On 10 October 2024 the Parliamentary Joint Committee on Human Rights tabled its Report 9 of 2024, which provides an analysis of the human rights compatibility of recently introduced bills and legislative instruments.
Aged Care Bill 2024
- This bill seeks to establish a legislative framework for the Commonwealth aged care system, including by providing legislative authority for the delivery of, and funding arrangements for, funded aged care services to individuals, which may include access to subsidised accommodation, food and other services to assist with daily living. The committee considers that several measures in the bill would promote human rights, including rights to an adequate standard of living and health, and the rights of people with disability. However, the committee considers that several measures in the bill also engage and limit multiple human rights, including the rights of persons with disabilities, the right to equality and non-discrimination, access to justice, effective remedy and the right to privacy.
- Measures in the bill that the committee has commented on are: the inclusion of a Statement of Rights that registered provides must comply with in delivering funded aged care services; rules to be made regarding the use of restrictive practices; a supporter framework by which a person may be registered as a supporter of an individual who may be given decision-making authority to act and make decisions on behalf of the individual in exceptional circumstances; the publication of banning orders; and the sharing, use and disclosure of personal information. The committee has provided recommendations in relation to these measures to improve their human rights compatibility, and draws its human rights concerns to the attention of the minister and the Parliament.
Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill 2024
- The committee considers that provisions in the bill which abrogate the privilege against self-incrimination risk being incompatible with the right to a fair trial and recommends consideration be given to the inclusion of a derivative use immunity. The committee also considers that there is a risk the significant civil penalties may be regarded as criminal under international human rights law and, if this were the case, they would not be consistent with criminal process guarantees. The committee considers that there is a risk that the disclosure of AUSTRAC information to foreign governments and entities may engage the right to life and freedom from torture, and other cruel, inhuman or degrading treatment or punishment. The committee: recommends the statement of compatibility be updated; considers that, in the event compatibility cannot be assured, that amendments to the bill be considered to address this; and draws its concerns to the attention of the Attorney-General and the Parliament.
Better and Fairer Schools (Information Management) Bill 2024
- The committee considers that while the objective of the measure to assign schools identifiers to all primary and secondary school children is to improve the transfer of student information between entities and support the administration of education, it is not clear whether this is a matter of pressing and substantial concern to warrant limiting the right to privacy and the rights of the child. Further, the majority of the detail of the scheme will be in delegated legislation and it is unclear that the bill contains sufficient privacy safeguards. As such, the committee considers there is a risk the bill impermissibly limits the right to privacy and the rights of the child. The committee has recommended amending the bill and updating the statement of compatibility, and draws its human rights concerns to the attention of the minister and the Parliament.
Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024
- The committee considers the bill may engage and promote numerous human rights in seeking to regulate the dissemination of content on digital communications platforms and notes the comprehensive statement of compatibility provided with the bill. The committee considers that the bill also engages and limits the right to freedom of expression and privacy, and while the bill contains high level safeguards, much of the detail of the scheme would be in delegated legislation. As such there is a risk that, in practice, the bill may not be proportionate with these rights. The committee has recommended amending the bill and updating the statement of compatibility, and draws its human rights concerns to the attention of the minister and the Parliament.
Criminal Code Amendment (Hate Crimes) Bill 2024
- The committee considers that expanding and adding offences in the Criminal Code for intentionally urging or threatening violence against a person or group, and expanding existing offences for publicly displaying prohibited symbols, likely promotes numerous human rights. However, the committee considers that criminalising certain forms of expression would also engage and may impermissibly limit the right to freedom of expression, religion and the right to equality and non-discrimination, and significantly risk being incompatible with the rights of the child. The committee recommends that consideration be given to amendments the committee previously proposed regarding the public display of prohibited symbols and draws these concerns to the attention of the Attorney-General and the Parliament.
Fair Work (Registered Organisations) Amendment (Administration) Bill 2024 and Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024
- The committee considers that the involuntary administration of the CFMEU engages and limits multiple rights, and may engage criminal process guarantees. The committee notes that serious allegations have been raised about the conduct of some officials and associates of the CFMEU’s Construction and General Division, and that as these allegations have not been finally determined by a court, there may be questions as to whether it has been clearly established that the scheme established by these measures is consistent with the guarantees of freedom of association, or with other human rights. The committee recommends that a statement of compatibility be prepared in relation to the determination. However, as the amending Act has now passed, and the involuntary administration scheme has commenced, the committee makes no further comment.
Family Law Amendment Bill 2024
- The committee considers there may be a risk that personal information disclosed pursuant to this measure which allows for the use and disclosure of safety information by Children’s Contact Services in some circumstances may not constitute a proportionate limit on the right to privacy and that much will depend on the content of accreditation rules and how they are implemented in practice. In relation to whether an individual would have an effective remedy given the inclusion of an immunity for the Commonwealth from all civil and criminal liability in relation to acts done in good faith, the committee recommends some amendments to the bill and recommends that the statement of compatibility be updated, and draws its human rights concerns to the attention of the minister and the Parliament.
Online Safety (Relevant Electronic Services - Class 1A and Class 1B Material) Industry Standard 2024 and Online Safety (Designated Electronic Services - Class 1A and Class 1B Material) Industry Standard 2024
- The committee considers that imposing various obligations on relevant electronic and designated internet service providers to regulate certain online materials engages and limits the rights to freedom of expression and privacy. Based on the additional information provided by the eSafety Commissioner, the committee considers that it is unclear that regulating the full range of materials captured by the measures is rationally connected to the stated objectives, the measures may not constitute a proportionate limit, and it is unclear that there would be an effective remedy. The committee recommends that the statement of compatibility be updated, and draws its human rights concerns to the attention of the minister, the eSafety Commissioner and the Parliament.
Tax Agents Services Amendment (Register Information) Regulations 2024
- The committee considers that, based on the minister’s response, the expansion of information on the Tax Practitioner Board public register may constitute a proportionate limit on the rights to just and favourable conditions of work, work and privacy, and recommends that the statement of compatibility be updated.
Work Health and Safety Amendment (Penalties and Engineered Stone and Crystaline Silica Substances) Regulations 2024
- The committee considers that, based on the minister’s response, the disclosure of health monitoring reports to Comcare and a worker’s employer may constitute a proportionate limit on the right to privacy, and recommends that the statement of compatibility be updated.