Concluded matters
2.1
This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
2.2
Correspondence relating to these matters is included at Appendix 3.
Law Enforcement Legislation Amendment (State Bodies and Other Measures)
Bill 2016
|
Purpose
|
Amends a range of
legislation to reflect the establishment of the Law Enforcement Conduct
Commission of New South Wales and its inspector and support its functions; to
provide the Independent Broad-based Anti-corruption Commission of Victoria
with investigative powers; and to amend the Proceeds of Crime Act 2002
in respect of the meaning of lawfully acquired property or wealth
|
|
Portfolio
|
Attorney-General
|
|
Introduced
|
House of Representatives,
19 October 2016
|
|
Right
|
Privacy (see Appendix 2)
|
| Previous report |
9 of 2016 |
Background
2.3
The committee first reported on the Law Enforcement Legislation
Amendment (State Bodies and Other Measures) Bill 2016 (the bill) in its Report
9 of 2016, and requested responses from the Attorney-General and Minister
for Justice by 16 December 2016.[1]
2.4
The bill passed both Houses of Parliament on 24 November 2016 and
received Royal Assent on 30 November 2016.
2.5
The Minister for Justice's response to the committee's inquiries,
which included a response on behalf of the Attorney-General, was received on 4
January 2017. The response is discussed below and is reproduced in full at Appendix 3.
Access to communications and telecommunications data by the NSW Law
Enforcement Conduct Commission
2.6
The amendments include the NSW Law Enforcement Conduct Commission (LECC) in the definition of 'eligible
authority' under the Telecommunications (Interception and Access) Act 1979 (TIA
Act) and thereby permit the Attorney‑General to declare the LECC to be an
'interception agency'.[2]
Additionally, the LECC has been included in the definition of 'criminal law‑enforcement
agency' in the TIA Act. The effect of being declared an 'interception agency'
and inclusion as a 'criminal law-enforcement agency' will permit LECC officers
to carry out a range of activities, such as applying for a warrant to access
stored communications content[3]
and self-authorising access to metadata.[4]
2.7
The previous analysis noted that, as the TIA Act was legislated prior to
the establishment of the committee, the scheme has never been required to be
subject to a foundational human rights compatibility assessment in accordance
with the terms of the Human Rights (Parliamentary Scrutiny) Act 2011 (Human
Rights Act). It was noted that the committee was therefore faced with the
difficult task of assessing the human rights compatibility of permitting an
agency to access powers under the TIA Act without the benefit of a foundational
human rights assessment of the Act.
2.8
The previous analysis noted that the statement of compatibility identified
that the measures engage the right to privacy and were stated that they were
proportionate to the stated objective of providing effective frameworks to
identify, investigate and punish corruption and to protect public order through
enforcing the law. It was noted that this appeared to be a legitimate objective
for the purposes of international human rights law, and that access to
telecommunications data and communications would appear to be rationally
connected to this objective.
2.9
However, as to whether the measure is proportionate to the objective
being sought, the previous analysis discussed that the committee had formerly examined
chapter 4 of the TIA Act,[5]
and raised concerns with respect to: whether the internal self‑authorisation
process for access to telecommunications data by 'enforcement agencies'
provided sufficient safeguards in relation to the right to privacy; accessed
data subsequently being used for an unrelated purpose; and safeguards around
the period of retention of such data and the absence of a warrant process.[6]
It was noted that the statement of compatibility for the bill did not address
these concerns.[7]
2.10
The previous analysis also identified that allowing the LECC to be
declared an 'interception agency'[8]
also has implications in relation to the right to privacy, and although access
to private communication is via a warrant regime which itself may be
sufficiently circumscribed, the use of warrants does not provide a complete
answer as to whether chapters 2 and 3 of the TIA Act constitute a proportionate
limit on the right to privacy.[9]
It was noted that further information from the Attorney‑General in
relation to the human rights compatibility of the TIA Act would assist a human
rights assessment of the proposed measures in the context of the TIA Act.[10]
2.11
The committee therefore sought the advice of the Attorney-General on:
-
whether permitting the LECC to access such powers under the TIA
Act constitutes a proportionate limit on the right to privacy (including in
respect of matters previously raised by the committee); and
-
whether an assessment of the TIA Act could be undertaken to
determine its compatibility with the right to privacy (including in respect of
matters previously raised by the committee).
Minister's response
2.12
The Minister for Justice provided the committee with the
Attorney-General's response.
2.13
The Attorney-General's response stated that the Australian government
considers that restricting access under the TIA Act to specified national
security and law enforcement agencies 'supports both the protection of privacy
and needs of criminal law-enforcement agencies given the early stage at which
such disclosures are sought.'
2.14
The Attorney-General also referred to the government's previous response
to the committee in respect of the Telecommunications (Interception and Access)
Amendment (Data Retention) Bill 2014 (Data Retention Bill), which sought to
address the committee's concerns that warrantless access to telecommunications
data be limited to certain categories of serious crimes.[11]
The Attorney-General noted that self-authorisation by an officer of a criminal
law-enforcement agency to access telecommunications data may only occur where:
- it is reasonably necessary for the enforcement of the
criminal law, a law imposing a pecuniary penalty or for the protection of the
public revenue; and
- the authorising officer of an agency is satisfied on
reasonable grounds that any interference with privacy is justifiable and
proportionate.
2.15
However, the Attorney-General's response does not discuss why there is
no limit on the type of criminal offence being investigated for which
telecommunications data can be accessed. As the committee previously noted in
respect of the Data Retention Bill, the scheme allows access to metadata for
the investigation of minor offences, not all of which appear to be sufficiently
serious to justify the interference with the right to privacy that the scheme
imposes.[12]
In the case of the LECC, the Attorney-General's response stated that authorised
officers will 'only be able to authorise the disclosure of data for
investigations into corruption, misconduct and maladministration on the part of
New South Wales law enforcement where that investigation also meets the TIA Act
thresholds'.[13]
However, the Attorney-General's response does not refer to the NSW legislation
which establishes the LECC under the Law Enforcement Conduct Commission Act
2016 (NSW) and the scope of the LECC's complaint handling and investigative
powers under that Act. Pursuant to that Act, investigations can be carried out
in respect of serious maladministration, which is defined as including that the
conduct is unlawful as it constitutes 'an offence'. There does not appear to be
any limit on the level of seriousness of the type of offence that could be
considered to be maladministration.
2.16
The committee previously recommended in respect of the Data Retention
Bill that the TIA Act limit disclosure authorisation for existing data to
instances where it is reasonably necessary for the investigation of specified
serious crimes, categories of serious crimes or the investigation of serious
matters by the Australian Securities and Investments Commission, the Australian
Taxation Office and the Australian Competition and Consumer Commission.[14]
The committee considered this would avoid the disproportionate limitation on
the right to privacy that would result from disclosing telecommunications data
for the investigation of any offence.[15]
As this issue is also unaddressed by the current bill, these concerns therefore
remain.
2.17
The Attorney-General also discussed other existing safeguards: that
agencies, such as the LECC, are restricted by their enabling legislation; and
that in its consideration of the Data Retention Bill, the majority of the committee
noted that the existing requirements in the TIA Act regarding internal agency
authorisation for disclosure of telecommunications data 'provide a sufficient
safeguard to address privacy concerns.' It should be noted, however, that this
split conclusion by the committee was confined to the committee's consideration
of oversight and accountability of the mandatory data retention scheme, and not
the broader issues in respect of the Data Retention Bill.[16]
2.18
The Attorney-General's response also noted that:
[o]nce accessed, telecommunications data may only be
communicated for a purpose connected with the functions of the accessing agency
for the purposes of enforcing the criminal law, a law imposing a pecuniary
penalty or protecting the public revenue. Both the TIA Act and the LECC's
enabling legislation impose criminal liability on LECC officers who communicate
information relating to the disclosure of data for unauthorised purposes.[17]
2.19
The Attorney-General's response also discussed oversight of the access to
and use of telecommunications data by the Commonwealth Ombudsman. It was stated
that this is an effective accountability mechanism that does not risk delaying
law enforcement investigations, or harming the ability of agencies to
investigate crime and safeguard national security in the way that a warrant
regime, proposed by the committee in its consideration of the Data Retention
Bill, would do. It was also noted that the powers within the TIA Act, which are
subject to a warrant, are used in the latter stages of an investigation, and
that access to telecommunications data in the first instance assists in
determining who should be subject to a warrant.
2.20
The Attorney-General's response therefore concluded that 'given the
existing safeguards within the Act, access to the content of private
communications by the LECC is a reasonable and proportionate limitation on the
right to privacy.' In respect of the committee's concerns about the absence of
a warrant process, the Attorney‑General concluded that:
[a]lthough warrants may relate to a broad range of services
and devices, a warrant may only be issued for the purpose of investigating
specific offences that meet thresholds identified in the [TIA] Act and in
relation to services or devices likely to be used by the target.[18]
2.21
While the response therefore discussed some of the committee's previous
concerns and recommendations, the Attorney-General has not identified how the
Ombudsman as an oversight mechanism (which only applies after the exercise of
the power) offers comparable, adequate protections in respect of the right to
privacy as a warrant process. As such, it cannot be determined that the
limitation on the right to privacy is proportionate to the stated objective of
the measure.
2.22
In respect of the committee's query over whether an assessment of the
TIA Act could be undertaken to determine its compatibility with the right to
privacy, the Attorney-General responded that, as the TIA Act was enacted before
the Human Rights Act, there is no requirement that the TIA Act be subject to a
human rights compatibility assessment. It was noted that the Attorney‑General's
Department has 'provided extensive advice regarding the operation of the TIA
Act to this Committee and other Parliamentary bodies' including the committee
in its consideration of the Data Retention Bill. Further, it was noted that:
...in response to recommendation 18 of the Report of the
Inquiry into Potential Reforms of Australia's National Security Legislation
by the Parliamentary Joint Committee on Intelligence and Security in 2013, the
Australian Government agreed to comprehensively revise the [TIA] Act in a
progressive manner. If legislation is introduced to reform the Act, the
Department will undertake a human rights compatibility assessment. The Australian
Government continually reviews the TIA Act to ensure that adequate safeguards
are in place to protect privacy.[19]
2.23
Despite this response, and as noted in the previous analysis, as the
committee has not previously considered chapters 2 and 3 of the TIA Act in
detail, further information from the Attorney-General in relation to the human
rights compatibility of the TIA Act would assist a human rights assessment of
the proposed measures in the context of the TIA Act.
Committee response
2.24
The committee thanks the Attorney-General for his response and
has concluded its examination of this issue.
2.25
The committee notes the Attorney-General's response that there is
no requirement under the Human Rights Act to subject pre-existing legislation
to a human rights compatibility assessment and that the Attorney-General gave
no commitment to publicly undertake a human rights assessment of the TIA Act.
2.26
The committee considers that while there are certain internal and
external safeguards in place in respect of the access to and subsequent use of
telecommunications data, these are insufficient to protect the right to privacy
for the purposes of international human rights law.
2.27
The committee is therefore unable to conclude that the measure,
in extending access to these coercive powers to an additional body, justifiably
limits the right to privacy.
Definition of 'lawfully acquired' under the POC Act
2.28
The bill amended section 336A of the Proceeds of Crime Act 2002 (POC
Act) to provide that property or wealth is not to be considered 'lawfully
acquired' where it has been subject to a security or liability that has wholly
or partly been discharged using property that is not lawfully acquired. This has
the effect of broadening the class of assets that may be subject to being
frozen, restrained or forfeited under the POC Act.
2.29
The previous analysis noted that, as set out in the committee's Guidance
Note 2, even if a penalty is classified as civil or administrative under
domestic law, its content may nevertheless be considered 'criminal' under
international human rights law. It was also noted that the committee's reports
have previously raised concerns that parts of the POC Act may involve the
determination of a criminal charge.[20]
2.30
Although not addressed in the statement of compatibility, the previous
analysis identified that the right to be presumed innocent is engaged and
limited by the measure.[21]
It also identified that the forfeiture of property of a person who has already
been sentenced for an offence may raise concerns regarding the imposition of
double punishment;[22]
and as the measure would have the effect of broadening the class of assets that
may be subject to being frozen, restrained or forfeited under the POC Act, the right
to a fair trial and fair hearing are engaged.[23]
2.31
The committee therefore sought the advice of the Minister for Justice
on:
-
whether the limitation is a reasonable and proportionate measure
for the achievement of its objective (including the sufficiency of safeguards
contained in the POC Act); and
-
whether an assessment of the POC Act could be undertaken to
determine its compatibility with the right to a fair trial and fair hearing in
light of the committee's concerns.
Minister's response
2.32
The minister's response stated that, contrary to the committee's
concern, the measure is not intended to broaden the class of assets that may be
subject to being frozen, restrained or forfeited under Schedule 3 of the POC
Act. The minister stated that, rather, the measure clarifies the intended
meaning of the section in light of the Supreme Court of Western Australia's
decision in Commissioner of the Australian Federal Police v Huang.[24]
2.33
However, the minister stated that if the practical effect of the
amendment is to broaden the scope of assets that can be frozen, restrained or
forfeited, Schedule 3 would engage the right to a fair hearing for civil
hearings. As proceedings under the POC Act are heard by Commonwealth, State and
Territory courts, the minister stated that such proceedings are carried out in
accordance with the relevant procedures in these courts, affording affected
persons adequate opportunity to present his or her case and therefore not
limiting the right to a fair hearing.
2.34
The minister reiterated the government's position that 'proceeds of
crime orders are classified as civil under section 315 of the POC Act and do
not involve the determination of a criminal charge or the imposition of a
criminal penalty.' The minister stated that, for this reason, these orders do
not engage the rights set out in the International Covenant on Civil and
Political Rights (ICCPR) that relate to minimum guarantees in criminal
proceedings. The minister stated that as proceedings under the POC Act provide
for a right to a fair hearing, the amendments do not limit the right to a fair
trial under article 14 of the ICCPR.
2.35
However, as noted in the previous analysis, and as stated above, even where
a penalty is classified as civil or administrative under domestic law, its
content may nevertheless be considered 'criminal' under international human
rights law.[25]
If a measure is considered criminal for the purposes of international human
rights law, it must comply with the minimum guarantees that apply in criminal
proceedings, such as the right to be presumed innocent and the prohibition of
double punishment.
2.36
As the committee has previously noted, 'it is clear that the POC Act
provides law enforcement agencies [with] important and necessary tools in the
fight against crime in Australia'.[26]
If forfeiture orders are assessed as involving the determination of a criminal
charge, this does not suggest that such measures cannot be taken – rather, it
requires that such measures are demonstrated to be consistent with the criminal
process rights under articles 14 and 15 of the ICCPR.
2.37
The minister's response has not responded to the assessment regarding
the determination of a criminal charge, or described how the measure is proportionate
to the stated objective of ensuring that criminals are not able to maintain
ownership over property or wealth that is obtained, either directly or
indirectly, using proceeds of crime'.[27]
2.38
In respect of the committee's query over whether an assessment of the
POC Act could be undertaken to determine its compatibility with the right
to a fair trial and fair hearing in light of the committee's concerns, the
minister stated:
[l]egislation established prior to the enactment of the
[Human Rights Act] is not required to be subject to a human rights
compatibility assessment. The Australian Government continually reviews the POC
Act to ensure that it addresses emerging trends in criminal conduct and will
continue to undertake a human rights compatibility assessment where a Bill
amends the Act.[28]
2.39
As noted in the previous analysis, in light of the committee's previously
raised concerns about the sufficiency of safeguards in the POC Act to protect
the right to a fair trial and the right to a fair hearing, in order to fully
assess the compatibility of the proposed measures it is necessary for a
detailed assessment of the POC Act in respect of these concerns to be
undertaken.
Committee response
2.40
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.41
The committee notes that the bill may have the effect of
broadening the scope of assets that can be frozen, restrained or forfeited
under the POC Act, and therefore expands the operation of the POC Act. The
committee reiterates its earlier comments that the proceeds of crime
legislation provides law enforcement agencies with important and necessary
tools in the fight against crime. However, it also raises concerns regarding
the right to a fair hearing and the right to a fair trial, as although a penalty
is classified as civil or administrative under domestic law, its content may
nevertheless be considered 'criminal' under international human rights law.
The committee reiterates its previous view that the POC Act would
benefit from a full review of the human rights compatibility of the
legislation.
2.42
Noting the preceding analysis, the committee draws the human
rights implications of the provisions relating to the proceeds of crime to the
attention of the Parliament.
Privacy Amendment (Notifiable Data Breaches) Bill 2016
|
Purpose
|
Proposes to amend the Privacy
Act 1988 to impose a data breach notification requirement on entities
regulated by the Act
|
|
Portfolio
|
Attorney-General
|
|
Introduced
|
House of Representatives,
19 October 2016
|
|
Rights
|
Privacy; effective remedy (see
Appendix 2)
|
|
Previous report
|
8 of 2016
|
Background
2.43
The committee first reported on the Privacy Amendment (Notifiable Data
Breaches) Bill 2016 (the bill) in its Report 8 of 2016, and requested a
response from the Attorney-General by 8 December 2016.[29]
2.44
The bill remains before the House of Representatives.
2.45
The Attorney-General's response to the committee's inquiries was
received on 28 November 2016. The response is discussed below and is reproduced
in full at Appendix 3.
Accessing personal data and the right to an effective remedy
2.46
The bill seeks to impose a mandatory data breach notification
requirement on entities regulated by the Privacy Act 1988 (Privacy Act).[30]
A data breach will arise where there has been unauthorised access to, or
unauthorised disclosure of, personal information about one or more individuals,
or data is lost in circumstances likely to give rise to unauthorised access or
disclosure. Failure to comply with these obligations is deemed to be an
interference with the privacy of an individual for the purposes of the Privacy
Act. The bill allows for a number of exceptions to this mandatory notification
requirement.[31]
2.47
The bill appears to address the government's intention[32]
to introduce legislation to enact a mandatory data breach notification scheme.[33]
In the committee's consideration of the Telecommunications (Interception and
Access) Amendment (Data Retention) Bill 2014 (TIA bill) in its Thirtieth
report of the 44th Parliament, the committee welcomed the
Attorney-General's advice that such legislation would be introduced. The
committee noted that, depending on the extent of the notification scheme, such
a bill could address many of the committee's concerns in relation to that bill
as to whether a person could seek redress in respect of breaches of their right
to privacy and freedom of expression relating to the interception of their
telecommunications data.
2.48
At the time, the committee also noted that it would assess any such
proposed legislation in future to determine whether it addresses these
concerns.[34]
However, the current bill applies only to unauthorised access to, or disclosure
of, personal information or data loss. It does not apply to lawful interception
of telecommunications data pursuant to the Telecommunications (Interception
and Access) Act 1979 (TIA Act), which was also considered by the committee
at the time.
2.49
The committee therefore sought the advice of the Attorney-General as to
whether the bill could be amended to ensure that individuals are notified when
their telecommunications data has been lawfully accessed (noting that there may
be circumstances where such notification would need to be delayed in order to
avoid jeopardising an ongoing investigation).
Attorney-General's response
2.50
In his response, the Attorney-General referred the committee to the
February 2015 Advisory Report on the Telecommunications (Interception and
Access) Amendment (Data Retention) Bill 2014 by the Parliamentary Joint
Committee on Intelligence and Security (PJCIS). In that report, and on the
basis of concern about data breaches compromising the security of retained
telecommunications data and the absence of a broad-based mandatory data breach
notification requirement in Australia, the PJCIS recommended the introduction
of a mandatory data breach notification scheme.
2.51
The Attorney-General stated that investigations would be hampered by a
requirement to notify individuals when their telecommunications data had been
accessed for law enforcement or national security purposes. The
Attorney-General further stated that:
[t]he covert investigative powers contained in the Act are
generally used where the integrity of an investigation would be compromised by
revealing its existence.
2.52
In response to the committee's suggestion that in some circumstances
notifications be delayed, the Attorney-General stated that this would carry
similar risks, as:
[i]nvestigations into serious criminality (such as counter
terrorism, child exploitation or serious and organised crime) can be
protracted, and would be difficult to determine when data might be
appropriately disclosed. Notification, delayed or otherwise, could expose
police methodologies. The existing law reflects that policy position.
2.53
In his response, the Attorney-General also referred to the 'stringent
safeguards' in place in respect of lawful access to telecommunications data,
including that:
-
direct covert access to telecommunications data is limited to a
defined set of law enforcement and security agencies and authorised officers
within those agencies will only disclose such data where it is 'reasonably
necessary for the enforcement of criminal law, a law imposing a pecuniary
penalty or the protection of the public revenue';
-
the Australian Security Intelligence Organisation may authorise
access to telecommunications data for the performance of its functions, subject
to a statutory requirement that an authorising officer must be satisfied on
reasonable grounds that any interference with privacy is justifiable and
proportionate; and
-
agency access is subject to oversight by the Commonwealth
Ombudsman and the Inspector-General of Intelligence and Security.
2.54
The committee has previously stated that, in the context of the
accessing of telecommunications data, the right to an effective remedy would be
supported by a notification requirement. This is because, for example, it would
be impossible for an individual to seek redress for breach of their right to
privacy if they did not know that data pertaining to them had been subject to
an access authorisation.[35]
It is noted that this bill, in applying only to unauthorised access to, or
disclosure of, personal information or data loss, does not apply to lawful
interception of telecommunications data pursuant to the TIA Act. As such, this
bill does not address the committee's previous concerns in relation to the TIA
bill as to whether a person could seek redress in respect of breaches of their
right to privacy and freedom of expression relating to the interception of
their telecommunications data.
2.55
However, the bill itself, as noted in the initial human rights analysis,
does broadly promote the right to privacy and is likely to be compatible with
international human rights law.
Committee response
2.56
The committee thanks the Attorney-General for his response and
has concluded its examination of this issue.
2.57
The committee notes that the bill promotes the right to privacy.
The committee notes that the bill does not address the committee's previous
concerns in relation to the Telecommunications (Interception and Access)
Amendment (Data Retention) Bill 2014 as it applies only to unauthorised access
to, or disclosure of, personal information or data loss and does not apply to the
lawful interception of telecommunications data.
Sex Discrimination Amendment (Exemptions) Regulation 2016 [F2016L01445]
|
Purpose
|
Amends the Sex
Discrimination Regulations 1984 to extend for a further 12-month period the
prescription of two Western Australian Acts as exempt under the Sex
Discrimination Act 1984, with the effect that an exemption would be
provided for conduct taken in direct compliance with these Acts that would
otherwise constitute unlawful discrimination on the grounds of sexual
orientation, gender identity or intersex status
|
|
Portfolio
|
Attorney-General
|
|
Authorising legislation
|
Sex Discrimination Act
1984
|
|
Last day to disallow
|
1 December 2016
|
|
Right
|
Equality and
non-discrimination (see Appendix 2)
|
|
Previous report
|
9 of 2016
|
Background
2.58
The committee first reported on the instrument in its Report 9 of
2016, and requested a response from the Attorney-General by 16 December
2016.[36]
2.59
The Attorney-General's response to the committee's inquiries was
received on 21 December 2016. The response is discussed below and is reproduced
in full at Appendix 3.
Extension of prescription period
2.60
Section 5 of the Sex Discrimination Regulations 1984 (the regulations) provided
that all Commonwealth, state and territory laws as in force at 1 August 2013
were initially prescribed by the regulations as exempt from complying with
provisions of the Sex Discrimination Act 1984 prohibiting discrimination
on the grounds of sexual orientation, gender identity of intersex status until
31 July 2014. This was to allow time for jurisdictions to review their laws and
assess compliance with the new protections against these forms of
discrimination, and provide protections against discrimination for same-sex de
facto couples which were introduced in 2013.[37]
2.61
The Sex Discrimination Amendment (Exemptions) Regulation 2014 extended
the sunset date applying to the prescription of state and territory laws for a 12‑month
period to 31 July 2015. The Sex Discrimination Amendment (Exemptions)
Regulation 2015 then extended this for a further 12 month period until 31 July
2016.
2.62
The Sex Discrimination Amendment (Exemptions) Regulation 2016
(the regulation) has now extended the prescription of two Western
Australian Acts (WA Acts); the Human Reproductive Technology Act 1991
(WA), and Surrogacy Act 2008 (WA), for a further 12-month period until
31 July 2017.
2.63
As the regulation further extends the period in which actions that would
otherwise constitute unlawful discrimination under the prescribed legislation
would be exempted from these protections, the committee noted that the measure
engages and limits the right to equality and non-discrimination. The committee
identified that questions arise as to whether this measure is rationally
connected and/or proportionate to this stated objective.
2.64
The committee therefore sought the advice of the Attorney-General as to whether
the further 12-month prescription period in respect of the WA Acts is effective
in achieving and/or proportionate to its apparent objective, and in particular,
why the previous three-year period has been insufficient to implement the
necessary amendments to these laws to ensure compliance with the protections
against discrimination on the basis of a person's sexual orientation, gender
identity and intersex status.
Attorney-General's response
2.65
In his response, the Attorney-General stated that the Western Australian
Government indicated the further extension of time was required to facilitate
the amendment of the two WA Acts.[38]
2.66
The Attorney-General stated that while the government does not consider
that a state should continue to discriminate against people on the basis of
their sexual orientation, gender identity and/or intersex status, the
government:
...acknowledges that the regulation of assisted reproductive
technology and surrogacy is a sensitive issue that is primarily a matter for
states and territories and that the Western Australian government should be
granted additional time to properly consult the Western Australian community
about options for reform in this area.
2.67
The Attorney-General stated that the limitation is proportionate on the
basis that it allows a 'sufficient yet not overly lengthy time' for the Western
Australian Government to properly consult with the Western Australian community
on options for reform to its legislation. The Attorney-General noted that the
Western Australian Government has advised that it does not propose any further
extensions of this exemption after 31 July 2017.
2.68
However, the response does not indicate why the preceding three-year
period has been inadequate to perform such consultation. As noted in the
previous human rights analysis, at the end of the extended prescription period
on 31 July 2017, the two WA Acts will have been exempted for a total of four
years since the measures came into effect, preventing individuals who may
continue to be subject to discrimination under these WA Acts from accessing legal
recourse.
2.69
As noted in the previous human rights analysis, continuing to subject
individuals to discriminatory laws for any length of time is a serious issue
from the perspective of the right to equality and non-discrimination.
Committee response
2.70
The committee thanks the Attorney-General for his response and
has concluded its examination of this issue.
2.71
As the committee previously acknowledged, the measure appears to pursue
the apparent objective of allowing states and territories adequate time in
which to review their legislation and assess compliance with the new
protections, and amend relevant laws accordingly.
2.72
While continuing to subject individuals to discriminatory laws
for any length of time is a serious issue from the perspective of the right to
equality and non-discrimination, the committee notes the Attorney-General's
response that more time is needed to allow consultation on options for reform
and that no extension after 31 July 2017 is proposed.
Mr Ian Goodenough MP
Chair
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