to an online location that contravenes, or facilitates acontravention of these new provisions.[210]

Preliminary international human rights legal advice

Right to equality and non-discrimination

1.170 Sections 114A and 114B seek to make it an offence, or subject to a civilpenalty, to provide or advertise, academic cheating services other than for acommercial purpose. Section 114C outlines the constitutional heads of power onwhich these two sections would be based. These include the power to legislatewith regards to aliens pursuant to paragraph 51(xix) of the Constitution.[211] The alternatively cited constitutional heads of power are the trade andcommerce, corporations and communications power,[212] none of which appear to be relevant in the case of an academic cheating servicewhich is provided on a non-commercial basis conducted in person (rather thanvia a website). The practical effect of this may be that the civil penaltiesfor the provision of, or advertising of, non-commercial academic cheatingservices that operate in person (for example, a person on a university campusoffering services to students) can only operate in relation to 'aliens'.[213] For example, it may be that in many instances the federal government only hasthe power to apply a civil penalty for the provision of a non-commercialacademic cheating service (a service which is itself defined very broadly),where the student in question is an alien and/or the person providing theservice is themselves an alien. This appears to be made evident in subsections114A(4)-(5), which states that it is generally not necessary to prove thatcheating services were offered to a 'particular student', but this does notapply where the student in question is an alien. This appears to anticipatethat the aliens head of power may be the only applicable head of power in someinstances. Additionally, the prohibition on advertising academic cheating servicesis confined, in some instances, to persons who are aliens.[214]

1.171 Consequently, the prohibition of the non-commercial provision of, oradvertisement of, academic cheating services may disproportionately impact on
non-citizens. If this were the case, these measures would appear to engage andlimit the right to equality and non-discrimination.[215] This right provides that everyone is entitled to enjoy their rights withoutdiscrimination of any kind, which encompasses both 'direct' discrimination(where measures have a discriminatory intent) and 'indirect'discrimination (where measures have a discriminatory effect on theenjoyment of rights).[216] Indirect discrimination occurs where 'a ruleor measure that is neutral at face value or without intent to discriminate',exclusively or disproportionately affects people with a particular protectedattribute.[217]

1.172 Differential treatment will not constitute unlawful discrimination ifthe differential treatment is based on reasonable and objective criteria suchthat it serves a legitimate objective, is rationally connected to thatobjective and is a proportionate means of achieving that objective.[218] As the statement of compatibility does not identify that the right to equalityand non-discrimination is engaged, no assessment of its engagement is provided.Further information is required in order to assess the engagement of this right.

Right to a fair trial

1.173 As noted above, subsections 114A(3) and 114B(2) seek to prohibit conductrelated to the provision of academic cheating services in a non-commercialcontext. The proposed penalty for this conduct is 500 civil penalty units,which currently equates to a pecuniary penalty of $105,000.[219] Under Australian law, civil penalty provisions are dealt with in accordancewith the rules and procedures that apply in relation to civil matters (forexample, the burden of proof is on the balance of probabilities). However, ifthe proposed civil penalty provisions are regarded as 'criminal' for thepurposes of international human rights law, they will engage the criminalprocess rights under articles 14 and 15 of the International Covenant on Civiland Political Rights (ICCPR). The statement of compatibility does not addressthis issue.

1.174 In assessing whether a civil penalty may be considered criminal, it isnecessary to consider:

the domestic classification of the penalty (although the classification of a penalty as 'civil' is not determinative as the term 'criminal' has an autonomous meaning in international human rights law);
the nature and purpose of the penalty: a civil penalty is more likely to be considered 'criminal' in nature if it applies to the public in general rather than a specific regulatory or disciplinary context, and where there is an intention to punish or deter, irrespective of the severity of the penalty; and
third, the severity of the penalty.[220]

1.175 It appears that the proposed civil penalties in subsections 114A(3) and114B(2) would apply to the public in general, rather than in a specificregulatory context. 'Academic cheating service' is defined broadly in the bill,and it would encompass not merely the provision of organised and systematicacademic cheating services, but would also extend to cover individual instancesof academic cheating or assistance. For instance, the provision of freeacademic assistance (which meets the definition of an 'academic cheatingservice') to one student, on one occasion, in relation to one assessment, maycontravene subsection 114A(3). In addition, in relation to whether thereis an intention to punish or deter, the explanatory memorandum statesexplicitly that these civil penalties are intended to deter the provision of,or advertisement of, academic cheating services.[221] It argues that the provision of an academic cheating service, even for anon-commercial purpose, 'undermines the integrity of Australia's highereducation system and can have serious consequences', and so this kind ofcheating should be deterred also.[222] It further states, in relation to the non-commercial advertisement of academiccheating services, that a significant financial penalty is necessary tostrongly deter any person who undertakes such advertisement, 'whether forfinancial reward or even for misguided altruistic reasons'.[223]

1.176 The proposed civil penalties, at $105,000, also appear to be asignificant sanction: they apply to any member of the public, and are the samesum as the proposed financial penalty for the corresponding criminal offence.The explanatory memorandum states that a large proportion of third partycheating takes place on a non-commercial basis, including by friends, family orcommunity members.[224] Noting that the penalty applies to the public at large, rather than in aregulatory context, and is significant penalty to apply to an individual, itmay be that the civil penalty provisions would be regarded as 'criminal' forthe purposes of international human rights law.

1.177 This does not mean that the relevant conduct must be turned into a criminaloffence in domestic law nor does it mean that the civil penalty isillegitimate. Rather, it means that the civil penalty provisions in questionmust be shown to be consistent with the criminal process guarantees set out inarticles 14 and 15 of the ICCPR, including the right not to be tried twice forthe same offence (article 14(7)) and the right to be presumed innocent untilproven guilty according to law (article 14(2)). To the extent the penalties maybe considered 'criminal' for the purposes of international human rights law,the statement of compatibility should explain how the civil penalties arecompatible with these criminal process rights, including whether anylimitations on these rights are permissible.

Freedom of expression

1.178 By permitting TEQSA to seek an injunction requiring a carriage serviceprovider to block access to certain online locations,[225] and prohibiting the advertisement of services which are deemed to constitute'academic cheating services', the measures in this bill engage and may limitthe right to freedom of expression.

1.179 The right to freedom of expression includes the freedom to seek, receiveand impart information and ideas of all kinds, either orally, in writing orprint, in the form of art, or through any other media of an individual's choice.[226] The right may be subject to limitations that are necessary to protect therights or reputations of others,[227] national security, public order, or public health or morals.[228] Additionally, such limitations must be prescribed by law, be rationallyconnected to the objective of the measures and be proportionate.[229]

1.180 The statement of compatibility recognises that the injunction power, inpreventing users in Australia from easily accessing specific websites orreceiving certain search results, would restrict the right of the websiteprovider to impart information.[230] However, it does not recognise the limitation on user's rights to receiveinformation.

1.181 Furthermore, the statement of compatibility does not recognise that theproposed offence and civil penalty provisions for advertising an academiccheating service also engage and limit the right to freedom of expression. Thisis because the offence and civil penalty would have the effect of limiting aperson's right to impart and receive information.

1.182 As to whether the limitation on the right to impart information ispermissible, the statement of compatibility states:

An injunction power is a reasonable, necessary and proportionate response to the need to prevent academic cheating services being accessed by persons in Australia. The injunctions power would be subject to a number of safeguards, by enabling the Court to take account of a wide range of factors under subsection 127A(7) before granting an injunction.[231]

1.183 The explanatory memorandum provides further detail as to the prevalenceof academic cheating services and the need for the measures.[232] However, further information is required in order to assess whether, byaddressing these problems through the creation of offences, civil penalties andthe provision of an injunction power, the right to freedom of expression wouldbe permissibly limited, having particular regard to the specific grounds onwhich the right may be limited.[233]

1.184 The statement of compatibility states that the injunctions power wouldbe subject to several safeguards in subsection 127A(7), being matters which thecourt may take into account in determining whether to grant an injunction.[234] These matters include whether disabling access to an online location would be aproportionate response in the circumstances, the impact on any person or classof persons likely to be affected, whether it is in the public interest todisable access, and any other remedies available under the Act.[235] These may be capable of acting as safeguards in practice, although the court isnot obligated to consider these matters prior to the granting of an injunction.However, no information is provided as to any safeguards that would apply tothe offence and civil penalty provisions, to safeguard the right to freedom ofexpression. As such, further information is necessary in order to assesswhether the right to freedom of expression would be permissibly limited bythese proposed measures.

Concluding observations

1.185 The measures outlined in this bill engage and may limit the right toequality and non-discrimination, right to a fair hearing and right to freedomof expression. As discussed above, further information is required in order toconduct a full assessment of the potential limitations on each of those rights,in particular:

whether any of the proposed criminal offences, or civil penalty provisions (or any part of the criminal offences or civil penalty provisions) will vary in operation depending on whether a person is an Australian citizen;
if the proposed criminal offences or civil penalty provisions would treat Australian citizens and non-citizens (or 'aliens') differently, whether that differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective;
how the civil penalties in the bill are compatible with criminal process rights, including whether any limitations on these rights are permissible;
whether and how the proposed offence or civil penalty for advertising an academic cheating service and the injunction power are necessary to protect the rights or reputations of others, national security, public order, or public health or morals.

Committee view

1.186 The committee notes that this bill would make it an offence toadvertise or provide academic cheating services on a commercial basis, andwould impose a pecuniary penalty on the advertisement or provision of suchservices on a non-commercial basis. The committee notes the legal advice thatthis bill may engage and limit the right to equality and non-discrimination,criminal process rights and the right to freedom of expression. The committeeseeks the minister's advice as to the matters set out at paragraph [1.185].

Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019 and related bills[236]

Purpose	These bills seek to establish a new Commonwealth business registry regime, by modernising Commonwealth registers and establishing a framework for director identification numbers
Portfolio	Treasury
Introduced	House of Representatives, 4 December 2019
Right	Privacy
Status	Seeking additional information

Collection and disclosure of personal information

1.187 The Commonwealth Registers Bill 2019, Treasury Laws Amendment(Modernisation and Other Measures) Bill 2019, Business Names Registration(Fees) Amendment (Registries Modernisation) Bill, Corporations (Fees) Amendment(Registries Modernisation) Bill 2019 and the National Consumer CreditProtection (Fees) Amendment (Registries Modernisation) Bill 2019 constitute alegislative package designed to establish a new business registry regime.[237]

1.188 The package seeks to consolidate the business registers administered bythe Australian Securities and Investments Commission (ASIC) and AustralianBusiness Registry, and provides for the appointment and functions of aregistrar who would be responsible for administering the new registers regime.[238]

1.189 The bills would establish a legal framework by which all directors ofbodies corporate registered under the Corporations Act 2001 (Corporations Act) or Corporations (Aboriginal and Torres Strait Islander)Act 2006 would be required to apply for, and hold, a permanent unique directoridentification number (DIN). The new registrar would be required to issue adirector with a DIN, where they are satisfied the director's identity has beenestablished, and keep a record of the DINs issued to directors.[239] This process would involve the disclosure of personal information to theregistrar.

1.190 The bills would enable the registrar to make, by legislative instrument,data standards on matters relating to the performance of their functions andexercise of their powers.[240] These may address a range of issues relating to the collection and disclosureof information, including:

the type of information which may be collected by the registrar to perform their functions and exercise their powers;
how such information may be collected;
the manner and form in which such information is given to the registrar;
what information is given to the registrar;
how information held by the registrar is to be stored; and
the integration or linking of information held by the registrar.[241]

1.191 The Commonwealth Registers Bill would regulate the disclosure of'protected information' by the registrar,[242] which could include personal information. 'Protected information' is definedbroadly to mean information which is obtained by a person in the course of theperson's official employment; and disclosed to the person or another person, orobtained by the person or another person under, or in relation to, this bill,or under another law of the Commonwealth in connection with particularfunctions or powers of the Registrar.[243]

1.192 The Commonwealth Registers Bill would empower the registrar to make adisclosure framework relating to disclosing protected information.[244] The framework may set out the circumstances in which: protected informationmust not be disclosed without the consent of the person to whom the informationrelates; de-identified personal information may be disclosed; protectedinformation may be disclosed to the general public; and confidentialityagreements are required for disclosure of protected information.[245] The framework may also impose conditions on the disclosure of protectedinformation.[246] The framework must not permit the disclosure of protected information unlessthe registrar is satisfied that the benefits of disclosure outweigh the risksof disclosure, taking into account any mitigation of those risks in accordancewith the disclosure framework.[247]

1.193 The Commonwealth Registers Bill would create an offence for a person whois, or has been, in official employment to make a record of information ordisclose information to another person, where they obtained that information inthe course of their official employment.[248]

Preliminary international human rights legal advice

Right to privacy

1.194 As these bills seek to confer a range of powers and functions on the newregistrar, including the collection and disclosure of personal information, themeasures engage and may limit the right to privacy. This is acknowledged in thestatement of compatibility accompanying the suite of bills.[249] The right to privacy encompasses respect for informational privacy, includingthe right to respect for private and confidential information, particularly thestoring, use and sharing of such information; and the right to control thedissemination of information.[250] The right to privacy may be subject to permissible limitations which areprovided by law and are not arbitrary. In order for limitations not to bearbitrary, the measure must pursue a legitimate objective and be rationallyconnected and proportionate to achieving that objective.[251]

Legitimate objective and rational connection

1.195 The statement of compatibility explains that the collection of personalinformation by the registrar in accordance with data standards 'is required forthe effective operation of the registry regime'.[252] In relation to the disclosure of information, the statement of compatibilityexplains that there are a number of circumstances in which disclosure is authorised,including:

where it is for the purposes of the new regime, or in the course of the person's official employment, or to be used by another official in the course of their employment;
where the person to whom the information relates consents to the disclosure; or
in accordance with the disclosure framework.[253]

1.196 The statement of compatibility sets out the objectives of thesemeasures:

These disclosures achieve a number of legitimate objectives, and ensure that the new registry regime can be effectively administered.

In relation to disclosure within Government, registry information that is required for the administration of other Australian laws is made available for that purpose. Disclosure with consent achieves the benefit of allowing data to be used for other purposes with a public benefit so long as each person to whom the data relates consents to the disclosure.

Disclosure in accordance with the disclosure framework is intended to provide the registrar with flexibility that will provide broader public benefits in the future. It is envisaged that the ability to make a disclosure framework will provide the registrar with flexibility regarding the release of registry information. For example, the framework could allow a trusted user (for instance a university whose IT systems, processes and staff have been vetted) to access information that may not be appropriate for wider dissemination where a social benefit exists and appropriate undertakings are made.[254]

1.197 In relation to disclosure within government, ensuring the effectiveoperation of the registry regime and facilitating the administration of otherlaws may be capable of constituting legitimate objectives under internationalhuman rights law. Further, these measures would appear to be rationallyconnected to those objectives. However, in relation to disclosure in accordancewith the disclosure framework, it is unclear what is meant by the term 'publicbenefit' in the statement of compatibility. Further information as to thenature of this 'public benefit' is required to determine whether the disclosureof personal information under the disclosure framework pursues a legitimateobjective for the purposes of international human rights law, bearing in mindthat to be capable of justifying a proposed limitation on human rights, alegitimate objective must address a pressing or substantial concern, and notsimply seek an outcome regarded as desirable or convenient.[255]

Proportionality

1.198 It is also necessary to consider whether the power to collectinformation pursuant to data standards, or to disclose information pursuant toa disclosure framework, is a proportionate limit on the right to privacy. Inrelation to the scope of information which may potentially be collected anddisclosed, the statement of compatibility explains that:

While the making of the data standards is a matter for the registrar, it is likely that personal information about company officers, financial service licensees and other persons on the current business registers will be collected. This is because such information is required for the effective operation of the registry regime.[256]

1.199 It is not clear what personal details of such officers and licensees islikely to be collected, although it would appear to be restricted to therelevant business context. However, the type of information which may bedisclosed under the proposed disclosure framework appears to be quite broad,extending to any information obtained and disclosed by a person in the courseof their official employment under the relevant Act, or under anotherCommonwealth law in connection with the functions or powers of the registrar.[257] This raises concerns as to whether the measures are sufficiently circumscribed.Further information about the nature and scope of the personal informationwhich is likely to be collected and disclosed under the new regime is thereforenecessary to determine whether these measures constitute a proportionatelimitation on the right to privacy.

1.200 The availability of adequate safeguards to protect the right to privacy isrelevant to assessing the proportionality of a measure that engages and limitsthat right. In this regard, it is noted that there are penalties in place forpersons who engage in unauthorised recording, disclosure or use of protectedinformation.[258] In addition, the disclosure framework enabled by section 16 of theCommonwealth Registers Bill could potentially contain additional safeguards onthe disclosure of protected information. Subsection 16(2) of the CommonwealthRegisters Bill 2019 provides that the disclosure framework may require that protected information only be disclosed in circumstances where theperson to whom the information relates has consented to the disclosure,[259] and the intended recipient is subject to the Australian Privacy Principles andhas entered into a confidentiality agreement.[260] However, whether the disclosure framework contains sufficient safeguards toprotect the right to privacy will ultimately depend on how the framework isdrafted.

1.201 In this regard, it is noted that subsection 16(5) of theCommonwealth Registers Bill states that the disclosure framework must notpermit the disclosure of protected information unless the registrar issatisfied that the benefits of disclosure outweigh the risks of disclosure, takinginto account any mitigation of those risks in accordance with the disclosureframework. This may serve as a safeguard on the right to privacy, however thereis no mandatory requirement that the registrar expressly consider the right toprivacy in making such an assessment. Consequently, whether this would beeffective safeguard would depend on the content of the disclosure framework andhow the measure operates in practice.

1.202 In order to assess the implications of these measures with regards tothe right to privacy, further information is required as to:

what is meant by the term 'public benefit' in relation to the disclosure of information by the registrar in accordance with disclosure framework, and whether it would constitute a legitimate objective for the purposes of international human rights law;
the nature and scope of the personal information which is likely to be collected and disclosed under the new regime;
whether the disclosure framework set out in section 16 of the Commonwealth Registers Bill 2019 is sufficiently circumscribed and accompanied by adequate safeguards (having regard to, but not limited to, the matters set out at subsection 16(2));
whether there exists a detailed outline of the proposed disclosure framework insofar as it relates to the right to privacy; and
any other matters relevant to the adequacy of safeguards in relation to the collection, use, disclosure and detention of personal information pursuant to this suite of bills.

Committee view

1.203 The committee notes the package of bills would establish a newCommonwealth business registry regime and sets out when personal informationrelating to the registry regime may be collected and disclosed. The committeenotes the legal advice on these bills. In order to assess whether thesemeasures constitute a proportionate limitation on the right to privacy, thecommittee seeks the Treasurer's advice as to the matters set out at paragraph [1.202].

Advice only[261]

1.204 The committee notes that the following private members' and senators' bills appears to engage and may limit human rights. Should either of these bills proceed to further stages of debate, the committee may request further information from the legislation proponent as to the human rights compatibility of the bill:

National Consumer Credit Protection Amendment (Small Amount Credit Contract and Consumer Lease Reforms) Bill 2019; and
National Integrity (Parliamentary Standards) Bill 2019.

1.205 Further, the committee draws the following bills and legislative instrument to the attention of the relevant minister or legislation proponent on an advice only basis. The committee does not require a response to these comments.

Crimes Amendment (National Disability Insurance Scheme—Worker Screening) Regulations 2019 [F2019L01397][262]

Purpose	The regulations amend the Crimes Regulations 2019 to prescribe four state and territory National Disability Insurance Scheme (NDIS) worker screening units, and four related state and territory laws, for the purposes of Division 6 of Part VIIC of the Crimes Act 1914
Portfolio	Attorney-General
Authorising legislation	Crimes Act 1914
Last day to disallow	15 sitting days after tabling (tabled in the Senate on 11 November 2019 and the House of Representatives on 25 November 2019). Notice of motion to disallow must be given by 10 February 2020 in the Senate, and 24 February 2020 in the House of Representatives^[263]
Rights	Privacy; work
Status	Advice only

Permitting the disclosure of spent, quashed and pardoned convictions

1.206 The regulations prescribe four state and territory persons and bodiesunder the Crimes Regulations 2019. The effect is that the spent, quashed andpardoned convictions of persons working or seeking to work with persons withdisability under the National Disability Insurance Scheme (NDIS) may bedisclosed to and by NDIS worker screening units, and taken into account bythese units, for the purposes of assessing a person's suitability as adisability worker.

1.207 The exceptions permitting the disclosure of information about a person'scriminal history (including pardons, and quashed and spent convictions) in thecontext of working with persons with disability, are set out in Subdivision AA,Division 6 of Part VIIC of the Crimes Act 1914 (Crimes Act).[264] These regulations prescribe persons and bodies for the purposes of thatSubdivision.

International human rights legal advice

Rights to privacy and work

1.208 As the statement of compatibility acknowledges,[265] by enabling the disclosure, and the taking into account, of informationrelating to a person's spent and quashed convictions, and convictions for whicha person has been pardoned, where that person is seeking employment within theNDIS, the regulations engage and may limit the right to privacy. Insofar as individualsmay be subsequently excluded from employment with the NDIS on the basis oftheir criminal record, and as is acknowledged in the statement ofcompatibility,[266] this information sharing also engages and may limit the right to work.

1.209 The right to privacy includes respect for informational privacy,including the right to respect for private and confidential information,particularly the storing, use and sharing of such information.[267] The right to work provides that everyone must be able to freely accept orchoose their work, and includes a right not to be unfairly deprived of work.[268] The right to work also requires that states provide a system of protectionguaranteeing access to employment. This right must be made available in anon-discriminatory way.[269]

1.210 These rights may be limited, provided such limitations pursue alegitimate objective, are rationally connected to (that is, effective toachieve) that objective, and a proportionate means of achieving that objective.[270]

1.211 The statement of compatibility states that these regulations support theimplementation of nationally consistent NDIS worker screening arrangements,[271] with the paramount objective of protecting persons with disability fromexperiencing harm arising from unsafe supports or services under the NDIS,noting that persons with disability are among the most vulnerable in thecommunity.[272] This is likely to be a legitimate objective for the purposes of internationalhuman rights law.[273]

1.212 The statement of compatibility states that access to a person's fullcriminal or 'behavioural' history is an important and relevant consideration inassessing whether that applicant poses an 'unacceptable risk of harm' topersons with disability.[274] It states that there is 'sufficient research and objective evidence' to supportthe relevance of a criminal record as a basis for determining a person's riskto vulnerable persons.[275] Insofar as including information about spent, quashed and pardoned convictionsmay enable worker screening units to accurately assess a person's suitabilityas a disability support worker in terms of any risk they may pose to a personwith disability, the measure appears to be rationally connected to thisobjective.

1.213 In relation to the proportionality of the proposed measures, thestatement of compatibility notes that the NDIS Check clearance applies only topersons applying for a 'risk assessed role' within the NDIS scheme.[276] It states that those individuals would only be excluded from potentialemployment where their criminal history information was determined to pose anunacceptable risk of harm to persons with disability.[277] Additionally, pursuant to the Inter-Governmental Agreement on NationallyConsistent Worker Screening for the National Disability Insurance Scheme (theIGA), states and territories have agreed to establish review mechanisms in thecase of a decision by an NDIS worker screening unit to exclude or revoke aperson's clearance.[278] If the review mechanisms outlined in the IGA are available at state andterritory level this would operate as a safeguard.

1.214 When the committee examined the legislation establishing the sharing anddisclosure of spent, quashed and pardoned convictions to NDIS worker screeningunits it was advised by the minister that the NDIS worker screening regime is ashared responsibility of Commonwealth, state and territory governments, withthe states and territories responsible for the implementation and operation ofthe regime.[279] As such, the committee previously concluded that as any safeguards would beoperationalised by the states and territories rather than through federallegislation, much will depend on the implementation of the NDIS workerscreening scheme in practice, such that it may be useful for there to beongoing monitoring so as to ensure it is implemented in a manner compatiblewith human rights.[280]

1.215 There may be sufficient safeguards in place to appropriately protect therights to privacy and work, however as any safeguards would be operationalisedby the states and territories rather than through federal legislation, muchwill depend on the implementation of the NDIS worker screening scheme inpractice. As such, the implementation of the NDIS worker screening scheme shouldbe monitored so as to ensure that it is implemented in a manner consistent withhuman rights.

Committee view

1.216 The committee notes that the regulations prescribe fourstate and territory National Disability Insurance Scheme (NDIS) workerscreening units as those that may take into account spent, quashed and pardonedconvictions of persons working or seeking to work with persons with disability,for the purposes of assessing a person's suitability as a disability worker. Thecommittee notes the legal advice that this may engage and limit therights to privacy and work.

1.217 The committee considers there are sufficient safeguards in placeto appropriately protect the rights to privacy and work, however as anysafeguards would be operationalised by the states and territories rather thanthrough federal legislation, much will depend on the implementation of the NDISworker screening scheme in practice. As such, the committee recommends that theimplementation of the NDIS worker screening scheme be monitored so as to ensurethat it is implemented in a manner consistent with human rights.

Discrimination Free Schools Bill 2018[281]

Purpose	This bill seeks to amend the Sex Discrimination Act 1984 and the Fair Work Act 2009 to remove exemptions from the prohibition on certain grounds of discrimination
Legislation Proponent	Senator Di Natale
Introduced	Senate, 16 October 2018, restored to the Notice Paper 4 July 2019
Rights	Equality and non-discrimination; freedom of religion
Status	Advice only

Removal of anti-discrimination exemptions for religious schools

1.218 The bill seeks to amend the Sex Discrimination Act 1984 (Sex DiscriminationAct) and the Fair Work Act 2009 (Fair Work Act) to remove the existingexemptions from the prohibition on discrimination outlined in the SexDiscrimination Act.

Employment

1.219 Sections 14 and 16 of the Sex Discrimination Act make it unlawful for anemployer (or principal) to discriminate against a person on the basis of 'sex,sexual orientation, gender identity, intersex status, marital or relationshipstatus, pregnancy or potential pregnancy, breastfeeding or familyresponsibilities', in relation to a range of actions, including the offer ortermination of employment or contract work.

1.220 These sections are currently subject to a number of exemptions.Paragraph 37(1)(d) of the Sex Discrimination Act provides an exemption for'a body established for religious purposes' to discriminate against a person ifthe discriminatory act or practice 'conforms to the doctrines, tenets orbeliefs of that religion or is necessary to avoid injury to the religioussusceptibilities of adherents of that religion.' Subsections 38(1) and 38(2)further provide a specific exemption for staff members (or contractors) ofreligious educational institutions to discriminate against another person inconnection with their employment or work if they do so 'in good faith in orderto avoid injury to the religious susceptibilities of adherents of that religionor creed'.

1.221 The bill seeks to remove the exemptions contained in paragraph 37(1)(d)and section 38 of the Sex Discrimination Act that apply to educationalinstitutions, with the result that such conduct would be subject to the broadprohibition on discrimination set out in sections 14 and 16.

1.222 The Fair Work Act also contains a number of provisions prohibitingdiscrimination in relation to a 'modern award';[282] an 'enterprise agreement';[283] 'adverse action';[284] or 'termination'[285] on the basis of an 'employee's race, colour, sex, sexual orientation, age,physical or mental disability, marital status, family or carer'sresponsibilities, pregnancy, religion, political opinion, national extractionor social origin.'[286] However, exemptions are provided for religious institutions if the conduct 'isconducted in accordance with the doctrines, tenets, beliefs or teachings of aparticular religion or creed in good faith; and to avoid injury to thereligious susceptibilities of adherents of that religion or creed.'[287]

1.223 The bill also seeks to amend the Fair Work Act, in order to insert a broaddefinition of educational institutions,[288] and to exclude such institutions from these exemptions.

Education or training

1.224 Section 21 of the Sex Discrimination Act makes it unlawful for aneducational authority to discriminate against a person on the basis of 'sex,sexual orientation, gender identity, intersex status, marital or relationshipstatus, pregnancy or potential pregnancy, breastfeeding or family responsibilities',in relation to their admission, expulsion or other treatment as a student.Section 21 is currently subject to a number of exemptions provided undersubsections 37(1) and 38(3) of the Sex Discrimination Act.

1.225 Paragraph 37(1)(d) provides a broad exemption for religious bodies todiscriminate against a person if the discriminatory act or practice 'conformsto the doctrines, tenets or beliefs of that religion or is necessary to avoidinjury to the religious susceptibilities of adherents of that religion', whileparagraphs 37(1)(a)-(b) provide specific exemptions for the ordination,appointment, training, and education of religious leaders.[289] Subsection 38(3) further provides a specific exemption for discrimination onthe grounds of 'sexual orientation, gender identity, marital or relationshipstatus or pregnancy':

in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

1.226 The bill seeks to remove the exemptions contained in paragraph 37(1)(d)and section 38 of the Sex Discrimination Act with the result that such conductwould be subject to the broad prohibition on discrimination as set out insection 21. The specific exemptions in paragraphs 37(1)(a)-(c) would remain.

International human rights legal advice

Removing exemptions for religious schools in connection with employment

Freedom of religion, right to equality and non-discrimination

1.227 By seeking to limit existing exemptions from discrimination laws forreligious educational institutions in relation to the employment of persons, orthe offer or termination of contract work, this bill engages and appears topromote the right to equality and non-discrimination (as is noted in thestatement of compatibility),[290] and to promote non-discrimination in relation to the right to work.[291] The bill may also engage and potentially limit the right to freedom ofreligion.

1.228 Article 18 of the International Covenant on Civil and Political Rights(ICCPR) protects the rights of all persons to think freely, and to entertainideas and hold positions based on conscientious or religious or other beliefs.[292] The right to freedom of religion not only requires that the state should not,through legislative or other measures, impair a person's freedom of religion,but that the state should also take steps to prevent others from coercingpersons into having, or changing, religion.

1.229 The right to freedom of religion includes the right to demonstrateor manifest religious or other beliefs, by way of worship, observance, practiceand teaching.[293] The practice and teaching of religion or belief includes 'acts integral to theconduct by religious groups of their basic affairs, such as the freedom tochoose their religious leaders, priests and teachers, the freedom to establishseminaries or religious schools'.[294] However, while the right to hold a religious or other belief or opinion is anabsolute right,[295] the right to exercise one's belief can be limited given its potentialimpact on others. Article 18(3) of the ICCPR permits restrictions on the freedomto manifest religion or belief only if limitations are prescribed by law andare necessary to protect public safety, order, health or morals, or thefundamental rights and freedoms of others. Such measures must also berationally connected (that is, effective to achieve) and proportionate to oneor more of these listed legitimate objectives.[296] Such restrictions may not be imposed for a discriminatory purpose or applied ina discriminatory manner.[297]

1.230 The exemptions provided under the Fair Work Act currently protectreligious institutions from unlawful discrimination claims on a number ofgrounds, including religious belief. By removing these exemptions entirely, inso far as they apply to educational institutions, this bill would not allowdiscrimination by religious educational institutions in relation to the hiringof teachers or others on the grounds of religious belief.

1.231 By prohibiting discrimination by religious educational institutions ongrounds that include religious belief, including institutions established toeducate religious leaders (such as seminaries training priests), these measuresmay engage and limit the right to freedom of religion.

1.232 The statement of compatibility does not acknowledge that the billengages the right to freedom of religion, but it does state that the billpromotes the right to equality and non-discrimination. As noted at paragraph [1.9]above, the protection of the fundamental rights and freedoms of others isconsidered to be a legitimate objective under article 18(3) of the ICCPR. Thisbill, in expanding the operation of discrimination laws, does appear to engageand promote the right to equality and non-discrimination. As such, it isnecessary to consider the balance between this right and the right to freedomof religion.

1.233 The right to equality and non-discrimination provides that everyone isentitled to enjoy their rights without discrimination of any kind, and that allpeople are equal before the law and entitled without discrimination to equaland non‑discriminatory protection of the law. Discrimination underarticles 2 and 26 of the ICCPR encompasses a distinction based on a personalattribute (such as sex, marital status, or sexual orientation)[298] which has either the purpose ('direct' discrimination), or the effect ('indirect' discrimination), of adversely affecting human rights.[299]

1.234 In removing the legislative exemptions that currently prevent peoplefrom taking unlawful discrimination complaints against persons who discriminateagainst them in the context of their employment by, or contract work for,religious educational institutions, this bill appears to promote the right toequality and
non-discrimination. As such, the measures do appearto be rationally connected to the achievement of the legitimate objective ofpromoting human rights.

1.235 However, it is less clear that the measure is proportionate to theachievement of this objective, in that there may be less rights restrictivemeans available to achieve this objective. The definition of 'educationalinstitution' that this bill proposes to insert into section 12 of the Fair WorkAct is so broad as to potentially include places of education for religiousleaders or members of a religious order, as it applies to any 'school, college,university or other institution at which education or training is provided'.[300] This may make the measures inconsistent with the specific exemption providedunder paragraph 37(1)(b) of the Sex Discrimination Act (and which this billdoes not seek to amend) for the 'training or education of persons seekingordination or appointment as priests, ministers of religion or members of areligious order' (religious leaders). It may be that a more appropriate balancebetween the right to freedom of religion and the right to equality and
non-discrimination could be achieved by providing a higher level of protectionto freedom of religion in relation to the training or education of religiousleaders. As such, it may be appropriate that the proposed definition of'educational institution' in the Fair Work Act be narrowed to ensure thatinstitutions, when providing training or education of religious leaders, remainexempt from the anti-discrimination requirements of the Fair Work Act.

Removing exemptions for religious schools in connection with education or training

Rights to equality and non-discrimination, and freedom of religion

1.236 As acknowledged in the statement of compatibility, this bill, inexpanding the operation of discrimination laws, does appear to engage andpromote the right to equality and non-discrimination, and to promotenon-discrimination in relation to the right to education.[301] The right to equality and non-discrimination is set out in paragraph [1.13]above.

1.237 By removing the legislative exemptions that currently prevent studentsfrom taking unlawful discrimination complaints against persons who discriminateagainst them on the grounds of sexual orientation, gender identity, marital orrelationship status or pregnancy in the context of the provision of education byreligious educational institutions, this bill may engage the right to freedomof religion. It is not clear, however, whether this would constitute alimitation on that right.

1.238 The right to freedom of religion is set out in paragraphs [1.8] and [1.9]above, and protects the rights of all persons to manifest their religion or beliefthrough a range of activities.[302] While this might allow religious schools to discriminate so as to accept onlystudents who practise the same religion, it is unclear that this extends to thepractice of discriminating against students on the grounds of inherentcharacteristics such as sexual orientation, gender identity, marital orrelationship status or pregnancy. Furthermore, the freedom to have or to adopta religion or belief protected under article 18(2) of the ICCPR applies equallyto holders of all beliefs of a non-religious nature, and bars any coercion thatmight compel non-believers to adhere to religious beliefs.[303] This includes policies or practices that restrict access to education oremployment.[304]

1.239 Nonetheless, if the measure were to be construed as a limit, it wouldneed to conform to article 18(3) of the ICCPR, which permits restrictions onthe freedom to manifest religion or belief only if the limitations areprescribed by law and are necessary to protect public safety, order, health ormorals, or the fundamental rights and freedoms of others. Such measures mustalso be rationally connected (that is, effective to achieve) and proportionateto one or more of these listed legitimate objectives.

1.240 The statement of compatibility explains that the objective of thesemeasures is to promote the right to equality and non-discrimination.[305] As such, by protecting the fundamental rights and freedoms of others, thesemeasures would appear to promote a legitimate objective for the purposes ofinternational law and be rationally connected to that objective.

1.241 In terms of proportionality, it is relevant that, unlike the measuresthat apply to the Fair Work Act (discussed above at paragraphs [1.5] to [1.18]),these measures do not affect the capacity of educational institutions todiscriminate on the basis of religion (for example, a catholic school couldcontinue to require that new students subscribed to the tenets of the catholicfaith). Nor do they affect the current exemptions in paragraphs 37(1)(a) and37(1)(b) of the Sex Discrimination Act which allow religious educationalinstitutions to discriminate in relation to the ordination, appointment,training, and education of religious leaders. As such, if they were to beconstrued as a limitation on the right to freedom of religion, these measureswould appear to be a proportionate limitation on that right, given thesesafeguards.

Committee view

Employment

1.242 The committee notes that the bill seeks to remove the currentexemptions from the discrimination provisions in the Sex Discrimination Act1984 and the Fair Work Act 2009 which allow religious schools todiscriminate in an employment context. The committee notes that the legaladvice suggests that this measure may engage and promote the rights to equalityand non-discrimination, but may engage and limit the right to freedom ofreligion. The committee considers that in determining the proportionality ofthe measures, it is necessary to consider the balance between these rights.

1.243 The committee notes, that as currently drafted, this bill wouldappear to prohibit religious educational institutions from engaging indiscriminatory employment practices, even where those institutions are trainingor educating persons seeking ordination or appointment as priests, ministers ofreligion or members of a religious order (religious leaders), and even wherethe discrimination was on the grounds of religious belief. This is ofconsiderable concern. In this respect, the committee considers that thesemeasures are not a proportionate limitation on the right to freedom of religion.

1.244 The committee considers it may be appropriate to amend the proposeddefinition of 'educational institution'[306] to ensure that institutions that train or educate religious leaders are able todiscriminate on the grounds of religious belief in relation to the employmentof teachers.

Education or training

1.245 The committee notes that the bill seeks to remove the currentexemptions from the discrimination provisions in the Sex Discrimination Act1984 which allow religious schools to discriminate in an educationalcontext. The committee notes the legal advice that this measure engages andpromotes the rights to equality and non-discrimination.

1.246 The committee also notes the legal advice that this measure mayengage the right to freedom of religion, and that if the measure were construedto be a limitation on the right to freedom of religion, this would be apermissible limitation in so far as it promotes the rights to equality andnon-discrimination, noting the safeguards that would remain in the SexDiscrimination Act.

1.247 As such the committee makes no further comment in relation tothis matter.

Health Legislation Amendment (Data-matching and Other Matters) Bill 2019[307]

Purpose	This bill amends the National Health Act 1953 and the Health Insurance Act 1973 to enable information held by the Chief Executive Medicare to be used for data-matching purposes for Medicare compliance and related purposes
Portfolio	Health
Introduced	House of Representatives on 23 October 2019
Right	Privacy
Status	Advice only

Use of personal medical information for data-matching purposes

1.248 The bill provides for the collection, disclosure and matching of certaininformation, including medical information. Section 132C enables the secretaryof the Department of Health to disclose certain therapeutic goods administrationinformation to the Chief Executive Medicare for the purposes of data matching.Similarly, section 132D permits private health insurers to disclose informationabout hospital or general treatment to the Chief Executive Medicare for data matchingpurposes.[308] Section 132B permits the Chief Executive Medicare to match certain health datafor compliance related purposes, and subsection 132B(2) allows the ChiefExecutive Medicare to authorise a Commonwealth entity to match information ontheir behalf, which would enable the disclosure of such information to thoseCommonwealth entities to facilitate matching.[309] The bill also amends section 6 of the NationalHealth Act 1953 (National Health Act) so that all or any ofthese powers may be delegated by the Chief Executive Medicare to 'a person'.[310]

International human rights legal advice

Right to privacy

1.249 The collection and disclosure of information, particularly includingpersonal medical information, engages and limits the right to privacy. Theright to privacy includes respect for informational privacy, including theright to respect for private and confidential information, particularly thestoring, use and sharing of such information.[311]

1.250 The right to privacy may be subject to permissible limitations that are providedby law and not arbitrary. In order for limitations not to be arbitrary, the measuremust pursue a legitimate objective and be rationally connected to and proportionateto achieving that objective.[312] In order to be proportionate, a limitation on the right to privacy should onlybe as extensive as is strictly necessary to achieve its legitimate objectiveand should be accompanied by appropriate safeguards.

1.251 The statement of compatibility acknowledges that the measures engage theright to privacy.[313] It states that the objective of the bill is to support the integrity ofAustralia's medicare programs by providing:

additional mechanisms by which the Chief Executive Medicare can ensure whether payments that have been made under the program were made correctly, facilitating recoveries where appropriate and to identify potential inappropriate practice. This means that more money will be able to be reinvested in new services and medications for the Australian community, which will improve access to medicare programs for a greater number of Australians.[314]

1.252 Protecting the financial integrity of Medicare in order to promote theright to health is likely to be a legitimate objective for the purposes ofinternational human rights law, and collecting and disclosing relevant medicalinformation[315] for the purposes of facilitating data-matching appears to be rationallyconnected to this objective. However, noting the breadth of the informationthat is being collected and disclosed, and that the Chief Executive Medicare isauthorised to delegate all or any of these powers to any person, it is lessclear that the measure is a proportionate limitation on the right to privacy.

1.253 The statement of compatibility addresses the issue of proportionality byproviding that:

Restrictions on the use of information are provided by law to ensure that the information is only used for data matching for specific compliance-related permitted purposes. This means information will only be disclosed when necessary for matching, and only matched when necessary for a permitted purpose. The Bill sets out a number of safeguards in relation to the use of information, including providing the Australian Information Commissioner with oversight and the ability to conduct an assessment. Further, the Minister will be required to make principles dealing with governance of matched data. These principles will be a legislative instrument and will be subject to consultation and scrutiny obligations under the Legislation Act 2003.

1.254 Proposed section 132E of the bill also provides that a breach of one ofthe proposed new provisions would be covered by section 13 of the PrivacyAct 1998. This means that an individual who believes their privacy has beeninterfered with can make a complaint to the Australian InformationCommissioner.

1.255 These safeguards are important and welcome. However, without furtherinformation, such as the details of the minister's principles relating to thegovernance of matched data, and the criteria that will be used by the ChiefExecutive Medicare when determining whether to delegate these powers, there isnot enough information available to assess whether the bill represents aproportionate limitation on the right to privacy.

1.256 In summary, the collection and disclosure of personal medicalinformation engages and limits the right to privacy.

1.257 In order to fully assess the proportionality of these measures, moreinformation would be required as to the availability of safeguards to protectthe right to privacy, including:

how the information collected or disclosed under the bill will be handled (including how long it will be retained);
what safeguards will be in place to prevent on-disclosure of the information collected or disclosed under the bill; and
what criteria will be used by the Chief Executive Medicare when determining whether to delegate all or any of their powers to 'a person', under the proposed amendment to subsection 6 of the National Health Act.

Committee view

1.258 The committee notes that this bill enables information held bythe Chief Executive Medicare to be used for data-matching purposes for Medicarecompliance and related purposes. The committee notes the legal advice that thecollection and disclosure of personal medical information engages and limitsthe right to privacy, however, it also considers that such collection ofinformation which is important in the context of the proper administration ofMedicare is underpinned by important safeguards. However, as this bill has nowpassed both houses of Parliament the committee makes no further comment inrelation to this matter.

Student Identifiers Amendment (Higher Education) Bill 2019[316]

Purpose	This bill seeks to amend the Student Identifiers Act 2014 to: enable the Student Identifiers Registrar to assign a unique student identifier to all higher education students; require that a registered higher education provider not confer a regulated higher education award unless a person has been assigned a student identifier; enable the assignment, collection, use, disclosure and verification of those identifiers; and authorise the minister to give directions to the Registrar about the performance of their functions in relation to higher education
Portfolio	Education
Introduced	House of Representatives, 4 December 2019
Right	Privacy
Status	Advice only

Use and disclosure of student identifiers

1.259 Proposed subsection 18(3) of the bill[317] would authorise the Student Identifiers Registrar (the Registrar) to use ordisclose a student identifier of an individual if it is for the purposes ofresearch that relates directly or indirectly to the provision of highereducation, and meets requirements which are to be specified in a legislativeinstrument.

International human rights legal advice

Right to privacy

1.260 Authorising the Registrar to use or disclose student identifiers for thepurposes of research engages and may limit the right to privacy. The right toprivacy includes respect for informational privacy, including the right torespect for private and confidential information, particularly the storing, useand sharing of such information.[318]

1.261 The statement of compatibility identifies that the bill engages theright to privacy.[319] It states that the legislative instrument which will set out the requirementsthat must be met prior to the use or disclosure of identifiers will ensure that'appropriate limits' are placed around this power, and that the Registrar'spower cannot be exercised prior to the development of this legislativeinstrument.[320] It states that the minister will set out 'robust requirements' in thatinstrument to 'ensure appropriate safeguards are in place', and will take intoaccount 'community expectations surrounding privacy', as well as considering'relevant requirements applicable to the use of student identifiers forresearch in the VET sector and whether they are applicable for highereducation'.[321] It also gives examples of factors that the minister may consider including inthe legislative instrument for the Registrar to take into account prior toexercising this proposed power.[322]

1.262 However, while this legislative instrument could operate as an effectivesafeguard with respect to the right to privacy, the instrument does not exist,and the bill does not, itself, specify matters to which the minister must haveregard in its development. As such, it remains unclear whether the use anddisclosure of student identifiers pursuant to proposed subsection 18(3) wouldimpermissibly limit the right to privacy for the purposes of internationalhuman rights law.

Committee view

1.263 The committee notes that the bill would authorise the use ordisclosure of individual student identifiers for the purposes of research. Thecommittee notes the legal advice and considers it is unclear whether thelegislative instrument required to be developed pursuant to subsection 18(3) ofthe bill would operate effectively as a safeguard to protect the right toprivacy. The committee notes that if this bill passes, it will separatelyconsider any legislative instrument made under the relevant act once it istabled in the Parliament.

1.264 The committee draws this matter to the attention of the ministerand the Parliament.

Transport Security Amendment (Serious Crime) Bill 2019[323]

Purpose	The bill seeks to amend the Aviation Transport Security Act 2004 and the Maritime Transport and Offshore Facilities Security Act 2003 to provide that the regulations may prescribe requirements for the purposes of preventing the use of aviation and maritime transport and offshore facilities in connection with serious crime
Legislation proponent	Home Affairs
Introduced	House of Representatives on 23 October 2019
Right	Work
Status	Advice only

Aviation and maritime security identification card schemes

1.265 The bill seeks to amend the Aviation Transport Security Act 2004 (AviationTransport Act) and the Maritime Transport and Offshore Facilities SecurityAct 2003 (Maritime Transport Act) to provide that regulations may prescriberequirements in order to prevent the use of aviation and maritime transport oroffshore facilities in connection with 'serious crime'. Items 4 and 17 of thebill provide that regulations relating to both Acts may deal with access toareas or zones (including conditions of entry, the use and issue of securitypasses and other identification systems), and the security checking (includingbackground checking) of persons who have access to areas or zones. The proposedamendments also provide that regulations may prescribe penalties of up to 200penalty units (currently $42,000) for offences against those regulations.

International human rights legal advice

Right to work

1.266 The proposed amendments would permit the alteration of the eligibilitycriteria for aviation and maritime security identification cards. As personswithin designated areas or zones are required to display these identificationcards[324] in order to work in these locations, these measures engage and may limit theright to work.

1.267 The right to work provides that everyone must be able to freely acceptor choose their work, and includes a right not to be unfairly deprived of work.The right to work also requires that states provide a system of protectionguaranteeing access to employment. This right must be made available in anon-discriminatory way.[325] The right to work may be limited, provided the limitation pursues a legitimateobjective, is rationally connected to (that is, effective to achieve) thatobjective and a proportionate means of achieving that objective.[326]

1.268 The statement of compatibility does not identify that the bill engagesand may limit the right to work. In general terms, it states that the objectiveof the bill is to reduce criminal influence at Australia's security controlledairports, security regulated ports, and security offshore oil and gasfacilities.[327] Seeking to reduce criminal activity is likely to be a legitimate objective forthe purposes of international human rights law, and prescribing requirementsfor entry to such areas and zones may be rationally connected (that is,effective to achieve) that objective. However, much would depend on the detailof what is set out in the regulations (noting that the bill leaves the detailof how such requirements would be applied to the regulations).

1.269 It is noted that the bill itself does not define what would constitute a'serious crime', nor is it defined in the Aviation Transport Act or theMaritime Transport Act. The explanatory memorandum states that the neweligibility criteria for the security identification card scheme, to bespecified in the regulations:

will introduce new offence categories such as offences relating to: anti-gang or criminal organisation legislation; illegal importation of goods; interfering with goods under customs control; and foreign incursion and requirement.[328]

1.270 This would appear to leave the detail of when a person may be excludedfrom accessing a security identification card to the regulations, and it wouldappear that it is intended to apply to a broad range of conduct. It is also unclearwhether the regulations, in prescribing matters 'in connection with serious crime'would relate only to convictions for criminal offences, or whether they couldextend to charges or investigations for any relevant offences.

1.271 Altering the eligibility criteria for persons to gain access to areas orzones relating to aviation, maritime transport or offshore facilities appearsto engage and may limit the right to work (as persons denied access would beunable to be employed in such areas or zones). This is not acknowledged in thestatement of compatibility.

1.272 The bill leaves to the regulations all of the detail as to when accessto such areas or zones may be denied, including the definition of whatconstitutes 'serious crime'. Without these regulations it is not possible toassess whether the measure permissibly limits the right to work. Should thebill be passed, the regulations may be assessed for compatibility with humanrights.

Committee view

1.273 The committee notes that this bill would provide for regulations,which may prescribe requirements for the purposes of preventing the use ofaviation and maritime transport and offshore facilities in connection withserious crime. The committee notes the legal advice that altering theeligibility criteria for persons to gain access to areas or zones relating toaviation, maritime transport or offshore facilities may engage and limit theright to work (as persons denied access would be unable to be employed in suchareas or zones), which has not been considered in the statement ofcompatibility. However, the committee considers that the limitation appears topursue a legitimate objective, is rationally connected to that objective and aproportionate means of achieving that objective.

1.274 The committee notes that the bill leaves to the regulations allof the detail as to when access to such areas or zones may be denied, includingthe definition of what constitutes 'serious crime'. Without these regulationsit is difficult to assess whether the measure permissibly limits the right towork. Should the bill be passed, the committee will assess the regulations forcompatibility with human rights. The committee draws this matter to theattention of the minister and the Parliament.

Bills and instruments with no committee comment[329]

1.275 The committee has no comment in relation to the following bills which were introduced into the Parliament between 14 October 2019 and 5 December 2019. This is on the basis that the bills do not engage, or only marginally engage, human rights; promote human rights; and/or permissibly limit human rights:[330]

Aged Care Legislation Amendment (New Commissioner Functions) Bill 2019;
Agriculture Legislation Amendment (Streamlining Administration) Bill 2019;
Australian Banks (Government Audit) Bill 2019;
Australian Business Growth Fund Bill 2019;
Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019;
Climate Change Authority Amendment (Impact of 3 Degrees of Global Warming on Australia) Bill 2019;
Coal Prohibition (Quit Coal) Bill 2019;
Commonwealth Electoral Amendment (Lowering Voting Age and Increasing Voter Participation) Bill 2019;
Commonwealth Electoral Amendment (Lowering the Disclosure Threshold) Bill 2019;
Commonwealth Electoral Amendment (Transparency Measures-Lowering the Disclosure Threshold) Bill 2019
Commonwealth Electoral Amendment (Transparency Measures-Real Time Disclosure) Bill 2019;
Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019;
Crimes Legislation Amendment (Age of Criminal Responsibility) Bill 2019;
Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019;
Customs Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Bill 2019;
Customs Tariff Amendment (Growing Australian Export Opportunities Across the Asia-Pacific) Bill 2019;
Education Legislation Amendment (2019 Measures No. 1) Bill 2019;
Export Control Bill 2019;
Export Charges (Imposition—Customs) Amendment Bill 2019;
Export Charges (Imposition—Excise) Amendment Bill 2019;
Export Charges (Imposition—General) Amendment Bill 2019;
Export Control (Consequential Amendments and Transitional Provisions)
Bill 2019;
Fair Work Amendment (Restoring Penalty Rates) Bill 2018 [No. 2];
Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Bill 2019;
Farm Household Support Amendment (Relief Measures) Bill (No. 1) 2019;
Farm Household Support Amendment (Relief Measures) Bill (No. 2) 2019;
Federal Circuit and Family Court of Australia Bill 2019;
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019;
Financial Sector Reform (Hayne Royal Commission Response—Protecting Consumers (2019 Measures)) Bill 2019;
Financial Sector Reform (Hayne Royal Commission Response—Stronger Regulators (2019 Measures)) Bill 2019;
Foreign Acquisitions and Rakeovers Fees Imposition Amendment (Near-new Dwelling Interests) Bill 2019;
Governor-General Amendment (Cessation of Allowances in the Public Interest) Bill 2019;
Interactive Gambling Amendment (National Self-exclusion Register) Bill 2019;
Live Animal Export Prohibition (Ending Cruelty) Bill 2019;
Maritime Safety (Domestic Commercial Vessel) National law Amendment (Improving Safety) Bill 2019;
Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2019;
Migration Amendment (Regulation of Migration Agents) Bill 2019;
National Consumer Credit Protection Amendment (Mandatory Credit Reporting and Other Measures) Bill 2019;
National Self-exclusion Register (Cost Recovery Levy) Bill 2019;
National Vocational Education and Training Regulator Amendment Bill 2019;
Official Development Assistance Multilateral Replenishment Obligations (Special Appropriation) Bill 2019;
Offshore Petroleum and Greenhouse Gas Storage Amendment
(Cross-boundary Greenhouse Gas Titles and Other Measures) Bill 2019;
Offshore Petroleum and Greenhouse Gas Storage (Regulatory Levies) Amendment (Miscellaneous Measures) Bill 2019;
Private Health Insurance Legislation Amendment (Fairer Rules for General Treatments) Bill 2019;
Productivity Commission Amendment (Addressing Inequality) Bill 2017;
Protecting Australian Dairy Bill 2019;
Public Governance Performance and Accountability Amendment (Tax Transparency in Procurement and Grants) Bill 2019;
Public Governance, Performance and Accountability Amendment (Waiver of Debt and Act of Grace Payments) Bill 2019;
Refugee Protection Bill 2019;
Saving Australian Dairy Bill 2019;
Special Recreational Vessels Bill 2019;
Student Identifiers Amendment (Enhanced Student Permissions) Bill 2019;
Telecommunications Amendment (Repairing Assistance and Access) Bill 2019;
Telecommunications (Interception and Access) Amendment (Assistance and Access Amendments Review) Bill 2019;
Telecommunications Legislation Amendment (Competition and Consumer) Bill 2019;
Telecommunications (Regional Broadband Scheme) Charge Bill 2019;
Trade Support Loans Amendment (Improving Administration) Bill 2019;
Transport Security Amendment (Testing and Training) Bill 2019;
Treasury Laws Amendment (2019 Measures No. 3) Bill 2019;
Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures) Bill 2019;
Treasury Laws Amendment (Research and Development Tax Incentive)
Bill 2019;
Treasury Laws Amendment (Your Superannuation, Your Choice) Bill 2019; and
Wine Australia Amendment (Label Directory) Bill 2019.

1.276 The committee has examined the legislative instruments registered on the Federal Register of Legislation between 20 September and 3 December 2019.[331] The committee has reported on 5 legislative instruments from this period earlier in this chapter. The committee has determined not to comment on the remaining instruments from this period on the basis that the instruments do not engage, or only marginally engage, human rights; promote human rights; and/or permissibly limit human rights.

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