Bills unlikely to raise human rights concerns


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Bills unlikely to raise human rights concerns

Amending Acts 1901 to 1969 Repeal Bill 2014

Portfolio: Attorney-General
Introduced: House of Representatives, 19 March 2014

1.1        The bill is intended to repeal a number of amending and repeal Acts. The explanatory memorandum for the bill states that it will amend 'over 1000' Acts,[1] and that the repeal of the Acts will not substantially alter existing arrangements or make any change to the substance of the law.

1.2        The bill is accompanied by a statement of compatibility which states that it does not engage any human rights.[2]

1.3                  The committee considers that the bill does not appear to give rise to human rights concerns.

Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014

Portfolio: Attorney-General
Introduced: House of Representatives, 19 March 2014

1.4        This bill seeks to amend the Classification (Publication, Films and Computer Games) Act 1995 (the Classification Act). It also seeks to make consequential amendments to the Broadcasting Services Act 1992.

1.5        The bill proposes a range of amendments to implement a number of reforms based on recommendations of the Australian Law Reform Commission's review of the National Classification Scheme.[3] These include amendments to:

  • broaden the scope of existing exempt film categories and provide greater flexibility for certain films to be exempt from classification requirements;
  • simplify the regulatory requirements for festivals and cultural institutions by removing the need to apply to the Director for a formal exemption from classification requirements;
  • enable certain content to be classified using classification tools (such as online questionnaires that deliver automated decisions);
  • create an explicit requirement in the Classification Act to display classification markings on all classified content;
  • expand the exceptions to the modifications rule so that films and computer games which are subject to certain types of modifications do not require classification again;
  • enable the Attorney-General's Department to notify law enforcement authorities  of potential Refused Classification content without having the content classified first, to help expedite the removal of extremely offensive or illegal content from distribution; and
  • make minor amendments to the Classification Act to improve clarity, address anomalies and enhance administrative efficiency.

1.6        The bill is accompanied by a statement of compatibility which states that the bill engages: the right to freedom of expression;[4] the promotion of the best interests of the child;[5] the right of the child to access information and material from a diversity of national and international sources;[6] the obligation to render appropriate assistance to parents or legal guardians in the performance of their child rearing responsibilities;[7] the obligation to protect children from all forms of sexual exploitation and sexual abuse, including pornographic performances and materials;[8] the right to education;[9] and the right to culture.[10]

1.7                  The committee considers that the bill does not appear to give rise to human rights concerns.

Clean Energy Finance Corporation (Abolition) Bill 2013 [No. 2]

Portfolio: Treasury
Introduced: House of Representatives, 20 March 2014

1.8        This bill proposes to repeal the Clean Energy Finance Corporation Act 2012 (CEFC Act). The bill seeks to give effect to the government’s commitment to abolish the Clean Energy Finance Corporation (CEFC) and will transfer the existing contractual assets and liabilities of the CEFC to the Commonwealth to hold and manage.

1.9        The bill is accompanied by a statement of compatibility which states that it does not engage any human rights.[11]

1.10      The committee considered an identical bill in its First Report of the 44th Parliament.[12]

1.11             The committee considers that this bill does not appear to give rise to human rights concerns.

Defence Force Retirement Benefits Legislation Amendment (Fair Indexation) Bill 2014

Portfolio: Veteran's Affairs
Introduced: House of Representatives, 20 March 2014

1.12      This bill proposes to amends the Defence Forces Retirement Benefits Act 1948 and the Defence Force Retirement and Death Benefits Act 1973 to provide a different pension indexation regime to apply from 1 July 2014 for those Defence Forces Retirement Benefits (DFRB) and Defence Force Retirement and Death Benefits (DFRDB) pensioners who are age 55 or older on either 1 January or 1 July when pensions are indexed.

1.13      The bill is accompanied by a statement of compatibility which states that bill engages a range of human rights, including the right to equality and non-discrimination;[13] the right to social security;[14] the right to an adequate standard of living;[15] and rights in work.[16] The statement of compatibility notes that:

Pensions paid to pensioners under age 55 will continue to be indexed in line with positive movements in the consumer price index. There will be no reduction in the benefits paid to pensioners aged under 55. They will get the benefit of the new indexation arrangements when they reach age 55.[17]

1.14             The committee considers that the bill does not appear to give rise to human rights concerns.

End Cruel Cosmetics Bill 2014

Sponsor: Senator Rhiannon
Introduced: Senate, 18 March 2014

1.15      This bill amends Part 3B of the Industrial Chemicals (Notification and Assessment) Act 1989 to prohibit developing, manufacturing, selling, advertising or importing into Australia cosmetics, or ingredients for cosmetics, which have been tested on live animals.[18] The bill does not extend to substances that are animal-tested for use in medicines or other non-cosmetic uses, to therapeutic goods or to prescribed substances.[19]

1.16      The bill is accompanied by a statement of compatibility which states that it does not engage any human rights.[20] The statement of compatibility adds that the bill does not limit the right to health as it does not impact on medical research and 'only applies to substances that are cosmetics or are developed, manufactured, sold or imported for use as ingredients or components in cosmetics.'[21]

1.17             The committee considers that the bill does not appear to give rise to human rights concerns.

Environment Protection and Biodiversity Conservation Amendment Bill 2014

Sponsor: Senator Ludwig
Introduced: Senate, 18 March 2014

1.18      This bill proposes to amend the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to repeal the sunset provision in section 390SM of that Act. This will enable the Minister to establish an independent expert panel to conduct an assessment of the potential environmental impacts of a declared commercial fishing activity and to prohibit the declared commercial fishing activity while the assessment is undertaken. The amendments restore to the Minister the powers contained within Chapter 5B of the EPBC Act.

1.19      The powers contained within Chapter 5B of the EPBC Act enable the Minister, with the agreement of the Minister administering the Fisheries Management Act 1991, to declare a commercial fishing activity to be a 'declared commercial fishing activity' on an interim basis or for a period of up to 24 months where satisfied of certain criteria. The provisions also create civil penalty and offence provisions for engaging in a declared commercial fishing activity.

Previous consideration by the committee

1.20      The relevant provisions of Part 15B of Chapter 5B of the EPBC Act were included in the EPBC Act by the Environment Protection and Biodiversity Conservation Amendment (Declared Commercial Fishing Activities) Act 2012. The bill for that Act (the 2012 bill)[22] was passed with amendments by the Parliament and received Royal Assent on 19 September 2012.

1.21      The committee considered the 2012 bill in its Third Report of 2012,[23] taking into account the amendments that were made. The committee noted that the amendments to the bill did not appear to give rise to any human rights concerns, but noted that it would ‘generally be good practice to provide a compatibility assessment for amendments where practicable and particularly where the amendments could give rise to human rights concerns.’[24]

1.22      The committee wrote to the then Minister for Sustainability, Water, Population and Communities in relation to the strict liability offence created by new section 390SB and the possible penalty of up to 7 years’ imprisonment for this offence. The committee asked whether it would be appropriate, given the severity of the penalty, for a defence other than the defence of mistake of fact to be available in relation to this offence.[25] The committee also sought clarification as to whether the matters covered by the bill may be considered to fall within the right to a fair hearing under article 14(1) of the ICCPR and, if so, what review rights were available to affected individuals seeking to challenge a declaration or any decisions following from a declaration.[26]

1.23      The then Minister for Sustainability, Water, Population and Communities responded to the committee in a letter of 17 December 2012,[27] providing information in response to the committee’s inquiries. The committee thanked the then Minister for his response and made no further comment on the bill.[28]

Statement of compatibility

1.24      This bill is accompanied by a self-contained statement of compatibility. The statement of compatibility reflects the contents of a revised explanatory memorandum prepared in relation to the 2012 bill. While the statement of compatibility does not include the additional explanation contained in the former Minister’s letter to the committee clarifying why only the defence of mistake of fact should be available under section 390SB, it does contain an explanation of the review rights that may be available to a person affected by a declaration under the legislation which reflects the former Minister’s response to the committee on that issue.

1.25      The restoration of the powers of the Minister under Chapter 5B of the EPBC Act and the operation of the associated provisions does not appear to raise any additional human rights issues to those already considered by the committee in its examination of the 2012 bill.

1.26             The committee expresses its appreciation to Senator Ludwig for ensuring that the statement of compatibility complies with the committee’s expectation that, where the committee has raised concerns in relation to particular measures in a bill, any subsequent reintroduction of the same or substantially the same measure is accompanied by a statement of compatibility addressing the committee’s previously identified concerns.[29] The committee notes it would have been helpful if the statement of compatibility had also addressed the issue of defences available under section 390SB as previously raised by the committee.

1.27             The committee considers that the bill does not appear to give rise to human rights concerns.

Intellectual Property Laws Amendment Bill 2014

Portfolio: Industry
Introduced: House of Representatives, 19 March 2014

1.28      This bill proposes to amend various intellectual property laws. A similar bill was introduced into the Parliament in May 2013, but the legislation was not passed prior to the Parliament being prorogued.

1.29      Schedules 1 and 2 amends Patents Act 1990 to implement the Protocol amending the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property to enable Australian pharmaceutical manufacturers to obtain a licence from the Federal Court to make generic versions of patented medicines and to export these medicines to countries with a demonstrated need.

1.30      Schedule 3 amends the Plant Breeder's Rights Act 1994 to enable the owners of plant breeder’s rights in a plant variety with the option to take action in the Federal Circuit Court against alleged infringers.

1.31      Schedule 4 provides for single application and examination processes for trans-Tasman patents. It also provides for a single trans-Tasman patent attorney regime which will include common qualifications for registration as a patent attorney, a single trans-Tasman IP Attorneys Board and a single trans-Tasman IP Attorneys Disciplinary Tribunal.

1.32      Schedule 5 makes a number of minor administrative amendments to the Patents Act 1990, Trade Marks Act 1995 and the Designs Act 2003, including repealing document retention provisions which are already governed by the Archives Act 1983.

1.33      The bill is accompanied by a statement of compatibility that discusses the bill’s engagement with the right to health[30] and the right to privacy,[31] and concludes that the bill is compatible with human rights.

1.34      The committee agrees that the proposed measures to enable the export of generic versions of patented medicines to developing countries that are experiencing serious public health issues and that have no capacity to manufacture the medicines or purchase them in the normal manner is likely to promote the right to health.

1.35      The committee considers that the information sharing provisions in Schedule 4 appear to be suitably circumscribed and do not appear to give rise to issues of inconsistency with the right to privacy. The committee notes that it had commented on these provisions in its report on the original bill and requested clarification about available safeguards for protecting personal information that is disclosed to officials in New Zealand.[32]

1.36             The committee expresses its appreciation to the Minister for Industry for ensuring that the statement of compatibility for this bill complies with the committee’s expectation that, where the committee has raised concerns in relation to particular measures in a bill, any subsequent reintroduction of the same or substantially the same measure is accompanied by a statement of compatibility addressing the committee’s previously identified concerns.[33]

1.37      The committee notes that the proposed single Trans-Tasman patent attorney regime which will provide for a single set of standards for the accreditation, registration and discipline of patent attorneys in both Australia and New Zealand appear to be consistent with the right to work,[34] the right to non-discrimination,[35] and the right to a fair hearing.[36]

1.38             The committee considers that the bill does not appear to give rise to human rights concerns.

Marriage (Celebrant Registration Charge) Bill 2014

Marriage Amendment (Celebrant Administration and Fees) Bill 2014

Portfolio: Attorney-General
Introduced: House of Representatives, 20 March 2014

1.39      The Marriage Act 1961 establishes three categories of celebrants who are authorised to solemnise marriages under Australian law:

  • Ministers of religion of a recognised denomination, proclaimed under section 26 of the Act, who are nominated by their denomination and registered and regulated by state and territory registries of births, deaths and marriages. 
  • State and territory officers who are authorised to perform marriages as part of their duties and are registered and regulated by state and territory registries of births, deaths and marriages, and 
  • Commonwealth-registered marriage celebrants who are authorised under the Marriage Celebrants Program to perform marriages. This group includes civil celebrants and celebrants who are ministers of religion whose denomination is not proclaimed under section 26 of the Act.

1.40      These two bills propose to implement a 2011-12 Budget measure to introduce cost recovery for the regulation of the third category of authorised celebrants, that is, Commonwealth-registered marriage celebrants. Similar legislation to implement these reforms was introduced into the Parliament in March 2013. However, that legislation was not passed prior to the Parliament being prorogued. These two bills essentially reintroduce the legislative authority for the government to charge Commonwealth-registered marriage celebrants an annual cost recovery levy, the celebrant registration charge.

1.41      The Marriage (Celebrant Registration Charge) Bill 2014 will impose an annual celebrant registration charge with a statutory limit of $600 for the 2014-15 financial year, and provides for indexation of the statutory limit in later financial years. The Marriage Amendment (Celebrant Administration And Fees) Bill 2014 will provide for, among other things:

  • a celebrant registration charge to be imposed from 1 July 2014 on Commonwealth-registered marriage celebrants who are authorised under the Marriage Celebrants Program to perform marriages;
  • the deregistration of celebrants who do not pay the celebrant registration charge or obtain an exemption; and
  • the imposition of a registration application fee for prospective celebrants seeking registration.

1.42      Each bill is accompanied by a statement of compatibility which states that it engages several human rights, including the right to freedom of religion,[37] the right to equality and non-discrimination;[38] and the right to work.[39]

1.43      The committee commented on the original bills in its Sixth Report of 2013.[40] The committee considered that:

  • to the extent that the measures involve a limitation on the exercise of the freedom of religion, they are a permissible limitation of that right, noting in particular the possibility for a religious marriage to follow a civil ceremony;
  • to the extent that the differential treatment of ministers of religion engages the right to equality and non-discrimination, the fact that ministers of proclaimed religions are regulated by state and territory authorities is an objective and reasonable basis on which to treat the two categories of minister differently; and
  • any limitation on the right to work is a reasonable and proportionate measure provided by law in pursuit of a legitimate objective and is permissible.

1.44             The committee considers that these bills do not appear to give rise to human rights concerns.

Parliamentary Joint Committee on the Australia Fund Bill 2014

Sponsor: Mr Palmer
Introduced: House of Representatives, 17 March 2014

1.45      This bill proposes to establish a Parliamentary Joint Committee to investigate establishing an Australia Fund. The Australia Fund would be designed to assist in the support and reconstruction of Australian rural and manufacturing industries in times of crisis, including natural disasters, or in cases of a world financial crisis or unfair market intervention/manipulation.[41]

1.46      The bill is accompanied by a statement of compatibility which states that it does not engage any human rights.[42]

1.47             The committee considers that the bill does not appear to give rise to human rights concerns.

Personal Property Securities Amendment (Deregulatory Measures) Bill 2014

Portfolio: Attorney-General
Introduced: House of Representatives, 19 March 2014

1.48      The bill proposes to amend the Personal Property Securities Act 2009 (the PPS Act) so that leases of serial numbered goods of 90 days or more will no longer be deemed to be PPS leases for the purposes of the PPS Act. This is intended to simplify the deeming provisions in the PPS Act and minimise the need for small and medium hire businesses to make registrations in respect of leases of a term of less than 12 months.

1.49      The bill is accompanied by a statement of compatibility which states that it does not engage any human rights.[43]

1.50             The committee considers that the bill does not appear to give rise to human rights concerns.

Privacy Amendment (Privacy Alerts) Bill 2014

Sponsor: Senator Singh
Introduced: Senate, 20 March 2014

1.51      This bill proposes to amend the Privacy Act 1988 to introduce a framework for the mandatory notification by regulated entities of serious data breaches to the Australian Information Commissioner and to affected individuals. The explanatory memorandum explains that:

Mandatory data breach notification commonly refers to a legal requirement to provide notice to affected persons and the relevant regulator when certain types of personal information are accessed, obtained, used, disclosed, copied, or modified by unauthorised persons. Such unauthorised access may occur following a malicious breach of the secure storage and handling of that information (e.g. a hacker attack), an accidental loss (most commonly of IT equipment or hard copy documents), a negligent or improper disclosure of information, or otherwise.[44]

1.52      The bill seeks to give effect to a recommendation made by the Australian Law Reform Commission in 2008 for the Privacy Act to be amended to require that such notification be given.[45] This is because:

... with advances in technology, entities were increasingly holding larger amounts of personal information in electronic form, raising the risk that a security breach around this information could result in others using the information for identity theft and identity fraud. A notification requirement on entities that suffer data breaches will allow individuals whose personal information has been compromised by a breach to take remedial steps to lessen the adverse impact that might arise from the breach. For example, the individual may wish to change passwords or take other steps to protect his or her personal information.[46]

1.53      The bill provides that, where a regulated entity has suffered a serious data breach, it must notify the individual(s) whose personal information is the subject of the breach as well as the Australian Information Commissioner. The Commissioner may also direct an entity to notify affected individuals of a serious data breach. An entity which fails to notify affected individuals engages in an interference with the privacy of an individual and the Commissioner may pursue a civil penalty against such an entity.

1.54      The bill is accompanied by a statement of compatibility that states that the bill engages the right to privacy,[47] and the right to a fair trial.[48] The statement provides a helpful discussion of the relevant human rights issues and concludes that the bill promotes the right to privacy and that the imposition of civil penalties for breaching the notification requirements is consistent with the right to a fair trial.

Right to privacy

1.55      The committee agrees that the measures proposed by the bill will promote the right to privacy. The committee notes that law enforcement bodies are provided with a narrow exemption from the mandatory notification requirements where compliance would prejudice an enforcement related activity. The committee considers that any limitation of the right to privacy in these circumstances is likely to be reasonable, necessary and proportionate to a legitimate objective.

Civil penalties

1.56      The bill provides that an entity which fails to notify affected individuals of a serious data breach engages in an interference with the privacy of an individual.[49] Under the Privacy Act, interferences with the privacy of an individual may attract a civil penalty where there has been a serious or repeated interference with the privacy of an individual, with a maximum penalty of 2,000 penalty units for individuals and 10,000 penalty units for bodies corporate.

1.57      The committee has previously noted even where a penalty is described as ‘civil’ under national or domestic law it may nonetheless be classified as ‘criminal’ for the purposes of human rights law. Given that the operation of the civil penalty provisions in this instance appears in a regulatory and protective context, it is arguable that the penalties are not ‘criminal’ in nature. Although the penalties are large, it may be argued that they are not excessive in that they apply to regulated entities and in view of the privacy interests that are being protected. The committee considers that the civil penalties that may be imposed in the context of the proposed measures do not appear to give rise to issues of incompatibility with human rights.

1.58             The committee considers that the bill does not appear to give rise to human rights concerns.

Statute Law Revisions Bill (No. 1) 2014

Portfolio: Attorney-General
Introduced: House of Representatives, 19 March 2014

1.59      This bill proposes to correct technical errors that have occurred in Acts as a result of drafting and clerical mistakes and to repeal spent and obsolete provisions and Acts.[50]

1.60      The bill is accompanied by a statement of compatibility which states that it does not engage any human rights.[51]

1.61             The committee considers that the bill does not appear to give rise to human rights concerns.

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